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In re Estate of Zenkus

March 12, 2004

IN RE ESTATE OF CHARLES EDWARD ZENKUS, DECEASED
(JOSEPH ZENKUS, PETITIONER AND CROSS-RESPONDENT-APPELLANT
v.
KATHLEEN ZENKUS, RESPONDENT AND CROSS-PETITIONER-APPELLEE).



Appeal from the Circuit Court of McHenry County. No. 02-PR-347 Honorable Michael J. Sullivan, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice O'malley

PUBLISHED

Petitioner and cross-respondent, Joseph Zenkus (petitioner), appeals the judgment of the circuit court of McHenry County denying his petition for letters of administration for the estate of decedent, Charles Edward Zenkus, and granting the cross-petition for letter of administration of respondent and cross-petitioner, Kathleen Zenkus (respondent), decedent's ex-wife. We affirm.

On February 11, 1995, decedent and respondent were married. On July 20, 1996, their son was born. In December 1996, decedent and respondent separated. On October 12, 1999, they were divorced, with a judgment of dissolution that incorporated a marital settlement agreement being entered on that date. The settlement agreement provided:

"13.3 Waiver of Estate Claim: Except as herein otherwise provided, each of the parties hereto hereby wavies [sic] and relinquishes all rights to act as administrator or administrator with the will annexed of the estate of the other party, and each of the parties does further relinquish all rights to inherit by intestate succession any of the property of which the other party may die seized or possessed, and should either of the parties hereto die intestate, this agreement shall operate as a relinquishment of all right of the surviving party hereafter to apply for letter [sic] of administration in any form, and the estate of such deceased party, if he or she dies intestate, shall decend [sic] to the heirs at law of such deceased party, in the same manner as though the parties hereto had never been married, each of the parties hereto respectively reserving the right to dispose, by testament or otherwise, of hos [sic] or her respective property in any way that he or she may see fit, without any restriction or limitation whatsoever; provided, however, that nothing herein contained shall oprate [sic] or be construed as a waiver or release by either party of the obligations of the other to comply with the terms of this agreement."

In addition, the marital settlement agreement provided that respondent was to have sole care, custody, and control of the minor child, and that the child would reside with respondent.

On September 4, 2002, decedent was killed in an automobile accident. As decedent did not prepare a will following his divorce, he died intestate. After decedent's death, his brother, petitioner, filed a petition for letters of administration, seeking to be appointed as administrator of decedent's estate. Respondent filed a cross-petition, in her capacity as guardian of the minor child, for letters of administration, seeking to appoint a bank as the administrator of decedent's estate.

On January 7, 2003, the trial court heard argument on the pending petition and cross-petition. The trial court granted respondent's cross-petition and struck petitioner's petition, finding that the provision of the marital settlement agreement waiving one spouse's right to administer the other spouse's estate applied only to the spouse individually and not in some other capacity, such as guardian of the couple's child.

Petitioner moved the trial court for a stay of its order pending appeal, which the trial court denied. On January 22, 2003, petitioner filed a timely notice of appeal.

On appeal, petitioner contends that the trial court erred in denying his petition for letters of administration. Petitioner argues that the waiver of estate claim provision of the marital settlement agreement precludes respondent from applying for letters of administration in any capacity, either individually or as a representative. Petitioner argues that, when the marital settlement agreement is properly interpreted, respondent has surrendered her right to apply for letters of administration in the representative capacity of guardian of the couple's minor child, as well as in any other capacity. We disagree.

As this case involves the construction of the marital settlement agreement, we begin our analysis there. General rules of contract interpretation apply to the interpretation of a marital settlement agreement. In re Marriage of Sweders, 296 Ill. App. 3d 919, 922 (1998). The cardinal rule of contract interpretation is to ascertain and give effect to the intent of the parties. Sweders, 296 Ill. App. 3d at 922. The language employed in the contract or marital settlement agreement is the best indication of the parties' intent. Sweders, 296 Ill. App. 3d at 922. The interpretation of a marital settlement agreement presents a question of law, which we review de novo. Sweders, 296 Ill. App. 3d at 922.

Petitioner points specifically to two phrases in the waiver of estate claim at issue: (1) each party "hereby waives and relinquishes all rights to act as administrator" of the other's estate; and (2) "should either of the parties [to this marital settlement agreement] die intestate, this agreement shall operate as a relinquishment of all right of the surviving party hereafter to apply for letters of administration in any form." Petitioner argues that these phrases evidence a clear and unambiguous intent that both parties agreed that the survivor would not interfere in the estate of the deceased party. Nevertheless, it is not clear from these phrases that the parties contemplated and incorporated the instant factual situation into their agreement. In other words, we must determine whether the parties meant to foreclose their ability, in a representative capacity, to apply for letters of administration, or to nominate an administrator.

Petitioner attempts to clinch his argument by pointing to the release clause of the marital settlement agreement. We directly quote petitioner's argument to illustrate precisely where petitioner's contentions fail:

"As a general proposition, it is safe to say that no one wants their ex-spouse wielding control over the administration of their estate, which is why ...

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