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In Re: the Estate of Leroy W. Mercier, Deceased v. Rhonda E. Mercier

December 2, 2011


Appeal from Circuit Court of Sangamon County No. 09P165 Honorable Leo J. Zappa, Jr., Judge Presiding.

The opinion of the court was delivered by: Justice Cook

JUSTICE COOK delivered the judgment of the court, with opinion.

Presiding Justice Turner and Justice Pope concurred in the judgment and opinion.


¶ 1 Plaintiff, Jody A. Martin, appeals a series of trial court orders removing Jody as trustee of a testamentary trust and appointing defendant, Rhonda E. Mercier, as her replacement. Jody argues, pertinently, that the court abused its discretion in substituting Rhonda for Jody, deprived Jody of due process, and misconstrued section 4.26 of the Trusts and Trustees Act (760 ILCS 5/4.26 (West 2010)). As (1) we presume, due to substantial holes in the trial record, the court's order was supported by adequate evidence and comported with procedural requirements and (2) no error of statutory interpretation occurred, we affirm.


¶ 3 On March 3, 2009, decedent, LeRoy W. Mercier, died testate. On March 24, 2009, LeRoy's will was admitted to probate and Jody, one of his daughters, was appointed executrix under independent administration. Among its other provisions, the will called for a testamentary trust comprised primarily of three houses sharing an undivided tract of land in Springfield, two automobiles, some antique furnishings, and some property-maintenance equipment. At the time of his death, LeRoy resided in one of the houses and Rhonda, another of LeRoy's daughters, in another. According to LeRoy's will, the corpus was to be held in trust and managed for Rhonda's benefit during her lifetime; several of LeRoy's grandchildren were named remainder beneficiaries. Jody was appointed trustee and one of LeRoy's minor granddaughters was nominated as substitute trustee.

¶ 4 The establishment of this testamentary trust was the subject of a prolonged dispute between Jody and Rhonda in the probate of LeRoy's estate, initiated by Rhonda's October 23, 2009, petition to terminate independent administration of LeRoy's estate and request for an accounting of Jody's actions as executrix. Throughout the proceedings, Jody maintained the estate was insolvent; she requested that the estate be allowed to hold the property designated as the trust corpus in case the property had to be sold to cover the estate's debts, including Jody's executrix fees and attorney fees. She showed progress toward selling off LeRoy's real property not bequeathed to the trust, although the net proceeds were often modest after the mortgages were repaid.

¶ 5 Rhonda asked that the property be placed in trust and made productive, subject to refunding bonds to protect Jody's liabilities as executrix. In a series of pleadings, including a March 18, 2010, petition to disqualify and remove Jody as trustee, Rhonda alleged Jody delayed establishing the trust; declined to make the trust property productive for Rhonda's benefit; and wasted estate assets by spending them on unwarranted improvements in several of LeRoy's real estate holdings, including those bequeathed to the trust, by allowing family members to use the trust property without paying rent or usage fees, and by failing to account for payments and loans to family members for unspecified services.

¶ 6 In an order entered June 23, 2010, the trial court terminated independent administration of LeRoy's estate and required Jody, as executrix, to file an inventory and verified accounting. Rhonda attacked Jody's subsequent filings-including a verified accounting with no value listed for the specifically bequeathed real estate-as noncompliant. Jody continued to plead that the estate was insolvent and no feasible plan to fund the testamentary trust could be devised. On September 17, 2010, Rhonda filed objections to Jody's inventory and interim account and a petition to compel Jody to distribute the specifically bequeathed property to the trust.

¶ 7 Following a hearing, in an October 14, 2010, order, the trial court, in pertinent part, restricted Jody's expenditure of estate assets, required Jody to fund the testamentary trust with one of the specifically bequeathed vehicles, and directed the parties to submit proposals concerning the feasibility of making the bequeathed trust property "self-supporting for the ultimate conveyance to the Trust as provided in the Decedent's Will." In a subsequent pleading, Jody maintained the trust was infeasible. Rhonda submitted three alternative proposals by which, Rhonda argued, the property could be made productive and sustainable.

¶ 8 On November 5, 2010, Rhonda notified Jody that their proposals would be argued at a December 17, 2010, hearing. The record on appeal contains no detailed account of the December 17, 2010, hearing: no verbatim transcript, bystander's report, or agreed statement of facts as provided for in Illinois Supreme Court Rule 323 (eff. Dec. 13, 2005). The only record of the hearing is a docket entry. The entry indicates Jody, who was not personally present, was represented by counsel and Rhonda was present with counsel. It indicates a witness was sworn, testimony was taken, arguments were heard, and the trial court took the matter under advisement.

¶ 9 In a February 4, 2011, order, the trial court ordered Jody, as executrix, to convey the specifically bequeathed property to the trust. It further directed Jody, as trustee, to collect rent from family members who were residing on and occupying the real property bequeathed to the trust, to rent out any unoccupied residential properties, and to coordinate with Rhonda regarding payment for utilities and upkeep. Referring to section 4.26 of the Trusts and Trustees Act (760 ILCS 5/4.26 (West 2010)), the court provided that in the event Jody dissolved the trust pursuant to that statute the corpus would be distributed to Rhonda for her life and guardians ad litem would be appointed for any minor remaindermen. The court reserved ruling on "all issues raised by the pleadings," including explicitly executrix and attorney fees and implicitly Rhonda's petition to disqualify and remove the nominated trustees.

ΒΆ 10 On February 14, 2011, Jody filed a petition to clarify the trial court's February 4, 2011, order. In relevant part, Jody indicated that she interpreted the order to require dissolution of the trust and distribution of the corpus to Rhonda as life tenant, free of trust. On February 28, 2011, the court held a hearing on, among other things, the petition to clarify. Again, our record lacks a report of proceedings pertaining to this hearing. Following the hearing, that same day, the court entered a written order requiring the conveyance of the indicated property to the trust and substituting Rhonda ...

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