Hire v. Hrudicka (In re Hire's Estate)

• Decision Date: 07 May 1941
• Docket Number: Gen. No. 9596.
• Parties: IN RE HIRE'S ESTATE. HIRE v. HRUDICKA.
• Court: United States Appellate Court of Illinois

309 Ill.App. 566

33 N.E.2d 652

IN RE HIRE'S ESTATE.

HIRE

v.HRUDICKA.

Gen. No. 9596.

Appellate Court of Illinois, Second District.

April 12, 1941.

Rehearing Denied May 7, 1941.

Appeal from Circuit Court, Henry County; Leonard E. Telleen, Judge.

Proceeding in the matter of the conservatorship estate of Herman R. Hire, incompetent. Bessie L. Hire, conservatrix of the estate of the estate of Herman R. Hire, an incompetent person, filed a petition for citation against Robert H. Hrudicka to compel him to disclose and turn over property in his possession belonging to the ward. A judgment was entered in the county court finding that Robert H. Hrudicka had converted to his own use property and money of the ward to the amount of $8,154.45, and Robert H. Hrudicka appealed from such judgment to the circuit court. During the pendency of the appeal, the ward died. From a judgment abating the suit, the conservatrix appeals.

Affirmed. Andrews, Young & Andrews, of Kewanee, for appellant.

Roswell B. O'Harra, of Macomb, and John F. Garner, of Quincy, for appellee.

HUFFMAN, Justice.

Appellant Bessie L. Hire was appointed conservatrix of the estate of Herman R. Hire in November, 1937. In December of that year she filed her petition in the County Court of Henry County under Sections 54 and 55 of Ch. 86, Ill. St. 1939, Smith-Hurd Stats. c. 86, §§ 54, 55, for citation against appellee to compel him to disclose and turn over property in his possession belonging to the ward. The County Court found that appellee had converted to his own use property and money of the ward to the amount of $8,154.45 and entered judgment accordingly. Appeal was taken by appellee from that judgment to the Circuit Court of Henry County. Subsequently,and on February 19, 1939, the ward died. Appellee then moved the court to dismiss the cause on the ground that appellant, as conservatrix, could no longer maintain the action; and that upon the death of the ward, the same abated so far as appellant's right to further prosecute such action. The motion of appellee was allowed and the court ordered the suit to abate. Appellant prosecutes this appeal from the order of the court sustaining appellee's motion, and its judgment abating the suit. It will be observed that this case is to be considered under the statute as it existed prior to the Probate Act which became effective January 1, 1940. Smith-Hurd Stats. c. 3, § 151 et seq.

Appellee has filed his motion in this court to dismiss the appeal, which motion is based upon the same ground contained in his motion in the trial court. Therefore, the motion filed in this court has been taken with the case.

The question presented by this appeal is whether the appellant can maintain this action against appellee, following the death of her ward.

It is insisted by appellee that upon the death of the ward all powers and authority of a conservator or guardian cease and determine, and that such relationship can only continue for the purpose of permitting a final settlement of the ward's account. It is insisted by appellant that it was the legislative intent that a conservator might maintain an action such as this and that it did not abate upon the death of the ward.

We do not find where this precise question has been before a court of review in this state. However, the rule is general, that on the restoration of a lunatic or person of unsound mind to reason, the occasion for the interference of the state with their affairs ceases and such person has the right to be put in possession of his property, and to demand discontinuance of the guardianship over him, and in such case, the court will restore such person to his condition sui juris and order the guardian or conservator to deliver and pay to him all money and property which he may have, or to which the ward may be entitled.

The guardianship also terminates with the death of the lunatic; and the only power which the court retains over the guardian or conservator in such case is, as in case of the termination of the guardianship by the restoration of the ward, to compel an accounting and delivery of the property of the ward.

Situations arising from a restoration or death of the ward are commonly provided for by statute. We find that Sec. 9 of the Conservator Act of this state, Ch. 86, Ill.St.1939, Smith-Hurd Stats. c. 86, § 9, provides when a conservator may make final settlement and distribution of the estate upon the death of his ward. The provisions of this section are the same in all material respects as the provisions of Sec. 16 of Ch. 64 of the statute, Smith-Hurd Stats. c. 64, § 16, having to do with final settlement of a deceased ward's estate by a guardian. And in this respect, the Supreme Court in the case of Whittemore v. Coleman, 239 Ill. 450, at page 453, 88 N.E....