Estate of Berger, In re, s. 83-2875
| Citation | 520 N.E.2d 690,166 Ill.App.3d 1045 |
| Decision Date | 23 December 1987 |
| Docket Number | Nos. 83-2875,84-204 and 84-1502,s. 83-2875 |
| Parties | , 117 Ill.Dec. 339 In re ESTATE OF Bernard BERGER, Incompetent (Restored). (Wayne Goodman, Deborah Goodman, Gloria Roth and Philip Roth, Respondents-Appellants, Cross-Appellees; Bernard Berger, Petitioner-Appellee, Cross-Appellant; Maryland Casualty Company, Petitioner-Appellee, and Sheila Seidmon, Respondents-Appellants). |
| Court | United States Appellate Court of Illinois |
Sidney Z. Karasik, Chicago, for Deborah Goodman and Gloria roth.
Ira D. Schultz, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Maryland Cas. Co.; D. Kendall Griffith, Lawrence R. Moelmann, Joshua G. Vincent, of counsel.
Arvey, Hodes, Costello & Burman, Chicago (Gary David Friedman and Donald F. Spak, of counsel), Rudnick & Wolfe, Chicago, for Berger.
This case involves three consolidated appeals relating to improper disbursements from a recovered incompetent's estate.
In 83-2875, petitioner Bernard Berger, a restored incompetent, filed objections to accounts approved during his ten year period of incompetency. Petitioner alleges that the conservators acted improperly, resulting in his estate's depletion in excess of $200,000. Petitioner also sought to discover and recover funds and personal property. He served citations on his two daughters and their husbands, respondents Wayne and Deborah Goodman, and Gloria and Philip Roth. Additional parties included respondent Maryland Casualty Company which had issued a surety bond to the original conservator, and respondent Sheila Seidmon, the executrix of the estate of the original conservator, who died during petitioner's incompetency.
Following a trial without a jury, the trial court overruled several of petitioner's objections; entered judgment in favor of petitioner as to all other objections; surcharged the accounts of the first and successor conservators; ordered that certain personal property be returned to petitioner; and entered judgment against Maryland Casualty as bonding company, in the event of non-compliance with the surcharge judgment and turnover order.
Respondents contend on appeal that the trial court erred in disallowing disbursements which previously had been approved by the probate court; that the probate court's prior approvals of the annual accounts were binding upon petitioner absent a showing of fraud, accident or mistake; that the trial court erred in not applying the doctrine of substituted judgment; that petitioner ratified the manner in which his estate was handled; that the trial court erred in excluding certain testimony; and that the findings of the trial court are against the manifest weight of the evidence.
Petitioner has filed a cross-appeal against the respondent children, contending that the trial court erred in not sustaining his objections to a gift of $30,000 made by the conservator to the daughters.
In 84-1502, Maryland Casualty filed an action for indemnity against the children, including counts based on subrogation for money had and received, and for a constructive trust. The trial court entered summary judgment in favor of Maryland Casualty, and the respondent daughters appeal from that order.
In 84-204, Maryland Casualty and Seidmon filed a petition to have conservator's fees awarded to the conservator's estate. The trial court denied the petition, and Maryland Casualty and Seidmon appeal, contending that the trial court abused its discretion.
In 1948, petitioner married his first wife, Janice Lee Efron. Respondent Deborah Rae Goodman was born in 1949, and respondent Gloria Jean Roth was born in 1953. Janice died in early 1969, and petitioner was the sole beneficiary in Janice's will.
On October 28, 1969, the court entered an order finding petitioner to be an incompetent and appointing petitioner's father-in-law, Theodore Efron, as conservator. At that time, Deborah was 21 years old and engaged to respondent Wayne Goodman. Gloria was 16 years old. In January 1970, petitioner's estate was valued at $142,776. Petitioner remained legally incompetent until June 1980, when he was restored to competency.
During the ten years of incompetency, Efron filed nine current annual accounts with the court. Each account was approved. In addition, several petitions were filed and approved prior to the conservator's expenditures for certain individual items.
Efron died in September 1979, at which time petitioner's estate was valued at $387,264.87. Wayne Goodman, Deborah's husband, was appointed successor conservator. On June 26, 1980, the court entered an order restoring petitioner to competency. On January 29, 1981, Wayne filed Efron's final account, and filed the inventory of successor conservator, and the first and final account of successor conservator. On June 2, 1981, petitioner was given leave to file objections to the final accounts of both conservators. On August 4, 1981, petitioner filed nearly seventy objections and a petition for the issuance of citations for the discovery of information and recovery of property.
