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11/06/97 ESTATE JOEL F. KIRK v. HARRIS BANK

November 6, 1997

IN RE ESTATE OF JOEL F. KIRK, DECEASED; (CHERYL A. KIRK O'CONNOR, INDIV. AND AS GUARDIAN OF THE ESTATE OF JOEL F. KIRK II, A MINOR, LISA KIRK STAVER, LYNDA KIRK JONES, AND DEBRA LEE KIRK, PETITIONERS-APPELLANTS,
v.
HARRIS BANK BARRINGTON, N.A., RESPONDENT-APPELLEE).



Appeal from the Circuit Court of McHenry County. No. 89--P--252. Honorable Henry L. Cowlin and Michael J. Sullivan, Judges, Presiding.

Released for Publication December 4, 1997.

Presiding Justice Geiger delivered the opinion of the court. Inglis and Bowman, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The petitioners, Cheryl Kirk O'Connor, individually and as guardian of the estate of Joel F. Kirk II, a minor, Lisa Kirk Staver, Lynda Kirk Jones, and Debra Lee Kirk, appeal from the following orders of the circuit court of McHenry County: (1) the October 8, 1996, order denying the petitioners' request to remove Paul Lahti as the attorney representing the estate; (2) the November 21, 1996, order awarding Lahti $26,430 in attorney fees and $536.31 in costs; and (3) the December 4, 1996, order closing the estate and discharging the executor. For the following reasons, we affirm.

At the outset, we note that this is the second occasion that this case has been before this court. See In re Estate of Kirk, 242 Ill. App. 3d 68, 183 Ill. Dec. 274, 611 N.E.2d 537 (1993). As our prior disposition provides an adequate summary of the factual background and procedural posture of this case, we repeat only those facts necessary to the disposition of the instant appeal.

On July 19, 1989, the decedent, Joel F. Kirk, died in the performance of his duties as an airline pilot during the crash landing of United Airlines Flight 232 in Sioux City, Iowa. Kirk was survived by his daughters, Cheryl Kirk O'Connor, Lisa Kirk Staver, and Lynda Kirk Jones, and two children who were minors at the time of his death, Debra L. Kirk and Joel F. Kirk II (collectively referred to as the heirs). On August 22, 1989, prior to the presentation of the decedent's will for probate, Cheryl O'Connor was appointed guardian of the estate and person of the minor children in the circuit court of Boone County.

The decedent's will nominated the First National Bank and Trust Company of Barrington (now known as Harris Bank Barrington, N.A.) (bank) and Janet Kirk as executors. The bank was also nominated as guardian of the estate of Kirk's minor children. Janet Kirk and the decedent were married and divorced on two separate occasions. Their second marriage was dissolved on July 13, 1988.

On September 11, 1989, the bank filed a petition in the circuit court of McHenry County for probate of will and for letters testamentary. On September 14, 1989, the bank filed a petition in the circuit court of Boone County seeking to remove Cheryl O'Connor as guardian of the estate of the minor children.

On September 26, 1989, the circuit court of McHenry County admitted the decedent's will to probate and appointed the bank as executor. The bank retained attorney Paul Lahti as its representative in the probate proceedings.

On September 10, 1990, the heirs filed a petition in the circuit court of McHenry County seeking removal of the bank as executor. The petition alleged that the bank had engaged in numerous improprieties, including: (1) attempting to remove Cheryl O'Connor as guardian of the estate of Joel Kirk II and Debra Kirk; (2) mismanaging the inventory and distribution of estate property, including the decedent's United States Savings Bonds; (3) mismanaging the sale of the decedent's residence; and (4) incurring penalties as a result of the late filing and payment of the federal and state inheritance tax. The heirs contended that the bank had failed to properly discharge its duties and had wasted and mismanaged the estate's assets.

The trial court denied the heirs' petition, finding that the bank's management of the estate had been appropriate. On appeal, we affirmed the trial court's ruling, holding that the heirs had failed to present sufficient evidence warranting the removal of the bank as executor of the estate. See Estate of Kirk, 242 Ill. App. 3d at 79-80. In so holding, we noted that the bank had not acted improperly in attempting to remove Cheryl O'Connor as guardian of the estate of the minor children, as it had done so pursuant to its nomination in the decedent's will to act in this capacity. Estate of Kirk, 242 Ill. App. 3d at 75. We also held that the estate suffered no harm as a result of the manner in which the bank sold the decedent's residence, distributed the savings bonds, or paid the inheritance tax. Estate of Kirk, 242 Ill. App. 3d at 75-76, 79.

On April 22, 1993, following the issuance of our mandate, the heirs filed a petition seeking to remove Lahti as the attorney representing the estate. The heirs alleged that Lahti breached his fiduciary duty to protect the estate and the interests of the heirs in the following ways: (1) by filing false pleadings on behalf of the estate; (2) by soliciting the heirs as clients even though they were already represented by another attorney; (3) by preparing and filing a petition to remove Cheryl O'Connor as guardian of the estate of the minor children; (4) by taking the decedent's savings bonds from Cheryl O'Connor; (5) by failing to pay the federal and state inheritance taxes on time; and (6) by attempting to collect attorney fees arising out of the petition to remove Cheryl O'Connor as guardian of the estate of the minor children.

On October 8, 1996, following a hearing, the trial court denied the heirs' petition. The trial court found that the heirs had waived any alleged conflict of interest objection relating to Lahti due to their lack of diligence in seeking to remove him as attorney for the estate. The trial court explained that the alleged conflict had existed from the beginning of the probate case in September 1989, but that the heirs had permitted the case to proceed for 3 1/2 years prior to ...


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