Appeal from the Circuit Court of Cook County. No. 2008P544 Honorable Henry A. Budzinski, Judge Presiding.
The opinion of the court was delivered by: Justice Pucinski
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justice Lavin concurred in the judgment and opinion.
Presiding Justice Gallagher dissented, with opinion.
Petitioner Cheryl Herbeck appeals the trial court's denial of her petition to vacate an order allowing respondent Kenneth Radamacker to recover the real estate expenses he incurred on property bequeathed to him by the decedent, Robert Matthews, from the residue of the decedent's estate. On appeal, she argues that the trial court erred in denying her petition because decedent failed to specifically provide for the payment of real estate tax expenses from his estate in his last will and testament. Accordingly, section 20-19 of the Illinois Probate Act of 1975 (Probate Act) (755 ILCS 5/20-19 (West 2006)) bars respondent from recovering the real estate expenses he incurred on the bequeathed property from decedent's estate. For the reasons detailed herein, we reverse the judgment of the trial court.
Decedent Matthews died testate on October 12, 2007. His last will and testament, dated June 4, 2004, was admitted to probate on February 11, 2008. In his will, the decedent bequeathed $20,000 and real estate located in Sarasota, Florida, to respondent and named the petitioner the sole residuary legatee. Decedent's will contained the following provision:
"I give my Executor or Successor-Executor the following powers and discretions, in each case to be exerciseable without court order:
(e) To pay all governmental charges, taxes or liens imposed upon my estate or upon the interest of any and all beneficiaries hereunder by any law of any state, foreign state or federal government, relating to the transfer of property by descent or devise, and I do further direct that all such charges, taxes and liens be considered and treated as expenses and costs of administering my estate and be paid out of the same before distribution thereof."
Title to the Florida property was transferred to respondent on March 13, 2009. Respondent subsequently filed a claim against the decedent's estate in which he sought reimbursement for the money he paid to maintain the property, including the real estate taxes he paid on the property. Respondent indicated that he paid delinquent real estate taxes for 2006 amounting to $12,702.30; $12,056.01 in delinquent real estate taxes for 2007; and $10,918.75 in delinquent real estate taxes for 2008; and he advanced $1,782 for the 2009 fiscal year. Accordingly, respondent sought to recover $37,459.06 that he had paid to satisfy the property's real estate tax obligations from decedent's estate.
On November 10, 2009, the executor of decedent's estate agreed that respondent should be compensated for the real estate tax expenses he incurred on the Florida property from the proceeds of decedent's estate. Accordingly, the court entered an agreed order allowing respondent to recover the $37,459.06 sum that he paid in real estate taxes on the Florida property. Thereafter, petitioner filed a petition to vacate the trial court's order allowing respondent's claim pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401 (West 2006)), a copy of which does not appear in the record on appeal.
On May 17, 2010, the trial court presided over a hearing on petitioner's section 2-1401 petition to vacate respondent's claim against decedent's estate. Following that hearing, the transcripts of which also do not appear in the record, the trial court entered a written order denying petitioner's petition, finding: "The court finds that the decedent's will expressly provided for payment of the real estate taxes out of the residue of his estate and therefore the estate is responsible for the payment of the real estate taxes." This appeal followed.
On appeal, petitioner argues that the trial court erred in denying her section 2-1401 petition to vacate respondent's claim against decedent's estate. Specifically, she argues that the trial court erred in permitting respondent to recover the real estate taxes he paid on the Florida property from decedent's estate because decedent's will did not expressly provide for the payment of real estate taxes encumbering the property he bequeathed to respondent. Because section 20-19 of the Probate Act (755 ILCS 5/20-19 (West 2006)) bars an inheritor from obtaining reimbursement of real estate taxes encumbering real property unless expressly provided for in the decedent's will, petitioner argues that respondent may not recover the real estate tax expenses he incurred on the property.
Respondent, in turn, argues that decedent's will sufficiently expressed his intention to have the delinquent real estate taxes on the Florida property be paid from the residue of his estate. Accordingly, he argues that the trial court correctly found that decedent's will expressly provided for the payment of real estate taxes out of the residue of his estate.
Before we address the substantive merit of this appeal, we note as a threshold matter that jurisdiction over this appeal is proper as we are reviewing the propriety of the trial court's denial of petitioner's section 2-1401 petition. A trial court's ruling on section 2-1401 petition constitutes a final order and vests a reviewing court with jurisdiction pursuant to Supreme Court Rule 304(b)(3). Ill. S. Ct. R. ...