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In re Estate of Bozarth

Court of Appeals of Illinois, Fourth District

January 30, 2014

In re: the Estate of FRANCES BOZARTH, Deceased, DENISE BOZARTH and LOREN BOZARTH, Cotrustees for the Harold D. Bozarth Residual Trust; and LOREN BOZARTH, Individually, Petitioners-Appellants,
v.
JANET QUAIN and MARCIA SHANK, Coexecutors of the Estate of Frances Bozarth, Deceased, Respondents-Appellees

Appeal from Circuit Court of McLean County No. 10P305. Honorable Elizabeth A. Robb, Judge Presiding.

SYLLABUS

In an appeal arising from a dispute over a will in which petitioners' grandfather left his " mortgages, notes[s] and cash" to their step-grandmother " to use and enjoy" during her lifetime, with the remainder going to petitioners, the trial court erred in denying petitioners' claim to the full amount of the financial assets bequeathed to petitioners' step-grandmother on the ground that she had the right to consume those assets during her lifetime, since Illinois law, pursuant to Quigley, provides that when life-estate property consists of cash or its equivalent, as in the instant case, the life tenant is entitled to consume the interest during her lifetime, but not the principal, and in the instant case, the remaindermen were entitled to " all that remains," meaning the remains after the payment of the testator's debts, end-of-life expenses, and a $5,000 bequest to his son.

Russell E. DePew (argued), of DePew & Dehn, of Bloomington, for appellants.

Allen L. DeVary (argued), of Hartweg, Turner, Wood & DeVary, P.C., of Bloomington, for appellees.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.

OPINION

Page 260

[¶1] This appeal involves a claim for $100,800.79 brought by the children of Robert Bozarth (petitioners) against the estate of Robert's stepmother, Frances Bozarth. When Robert's father, Harold Bozarth, died in 1983, he bequeathed all of his personal property to Frances " to use and enjoy" during her lifetime, with the remainder to Robert's children. As executrix of Harold's estate, Frances filed a final report indicating that she personally received, among other pieces of real and personal property, $100,800.79 in " mortgages, notes[,] and cash" from Harold's estate. Frances died in October 2010. In June 2011, petitioners filed a claim against Frances' estate seeking recovery of the $100,800.79 in life-estate property referenced in the final report.

[¶2] Following a November 2012 hearing, the trial court denied petitioners' claim, finding that (1) petitioners failed to prove by a preponderance of the evidence what exactly the personal property listed in the final report consisted of, and (2) even if petitioners were able to identify the personal

Page 261

property referenced in the report, Frances had the right to consume that property during her lifetime.

[¶3] Petitioners appeal, arguing that (1) the trial court erred by finding that they failed to identify the personal property referenced in the final report, and (2) Frances was not entitled to consume the principal of those financial assets during her lifetime. We affirm in part and reverse in part.

[¶4] I. BACKGROUND

[¶5] A. The Parties

[¶6] Harold and Frances married in 1956. They lived together on Harold's farm until Harold's death in February 1983. Although Harold and Frances had no children together, Harold had a son, Robert, from a previous marriage. Robert had five children prior to Harold's death: Loren Bozarth, Randy Bozarth, Douglas Bozarth, Dee Ann Gragg, and Denise (Bozarth) Smith.

[¶7] B. Harold's Will and the Probate Proceedings

[¶8] Harold's will, which he executed in October 1974, provided, in pertinent part, as follows:

" SECOND: After the payment of my just debts and burial expenses, I will, devise and bequeath all of my property of every kind, nature, and description, and wherever situated, and any property in which I have an interest, to my beloved wife, Frances Bozarth[,] to be hers to use and enjoy for and during the term of her natural lifetime.
* * *
FOURTH: At the death of my wife, all that remains of my estate *** I will, devise[,] and bequeath the same to any trustee nominated by my said wife, *** and all such property shall be held for the benefit of my son[,] Robert F. Bozarth[,] and the heirs of his body until the youngest of his children attains the age of forty years, at which time the entire corpus, and any ...

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