Estate of Kirk, In re
| Decision Date | 17 March 1993 |
| Docket Number | No. 2-92-0971,2-92-0971 |
| Citation | 183 Ill.Dec. 274,611 N.E.2d 537,242 Ill.App.3d 68 |
| Parties | , 183 Ill.Dec. 274 In re ESTATE OF Joel F. KIRK, Deceased (Cheryl A. Kirk O'Connor, Indiv. and as Guardian of the Estate and Person of Joel F. Kirk II, a Minor, et al., Petitioners-Appellants, v. Harris Bank Barrington, N.A., Respondent-Appellee). |
| Court | United States Appellate Court of Illinois |
Bruce G. Wilkins, O'Brien, Hanrahan, Wojcik & Fay, Woodstock, for Estate of Joel F. Kirk, Deceased.
Paul T. Lahti, Lahti & Cole, Crystal Lake, for Harris Bank Barrington N.A.
Cheryl A. Kirk O'Connor, individually and as guardian of the estate and person of Joel F. Kirk II, minor, Lynda M. Kirk Jones, Lisa A. Kirk Staver, and Debra Lee Kirk Madenis, petitioners, appeal from an order denying their petition to remove the Harris Bank Barrington, respondent, as executor of the estate of Joel F. Kirk. For the following reasons, we affirm.
Joel F. Kirk died on July 19, 1989, in Sioux City, Iowa, in the performance of his duties during the crash landing of United Air Lines Flight 232. Kirk was survived by his daughters, Cheryl A. Kirk O'Connor, Lisa A. Kirk Staver, and Lynda M. Kirk Jones, and two children who were minors at the time of their father's death, Debra L. Kirk Madenis and Joel F. Kirk II. O'Connor was appointed guardian of the estate and person of the minor children.
Decedent's will, dated December 21, 1979, nominated the First National Bank and Trust Company of Barrington, Illinois, and Janet L. Kirk as executors. The bank was nominated as guardian of the estate of any minor child. Janet L. Kirk and decedent were married and divorced on two separate occasions. Their second marriage was dissolved on July 13, 1988.
On September 11, 1989, the Harris Bank Barrington, formerly known as the First National Bank and Trust Company of Barrington, Illinois, filed a petition for probate of will and for letters testamentary. On September 26, 1989, the court admitted Kirk's will, dated December 21, 1979, to probate and appointed the Harris Bank Barrington as executor of the estate of Joel F. Kirk. On September 10, 1990, petitioners filed a petition for removal of the Harris Bank Barrington as executor of the estate of Joel F. Kirk. Thereafter, the court issued a citation ordering the Harris Bank Barrington to show cause why it should not be removed as executor of the estate of Joel F. Kirk. On July 24, 1992, the court entered an order granting the executor's motion for a "directed verdict [sic ]" on the basis that petitioners failed to sustain their burden of proving the executor should be removed. The petition for removal was denied and petitioners appealed.
Petitioners first contend that the trial court erred by finding that the executor denied all allegations contained in the petition to remove. The executor responded to each paragraph by denying "any and all allegations of wrong doing, ill-will, or breach of duty." Petitioners contend that this format was too general as section 2-610(a) of the Code of Civil Procedure requires an explicit denial of each allegation of fact contained in the pleading to which it relates. Ill.Rev.Stat.1989, ch. 110, par. 2-610(a).
We find petitioners' contention meritless. Supreme Court Rule 136 allows a pleader to deny all the allegations in a paragraph "without paraphrasing or separately describing each allegation denied." (134 Ill.2d R. 136(a).) We have reviewed the executor's response and find it in compliance with Supreme Court Rule 136(a). Furthermore, the petitioners did not file any motions in the trial court attacking the executor's response. Issues not raised in the trial court are deemed waived and cannot be argued for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill.2d 273, 279, 137 Ill.Dec. 78, 545 N.E.2d 731.) Therefore, we deem the issue waived.
Next, petitioners contend that the trial court failed to follow proper procedure at the hearing on the petition to remove the executor. At the hearing on the petition for removal, petitioners were required to present evidence in support of their petition for removal. At the close of petitioners' evidence, the court stated that it was granting the executor's motion for a "directed verdict [sic ]," based on a finding that petitioners failed to sustain their burden of providing evidence establishing reasonable grounds for removal. Thus, the petition to remove the executor was denied.
