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In re Estate of Sperry

Court of Appeals of Illinois, Third District

October 23, 2017

IN THE MATTER OF THE ESTATE OF: ANNE SPERRY, Deceased
v.
MATTHEW SPENCER, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ANN SPERRY, Deceased, Petitioner-Appellee. JACK SPERRY, Respondent-Appellant,

         Appeal from the Circuit Court of the 9th Judicial Circuit, Knox County, Illinois, Appeal No. 3-15-0703 Circuit No. 13-P-179 Honorable Dwayne I. Morrison, Judge, Presiding.

          PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices O'Brien and Wright concurred in the judgment and opinion.

          OPINION

          HOLDRIDGE, PRESIDING JUSTICE

         ¶ 1 Petitioner-Appellee Matthew Spencer (Matthew) is the independent administrator of the estate of his late sister, Anne Sperry (Anne). Matthew brought an action in the circuit court of Knox County against Anne's ex-husband, Jack Sperry (Jack), the respondent-appellant in this case, seeking a declaration that Anne's estate was entitled to control the design and placement of a headstone for Anne's grave, which was located in a cemetery plot that Jack had purchased. Following a bench trial, the trial court found that Jack had gifted the cemetery plot where Anne was buried to Anne's estate and that the estate had the right to control the design and placement of the headstone. This appeal followed.

         ¶ 2 FACTS

         ¶ 3 On or about September 16, 2013, Anne died in an automobile accident. At the time of her death, Anne was not married. Her ex-husband, Jack, had filed a petition to dissolve his marriage to Anne in May 2009, and a final judgment for dissolution of marriage was entered in September 2009. Jack and Anne had two children together, Jordan Sperry and Jacob Sperry. Anne also had a third child, Elizabeth Winter, who was born of another father. Anne did not leave a will.

         ¶ 4 At the time of her death, it was uncertain whether Anne's estate would be solvent. After Anne's death, Jack purchased two adjoining cemetery plots at Memorial Park in Galesburg, Illinois with the intention of having a place for himself and a place for Anne to be buried. Anne was interred in one of these adjoining plots. Anne's father paid for her funeral and for the burial expenses, and he was subsequently reimbursed by Anne's estate.

         ¶ 5 On May 6, 2015, Matthew filed a "Petition for Authority to Place Headstone" in the circuit court of Knox County. In pertinent part, the petition alleged the following: (1) in September 2014, approximately one year after Anne's interment, Matthew and Anne's oldest child, Elizabeth Winter, selected a headstone design for Anne's grave which was approved by Anne's father and siblings; (2) that same day, Matthew went to Jack's home to share the headstone plans with Jack and Anne's two other children, Jordan Sperry and Jacob Sperry, who were in Jack's custodial care; (3) Jack became angry and told Matthew that there were "not sufficient funds to pay for a headstone due to litigation expenses Jack had incurred as a result of contested child support matters between Jack and the [e]state"; (4) Matthew told Jack that Anne's estate would pay for the headstone; (5) Jack "informed [Matthew] of his position that the burial plot was [Jack's] property, since he paid for it, and [Jack] would not allow a headstone to be installed; (6) Jack suggested that Matthew have Anne exhumed and reinterred in a different plot; (7) due to the conflict surrounding this matter, Lacky Monument (the company that sold the headstone at issue) refused to place the headstone pending further direction from the court; (8) after making an inquiry, Matthew believed that it could cost approximately $3, 000 to remove the defendant's remains.

         ¶ 6 In the petition, Matthew further alleged that, pursuant to the Disposition of Remains Act (755 ILCS 65/5 (West 2012) he, as the independent administrator of Anne's estate, had the authority to control Anne's remains because Anne left no written direction on the matter, she was not married, and her surviving children were all minors.[1] Matthew contended that the right to bury a decedent carries with it the right to erect a monument at the gravesite "according to the usual custom." He further argued that Jack paid for the plot "specifically for the purpose of burying" Anne, and was "estopped from denying" that a headstone would be placed on the grave, pursuant to the usual custom. Matthew asked the trial court to enter an order: (1) finding that Matthew "has a preferential right to place a headstone of his choosing" upon the existing grave of Anne Sperry, pursuant to 755 ILCS 65/5"; (2) finding that Jack purchased the grave "specifically for the purpose of burying" Anne, that Jack's participation in Anne's burial "implied that he would acquiesce in the placement of a headstone as is usual and customary, " and that Jack "is estopped from preventing the placement of a headstone now that the burial has already taken place"; (3) enjoining Jack from interfering with the selection, placement, and quiet enjoyment of a headstone on Anne's existing grave; and (4) awarding "all other relief proper in the premises." In the alternative, Matthew asked the trial court to enter an order: (1) granting Matthew a preferential right to apply for a permit to disinter Anne's remains and reinter them in another location; and (2) enjoining Jack from interfering with said permit application or with the subsequent disinterment (should such a permit be granted).

         ¶ 7 Jack did not file an answer to the petition. Nor did he file a motion challenging the legal sufficiency of the petition.

         ¶ 8 On June 9, 2015, the trial court held an evidentiary hearing on Matthew's petition. Jack's counsel appeared on Jack's behalf and informed the trial court that Jack objected to the petition but did not specify the basis for Jack's objection.

         ¶ 9 During the hearing, Matthew testified that, upon Anne's death, he, Anne's three other siblings, and Jack participated in making the funeral arrangements. Anne's father, Bruce Spencer, ultimately paid for the funeral and burial expenses.[2] Jack paid for the burial plot. It was agreed that Jack would pay for two plots, and that Anne would be buried in one of them. Matthew stated that Jack and Bruce paid for these expenses because it was uncertain at the time whether Anne's estate would have the money to pay for them. In September 2013, Anne was interred one of the burial plots that Jack bought.

         ¶ 10 Matthew testified that, in September 2014, he took Anne's oldest daughter, Elizabeth Winter, to Lacky Monument to obtain designs for a headstone for Anne. Matthew e-mailed the designs to Anne's and Matthew's father and siblings, all of whom approved. Matthew and Elizabeth then went to Jack's house to discuss the headstone. Jack told Matthew that the proposed headstone "wasn't acceptable" and that he did not have the money to pay for a headstone. Matthew told Jack that Anne's family would pay for the headstone. According to Matthew, Jack told Matthew not to return. Thereafter, Lackey Monument refused to place the headstone Matthew had selected.

         ¶ 11 On cross-examination, Matthew confirmed that Jack's response to the proposed headstone in September 2014 was that the burial plot was "his property since he paid for it, " and he would not allow a headstone to be installed. According to Matthew, Jack told him that, if Jack could not control the design of the headstone, Anne would have to be disinterred. Matthew acknowledged that the burial site had not been improved from the time Anne was interred in September 2013 through the date of the hearing. He also stated that one reason that Anne's estate ...


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