We first address respondents' contention that the trial court erred in disallowing the numerous expenditures and gifts, and in directing the turnover of certain monies and personal property to petitioner.
Generally, the trial court functions in a central role which permits it to oversee and control all aspects of the management and protection of the incompetent's estate. The court controls the person and estate of the ward, and directs the conservator's care, management and investment of the estate. (Ill.Rev.Stat. 1979-81, ch. 110 1/2, par. 11a-18; 1977, ch. 110 1/2, par. 11-13; 1969-75, ch. 3, sec. 122.) The court protects the incompetent as its ward, vigilantly guarding his property, and viewing him as a favored person in the eyes of the law. (Miller v. Myer (1964), 46 Ill.App.2d 106, 196 N.E.2d 370, citing Wann v. Birk (1870), 57 Ill. 202.) The court must do nothing "wantonly or unnecessarily to alter the ward's property, but on the contrary take care, for his sake, that if he recovers he shall find his estate as nearly as possible in the same condition as he left it." (Lewis v. Hill (1944), 387 Ill. 542, 546, 56 N.E.2d 619.) Upon the restoration of a person of unsound mind, that person has the right to be put in possession of his property and to ask the court to order the conservator to deliver and pay to him all money and property which he may have, or to which he may be entitled. In re Hire's Estate (1941), 309 Ill.App. 566, 33 N.E.2d 652, rev'd. on other grounds, Hire v. Hrudicka (1942), 379 Ill. 201, 40 N.E.2d 63.
The accounting and final settlement of a conservator are governed by the rules used in cases of guardianship. (Nonnast v. Northern Trust Co. (1940), 374 Ill. 248, 29 N.E.2d 251.) The conservator shall "manage the estate frugally and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support" of the ward and his children, or "for any other purpose which the court deems to be for the best interests of the ward." (Ill.Rev.Stat. 1979-81, par. 11a-18; 1977, ch. 110 1/2, par. 11-13; 1969-75, ch. 3, sec. 122; see also Proehl v. Leadley (1967), 86 Ill.App.2d 472, 230 N.E.2d 516.) The paramount duty of a conservator is to conserve and protect the assets of the incompetent person and to see that the assets and income therefrom are properly applied to use, enjoyment and benefit of the incompetent. Lewis v. Hill; Proehl v. Leadley.
The conservator must act with the degree of diligence which an ordinarily prudent person would use in conducting his own affairs. (Parsons v. Estate of Wambaugh (1982), 110 Ill.App.3d 374, 66 Ill.Dec. 145, 442 N.E.2d 571.) The representative is a fiduciary and is held to the highest standard of fair dealing and diligence, and his behavior will be closely scrutinized by the courts to insure his adherence to these high standards. In re Glenos' Estate (1964), 50 Ill.App.2d 89, 200 N.E.2d 65.
The conservator must present the court with accounts of receipts and disbursements for the court's approval. (Ill.Rev.Stat. 1977-81, ch. 110 1/2, par. 24-11; 1969-75, ch. 3, sec. 309.) The accounts must state the receipts and disbursements, and the property which is on hand. (See generally, 26 I.L.P. Mental Health § 24 (1956).) A conservator need not obtain a court order to expend money for the necessaries of a ward. (People v. Broda (1919), 215 Ill.App. 119.) The court may, however, disapprove, set aside, modify, or approve the representative's account. (Edwards v. Lane (1928), 331 Ill. 442, 163 N.E. 460.) The guardian should usually petition the court for permission to make large expenditures; otherwise, the guardian performs the acts at his own risk. Parsons v. Estate of Wambaugh.
When objections are properly filed to the accounts, the burden is on the representative to maintain by proof that the items objected to are just and proper. (In re Estate of Roth (1974), 24 Ill.App.3d 412, 321 N.E.2d 81.) If the conservator pays out money without having a claim filed, upon objection being filed to his report he has the burden of making as complete and satisfactory proof as would have been required had the individual filed a claim, made proof, and obtained an order of court for the payment of the claim. Nonnast v. Northern Trust Co.
The conservator and the surety on his bond are liable to any person aggrieved by the mismanagement of the estate committed to his care. Such person may institute and maintain an action against the representative and surety for all money and property which have come into his possession and are withheld or may have been wasted or misapplied and no satisfaction has been made. Ill.Rev.Stat. 1977-81, ch. 110 1/2, par. 24-18; 1969-75, ch. 3, sec. 318.
Respondents contend that the trial court's decision disallowing...
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