In re Estate of Burd

• Decision Date: 13 December 2004
• Docket Number: No. 2-03-1321.,2-03-1321.
• Citation: 354 Ill. App.3d 434,820 N.E.2d 613,289 Ill.Dec. 837
• Parties: In re ESTATE OF Margaret P. BURD, Deceased (Susan Ross, Petitioner-Appellee, v. Kenneth F. Theisen, Ex'r of the Estate of Margaret P. Burd, Deceased, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

820 N.E.2d 613

354 Ill. App.3d 434

289 Ill.Dec. 837

In re ESTATE OF Margaret P. BURD, Deceased (Susan Ross, Petitioner-Appellee, v. Kenneth F. Theisen, Ex'r of the Estate of Margaret P. Burd, Deceased, Respondent-Appellant).

No. 2-03-1321.

Appellate Court of Illinois, Second District.

December 13, 2004.

Thomas L. Brejcha, Tews, Theisen & Lawler, Chicago, for Kenneth F. Theisen.

Jack Mardoian, Jack C. Mardoian, Ltd., Lake Forest, James R. Carey, Levin & Schreder, Ltd., Chicago, Michael F. Bonamarte III, Highland Park, Daniel F. Marren, Chuhak & Tecson, P.C., Chicago, for Susan Ross.

Robert Burd, Lake Forest, Pro Se.

Justice KAPALA delivered the opinion of the court:

The former executor of Margaret P. Burd's estate, Kenneth F. Theisen (Theisen), appeals from the order of the circuit court of Lake County denying his motion to reconsider the circuit court's order removing him as executor. We reverse.

I. BACKGROUND

Margaret Burd (Burd) had three children, Nancy Lefler, Robert Burd, and petitioner, Susan Ross. Burd signed her last will and testament on June 15, 2001. The will was witnessed by Theisen and his wife Mary Theisen. Theisen was Burd's attorney and had also represented other members of the Burd family, including Burd's three children, during the past 25 years. Theisen was also named as the executor of Burd's estate. Burd died on December 27, 2001.

On January 16, 2002, Theisen filed a petition for probate of will and for letters testamentary. On January 25, 2002, an order was entered admitting the will to probate and appointing Theisen as independent executor. Also on that date, an affidavit of heirship was filed upon which an order of heirship was entered. A waiver of notice, which had been signed by all three of Burd's children, was also filed on January 25, 2002. This waiver indicated, inter alia, that signing the document meant that the signer consented to the appointment of Theisen as "Independent Representative" of the estate. All three Burd children also signed an "Appearance and Proof of Will" form.

On February 25, 2002, petitioner's counsel sent a notice of motion to all parties regarding a petition for substitution of judge. On March 1, 2002, petitioner's counsel filed an appearance. Theisen acted as executor without objection to his representative status until March 4, 2003. On that date, petitioner filed her petition for revocation of letters of office. The petition alleged that Theisen violated section 4-6(a) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/4-6(a) (West 2002)), which provides that an attesting witness forfeits any beneficial interest in a will unless certain exceptions, not applicable to this case, are present. Theisen argued in the trial court, inter alia, that the motion was not timely filed. The trial court granted the petition and removed Theisen as executor. Theisen filed a motion to reconsider which was denied. Theisen timely appealed.

II. DISCUSSION

Theisen makes three contentions on appeal. First, that petitioner's motion for removal was time barred under Supreme Court Rule 304(b)(1) (155 Ill.2d. R. 304(b)(1)). Second, that petitioner's actions in the trial court amounted to a waiver of her right to challenge Theisen's appointment as executor. Third, that petitioner did not comply with the procedural and substantive requirement of section 23-2 of the Probate Act (755 ILCS 5/23-2 (West 2002)), which governs removal of executors. As we explain below, we agree with Theisen's first contention and we find our resolution of this issue dispositive.

Preliminarily, we note that the parties disagree as to the standard of review which is appropriate in this case. Theisen admits that, generally, the decision to remove an executor will not be reversed unless the decision was against the manifest weight of the evidence. In re Estate of Kirk, 242 Ill.App.3d 68, 74, 183 Ill.Dec. 274, 611 N.E.2d 537 (1993). However, Theisen contends that when the decision to remove involves interpretation of law, our review should proceed de novo. We agree. In order to determine the appropriate standard of review, we must not simply look to the type of ruling being appealed, but we must analyze the contentions made by the appellant. An appeal from a given ruling could implicate several different standards of review depending on the appellate contentions. See Franz v. Calaco Development Corp., 352 Ill.App.3d at 1137-40, 288 Ill.Dec. 669, 818 N.E.2d 357 (2004). As we have already stated, we will address only Theisen's first contention as our resolution of that issue is dispositive. However, we find it important to note that all three of Theisen's contentions on appeal do not dispute any factual findings of the trial court but, instead, Theisen asks us to determine the legal effect of a supreme court rule, certain sections of the Probate Act (755 ILCS 5/1-1 et seq. (West 2002)), and actions taken by petitioner. We review questions of law, including the construction of statutes and supreme court rules, de novo. Robidoux v. Oliphant, 201 Ill.2d 324, 332, 266 Ill.Dec. 915, 775 N.E.2d 987 (2002).

