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In re Estate of Muldrow

October 10, 2003


Appeal from the Circuit Court of Cook County. No. 02 P 1165 Honorable Henry A. Budzinski, Judge Presiding.

The opinion of the court was delivered by: Justice Tully


Georgia Muldrow died in November 2001. She left a will which nominated her two sons, petitioner, Charles K Muldrow, and cross-petitioner, Ronald S. Muldrow, as co-executors. This interlocutory appeal reaches us following the trial court's entry of an order denying Ronald's petition to name him the sole executor and disqualify Charles from serving as executor. Ronald timely appeals contending that the trial court erred when it refused to disqualify Charles from serving as executor because he is a convicted felon. We reverse.


Georgia died on November 10, 2001. Charles filed a petition for letters of administration alleging that Georgia left no will and requesting that letters of administration issue to him. Ronald subsequently filed a petition for probate of will and for letters testamentary. Ronald alleged that Georgia left a will nominating Ronald and Charles as co-executors. Ronald further alleged that Charles was not qualified to act as executor because he was a felon.

On April 19, 2002, Ronald filed a motion to disqualify Charles as executor alleging that Charles was convicted of murder in February 1973 and served a ten-year term of imprisonment. Ronald argued that Charles was not qualified to serve as executor as a result of the felony conviction. Charles responded arguing that he had "only one brush with the law and is not a criminal." Charles argued that the trial court was required to consider his character, integrity, soundness of judgment, and general capacity to determine whether he was qualified to serve.

On May 31, 2002, the trial court conducted a hearing on Ronald's motion. The trial court denied Ronald's motion. In a written order, the trial court indicated that it based its decision on an application of the law in Estate of Roy, 265 Ill. App. 3d 99 (1994). The record on appeal does not contain a report of proceedings for the hearing. Ronald filed a timely notice of appeal pursuant to Supreme Court Rule 304(b)(1) (155 Ill. 2d R. 304(b)(1)).


Initially we note that Charles has not filed a brief on appeal. However, we find that the issues and record are relatively simple and we will address the merits of the appeal in accordance with the standards of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976). Further we note that Ronald has not met his burden, as the appellant, of providing this court with a sufficiently complete record of the proceedings at trial. Ronald has not provided this court with a report of proceedings for the hearing on his motion, nor has he utilized one of the alternatives provided by Supreme Court Rule 323 (166 Ill. 2d R. 323) and provided us with a bystander's report or agreed statement of the facts. Generally, in the absence of such a record on appeal, a reviewing court will presume that the order entered by the trial court was in conformity with the law and supported by a sufficient factual basis. See Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003), citing Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). However, this appeal primarily involves the interpretation of a statute. This is a question of law and the lack of a complete record does not bar our review of the issue. See Midstate, 204 Ill. 2d at 319.

Ronald contends that Charles was disqualified from acting as executor by section 5/6--13(a) of the Probate Act of 1975 (the Probate Act) (755 ILCS 5/6--13(a) (West 2002)). Section 5/6--13(a) provides:

"Who may act as executor. (a) A person who has attained the age of 18 years and is a resident of the United States, is not of unsound mind, is not an adjudged disabled person as defined in this Act and has not been convicted of a felony, is qualified to act as executor." (Emphasis added.) 755 ILCS 5/6--13(a) (West 2002).

Ronald argues that the plain language of this statute disqualified Charles and that the trial court erred when it relied on the holding in Roy and considered additional factors.

In Roy, the reviewing court considered a similar provision of the Probate Act that disqualified felons from serving as the guardians for disabled persons. In 1993, Marjorie and Luther Roy had been married for 43 years. Luther had cared for Marjorie for years while her health deteriorated and, in 1992, he placed her in a nursing home. An employee of Catholic Charities subsequently filed a petition to adjudicate Marjorie disabled and to appoint Marjorie's daughter as guardian of her estate. Marjorie filed a petition to appoint Luther as her guardian. The trial court held that the respondent, Luther Roy, was precluded as acting as the guardian for his wife, Marjorie Roy, because he had been convicted of armed robbery in 1957 and dismissed Marjorie's petition. The trial court subsequently adjudicated Marjorie disabled and appointed her daughter guardian. The trial court did not allow Luther to present evidence of his qualifications. Luther appealed contending, inter alia, that the section of the Probate Act which disqualified him as guardian violated the equal protection clause of the United States Constitution.

The reviewing court held that because the challenged provision of the Probate Act did not affect a fundamental right or discriminate against a suspect class it was subject to rational basis review. Roy, 265 Ill. App. 3d at 104. The Roy court further held that the statute was not facially unconstitutional because, "[a]ny distinction in the statute between convicted felons and nonfelons is sufficiently justified by the State's interest in protecting the mentally disabled from neglect, exploitation and abuse." Roy, 265 Ill. App. 3d at 104. However, the reviewing court held that the statute could be unconstitutional as applied because "it could be found that there is no rational basis for treating a person with a 36-year old felony conviction differently from any other husband of 43 years who seeks ...

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