We note that the trial court stated that it was granting the executor's motion for a "directed verdict [sic]." Since the hearing was before a judge and not a jury, the executor's motion is properly termed a motion for a directed finding, or a motion for judgment at the close of plaintiff's case. (Ill.Rev.Stat.1989, ch. 110, par. 2-1110.) The trial court should apply a two-step analysis in ruling on this type of motion. First, the trial court determines whether the plaintiff has presented a prima facie case by presenting at least some evidence essential to each element of the cause asserted. (Zannini v. Reliance Insurance Co. of Illinois, Inc. (1992), 147 Ill.2d 437, 449, 168 Ill.Dec. 820, 590 N.E.2d 457; Wehde v. Regional Transportation Authority (1992), 237 Ill.App.3d 664, 675, 178 Ill.Dec. 190, 604 N.E.2d 446.) If so, the court must weigh the evidence, pass on the credibility of the witnesses, draw reasonable inferences and generally consider the weight and quality of the evidence. (Ill.Rev.Stat.1989, ch. 110, par. 2-1110; Wujcik v. Gallagher & Henry Contractors (1992), 232 Ill.App.3d 323, 328, 172 Ill.Dec. 920, 596 N.E.2d 199.) If the plaintiff has not presented a prima facie case, the trial court should grant the motion and enter judgment in the defendant's favor. (Zannini, 147 Ill.2d at 449, 168 Ill.Dec. 820, 590 N.E.2d 457.) The trial court's decision to direct a judgment will not be reversed on appeal unless it is against the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill.2d 151, 154, 40 Ill.Dec. 812, 407 N.E.2d 43.
Petitioners contend that the procedure followed by the trial court was incorrect because it required petitioners to present a prima facie case for removal by providing evidence establishing reasonable grounds for removal. According to section 23-3 of the Probate Act of 1975, proceedings In this case, the executor was not required to prove its fitness to retain office. The trial court granted the executor's motion for a directed finding on the basis that petitioners failed to present evidence establishing reasonable grounds for removal. We find the procedure followed by the trial court was consistent with that required by Estate of Lucas, the most recent supreme court case discussing this issue.
[183 Ill.Dec. 278] to remove an executor are commenced when the court issues a citation directing the representative to show cause why he should not be removed from office. (Ill.Rev.Stat.1989, ch. 110 1/2, par. 23-3(a).) Contrary to petitioners' contention, the issuance of a citation does not place the burden of proving fitness to retain office on the executor. Rather, the challenged representative must answer the citation by admitting or denying the allegations in support of removal. If the representative admits the allegations, and the admissions establish a prima facie showing of removal based on reasonable grounds for removal, the representative bears the burden of proving fitness to retain office. If the representative denies the allegations of the citation, as the executor did in this case, the court commences proceedings on the petition for removal by conducting an evidentiary hearing. (See In re Estate of Glenos (1964), 50 Ill.App.2d 89, 95, 200 N.E.2d 65.) At the hearing, petitioners bear the burden of providing a prima facie case for removal by introducing evidence establishing reasonable grounds for removal. If the petitioners sustain their burden, the burden then shifts to the executor to prove his fitness to retain office. In re Estate of Lucas (1978), 71 Ill.2d 277, 282, 16 Ill.Dec. 481, 375 N.E.2d 112
Next, petitioners claim that the court erred in failing to remove the executor. Section 23-2 of the Probate Act specifies the following grounds by which the court may remove a representative:
"If the representative:
(1) is acting under letters secured by false pretenses;
(2) is adjudged a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code or is adjudged a disabled person;
(3) is convicted of a felony;
(4) wastes or mismanages the estate;
(5) conducts himself in such a manner as to endanger his co-representative or the surety on his bond;
(6) fails to give sufficient bond or security, counter security or a new bond, after being ordered by the court to do so;
(7) fails to file an inventory or accounting after being ordered by the court to do so;
(8) conceals himself so that process cannot be served upon him or notice cannot be given to him;
(9) becomes incapable of or unsuitable for the discharge of his duties; or
(10) there is other good cause."
(Ill.Rev.Stat.1989, ch. 110 1/2, par. 23-2(a).)
The trial court's decision to remove an executor will not be disturbed on review unless it is against the manifest weight of the evidence. (In re Estate of Debevec (1990), 195 Ill.App.3d 891, 897, 142 Ill.Dec. 302, 552 N.E.2d 1043.) Petitioners contend that the executor should have been removed because it failed to properly discharge its duties and wasted or mismanaged the estate. Petitioners assert that the executor's actions and attitude toward the petitioners indicate thoughtlessness and hostility. We will address each of petitioners' assertions in turn.
Petitioners assert that the executor should be removed for attempting to remove Cheryl O'Connor as guardian of the estates of Joel F. Kirk II and Debra L. Kirk,...
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