Theisen contends that Supreme Court Rule 304(b)(1) (155 Ill.2d R. 304(b)(1)) mandates that a motion to remove an executor must be filed within 30 days of the order appointing the executor. Rule 304 states, in relevant part:

"(b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:

(1) A judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party." 155 Ill.2d R. 304(b)(1).

The committee comments further elaborate on Rule 304(b)(1) by stating:

"Subparagraph (1) applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are an order admitting or refusing to admit a will to probate, appointing or removing an executor, or allowing or disallowing a claim." 155 Ill.2d R. 304(b)(1), Committee Comments.

We construe supreme court rules in the same manner that we construe statutes. Robidoux, 201 Ill.2d at 332, 266 Ill.Dec. 915, 775 N.E.2d 987. Therefore, our primary task is to ascertain and give effect to the intent of the drafters. Robidoux, 201 Ill.2d at 332, 266 Ill.Dec. 915, 775 N.E.2d 987. The most reliable indicator of the intent of the drafters is the language of a rule, which should be given its plain and ordinary meaning. Robidoux, 201 Ill.2d at 332, 266 Ill.Dec. 915, 775 N.E.2d 987. Committee comments to supreme court rules are not binding but they may used to determine the application of a rule. Wright v. Desate, Inc., 292 Ill.App.3d 952, 954, 227 Ill.Dec. 43, 686 N.E.2d 1199 (1997). Committee comments can also be used in interpreting an ambiguous rule. Hornburg v. Esparza, 316 Ill.App.3d 801, 806, 250 Ill.Dec. 36, 737 N.E.2d 658 (2000). Petitioner contends that an order appointing an executor is not within the scope of Rule 304(b)(1). Petitioner asserts that an executor's status can never be final because an executor can be removed for a variety of reasons. However, at most, petitioner points out that Rule 304(b)(1) may be ambiguous as to whether an appointment order is appealable. Even if such an ambiguity is present, resort to the committee comments clearly resolves the ambiguity by stating that orders appointing an executor are appealable under Rule 304(b)(1). Similarly, any ambiguity as to whether an order removing an executor is appealable is resolved by the committee comments stating that such orders are appealable. See also In re Estate of Moses, 13 Ill.App.3d 137, 145, 300 N.E.2d 473 (1973) (stating that, pursuant to Rule 304(b)(1) and the committee comments, the "order removing [the executor] was a final and appealable order"). Therefore, it is clear that Rule 304(b)(1) was meant to apply to appeals from orders appointing an executor and orders removing an executor. Other Illinois courts have discussed the committee comments in determining the scope of Rule 304(b)(1). See, e.g., In re Estate of Thorp, 282 Ill.App.3d 612, 616, 218 Ill.Dec. 416, 669 N.E.2d 359 (1996).

Further, Illinois courts have decided that an appeal taken from an order within the scope of Rule 304(b)(1) must be taken within 30 days from the entry of the judgment or order or be barred. Thorp, 282 Ill.App.3d at 616, 218 Ill.Dec. 416, 669 N.E.2d 359. "One of the central reasons for making appeals mandatory under Rule 304(b)(1) is to insure the certainty of some issues during lengthy procedures such as estate administration. [Citation.]" Kelleher v. Hood, 238 Ill.App.3d 842, 846-47, 179 Ill.Dec. 4, 605 N.E.2d 1018 (1992). Thus, any appeal from the order appointing Theisen as executor would have to have been filed within 30 days of the entry of the order to be considered timely. In this case, however, petitioner did not appeal the appointment of Theisen but instead chose to file a petition seeking his removal. As we have stated above, Theisen contends that the time limit for filing a notice of appeal also establishes the time limit for filing a petition for removal. We agree with Theisen that the time limit for filing a motion challenging his appointment for the reasons advanced by petitioner was 30 days from the order appointing him executor. However, we believe that this time limit is set by section 2-1203 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West 2002)), not by Rule 304(b)(1).

In Lampe v. Pawlarczyk, 314 Ill.App.3d 455, 247 Ill.Dec. 94, 731 N.E.2d 867 (2000), the court applied Supreme Court Rule 303(a)(1) (155 Ill.2d. R. 303(a)(1)) and section 2-1203 of the Code to a judgment within the scope of Rule 304(b)(1). Lampe, 314 Ill.App.3d at 469, 247 Ill.Dec. 94, 731 N.E.2d 867. The court in Lampe determined that an appeal from an order under the scope of Rule 304(b)(1), namely, an order denying attorney fees in...