Estate of Dembufsky

• Decision Date: 14 October 1980
• Docket Number: No. 80-1390,80-1390
• Citation: 89 Ill.App.3d 575,411 N.E.2d 1183
• Parties: , 44 Ill.Dec. 817 ESTATE of Henry DEMBUFSKY, Deceased. Leila DEMBUFSKY, Petitioner-Appellee, v. Alyce D. ZATZ, as Executor of the Estate of Henry Dembufsky, Deceased, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 1183

411 N.E.2d 1183

89 Ill.App.3d 575, 44 Ill.Dec. 817

ESTATE of Henry DEMBUFSKY, Deceased.

Leila DEMBUFSKY, Petitioner-Appellee, v. Alyce D. ZATZ, as Executor of the Estate of Henry Dembufsky, Deceased, Respondent-Appellant.

No. 80-1390.

Appellate Court of Illinois, First District, First Division.

Oct. 14, 1980.

Arvey, Hodes, Costello & Burman, Chicago (Joel S. Siegel and Glen M. Zatz, Chicago, of counsel), for respondent-appellant.

Donald L. Johnson and William Biederman, Chicago, for petitioner-appellee.

GOLDBERG, Presiding Justice:

Alyce D. Zatz, executor of the estate of Henry Dembufsky, deceased, appeals from an order granting Leila Dembufsky (widow) a surviving spouse's award of $18,900. Ill.Rev.Stat. 1979, ch. 1101/2, par. 15-1.

The widow's petition alleged she is the surviving spouse and "(h)er condition in life is such that her reasonable needs and expectations to sustain herself total approximately $2100 per month." She further alleged there were no other parties dependent on the decedent for support during his lifetime and an award of $18,900 ($2100 per month for the 9-month statutory period) would neither burden the estate unduly nor deprive the legatees of anything to which they are entitled.

The executor filed an answer to the petition. She denied the widow's needs and expectations to sustain herself were $2100 per month and denied the sum requested would not unduly burden the estate. As a further defense, the executor alleged decedent's adjusted gross income for the year immediately preceding his death was $12,667; the exact value of the estate could not be determined at that time because ownership of certain assets by the estate was being contested by the widow; and the approximate value of the uncontested estate assets is $60,000. The executor averred an award of $18,900 would deprive other legatees of amounts to which they were entitled; and, therefore, the widow should be awarded the statutory minimum of $5000. In the alternative, the executor requested that the hearing on the widow's petition be postponed until after there had been a final determination as to which assets were owned by the estate.

At the hearing on the petition, the executor's counsel again asked the court to postpone the hearing until there was a final determination as to which assets belonged to the estate. The widow's counsel stated that if certain of those assets were later determined to belong to the widow, they would credit those items to the estate to offset the widow's award. The court proceeded with the hearing.

Upon direct examination by her counsel and by the trial court, the widow testified she had been married to decedent for 21 years. She itemized her monthly expenses which totaled $2175. However, no documentation of these expenses was offered in evidence. At the conclusion of her direct testimony, a discussion ensued between the trial court and both counsel as to the widow's intention to renounce decedent's will. After this discussion, the court awarded the widow $18,900. Immediately thereafter, the following exchange occurred:

"MR. SIEGEL (executor's counsel): Judge, no cross examination, no chance to ask her about her records?

"THE COURT: That is it. The lady's been married 17 years.

"MRS. DEMBUFSKY: Twenty-one years.

"THE COURT: The figure is in line with her expenses and what the statute provides for 9 months. You got it.

"MRS. DEMBUFSKY: Thank you.

"MR. SIEGEL: Judge, we ask for production of two documents at today's hearing. One was a lease, copy of a lease, and the other was a copy of her income tax returns for 1979. I would like to see that.

"MR. JOHNSON: (widow's counsel): Your Honor--

"THE COURT: I think it is in accordance with the statute, and with what you are entitled to, and what your expenses are. And that is all there is to it."

In this court, the executor contends the amount of the award is unreasonable, the trial court failed to consider the condition of the estate in determining the award, and the executor was denied due process because the court refused to allow the executor's counsel to cross-examine the widow or introduce evidence.

Under the view we take of this case, the issue of the propriety of the trial court's refusal to allow executor's counsel to cross-examine the widow is dispositive. We need not decide the other issues raised by the parties.

The pertinent statute provides the surviving spouse shall be awarded "such a sum of money as the court deems reasonable for the proper support of the surviving spouse for the period of 9 months after the death of the decedent in a manner suited to the condition in life of the surviving spouse and to the condition of the estate * * *." (Ill.Rev.Stat. 1979, ch. 1101/2 par. 15-1(a).) The statute further states "(o)n petition of the surviving spouse * * * the court may hear evidence and may increase or diminish the award as justice requires." Par. 15-3(b).

In the instant case, the trial court did conduct a hearing and heard testimony by the widow on direct examination. However, the court did not allow cross-examination of the widow by the executor after full direct examination. In our opinion, requisite fairness was not afforded to the executor.

"A basic tenet of our jurisprudence is that a person should receive a fair and impartial hearing, with an opportunity to offer evidence and cross-examine witnesses." (Golden Egg Club v. Illinois Liquor Control Comm. (1970), 124 Ill.App.2d 241, 244, 260 N.E.2d 329, 331.) "The purpose of cross-examination is to obtain the truth." Marut v. Costello (1966), 34 Ill.2d 125, 128, 214 N.E.2d 768, 769.

In Grundy County National Bank v. Myre (1975), 34 Ill.App.3d 287, 339 N.E.2d 348, a defendant was denied the right to recross-examination of a witness after completion of redirect examination. The court held this was reversible error and ordered a new trial, stating (34 Ill.App.3d 287, 288-89, 339 N.E.2d 348, 350-51):

"As a general rule, cross-examination of a witness is a matter of right, but the extent and scope of the examination are within the sound discretion of the trial court. (Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624.)

"In the case at bar, defendant asked the court to allow a 'couple more on recross, if I may,' and the court responded 'There is no recross.' * * *. Thus defendant was not given a chance to frame any questions on recross and was denied the right to cross-examine (the witness) about new matters brought out on redirect. This case must be distinguished from those where the trial court is alleged to have acted in abuse of its discretion in limiting the scope of recross; here the court refused to exercise any discretion at...