Melin, In re

• Decision Date: 27 November 1951
• Docket Number: No. 31992,31992
• Citation: 410 Ill. 332,102 N.E.2d 119
• Parties: In re MELIN.
• Court: Illinois Supreme Court

Page 119

102 N.E.2d 119

410 Ill. 332

In re MELIN.

No. 31992.

Supreme Court of Illinois.

Nov. 27, 1951.

Harry B. Hoffman, of Peoria, amicus curiae.

Edwin V. Champion, of Peoria, and Andrews & Andrews, of Kewanee, for respondent.

HERSHEY, Justice.

Respondent, Carl A. Melin, was admitted to the bar in 1905. May 25, 1950, the chairman of the Committee on Inquiry of the Illinois State Bar Association filed a formal complaint against respondent, and after pleadings were filed and hearings held, the Committee on Grievances recommended that respondent be suspended from the practice of law for a period of one year. Thereafter, the Board of Governors of the Illinois State Bar Association filed their report in this court, recommending that respondent be suspended from the practice of law for six months, under Rule 59 of this court. Respondent filed exceptions to the report of the Board of Governors.

The original complaint filed against respondent before the Committee on Grievances contained two counts. The first charged that respondent, while acting as executor of the estate of Margarette Lucia Stitt, filed no inventory or executor's report for fifteen years, that he paid out funds of the estate to purchase in his own name at a tax sale certain real estate devised under the will of the decedent and, thereafter, to pay taxes and insurance on that realty and inprovements; and further, that he did not keep the estate funds separate from all other accounts and funds, but deposited them in his own name.

The second count alleged that respondent was appointed executor of the estate of Henry Stephenson upon probate of his will in 1943. The respondent, as executor, is charged with converting the entire estate into cash but failing to make final distribution to the heirs until June, 1949. At the close of all evidence an amendment to the complaint was filed as count III charging respondent with commingling the funds of these two estates with his personal bank accounts, and that the balance of his accounts was sometime below the total estates' funds.

No substantial dispute exists as to the facts. Margarette Lucia Stitt died testate May 4, 1934, at Alpha, in Henry County, naming Carl A. Melin as executor. By her will she made certain cash bequests, disposed of certain items of personalty, devised her home and all its furnishings to Dr. and Mrs. N. A. N. Cleven, of Pittsburgh, Pennsylvania, recited she left nothing to her brothers due to their injustices, and named the Methodist Episcopal Church of Alpha as residuary legatee. In November, 1949, at the request of the Committee on Inquiry, respondent set up a separate bank account for the estate funds.

The will of Henry A. Stephenson was admitted to probate in April, 1943, naming respondent as executor. In June, 1943, as executor, respondent sold the property as he was authorized to do under the will. The son, Franklin Stephenson, objected to the sale of the land. The sale price was $11,300 on a contract, with $2,500 down and the balance at interest on time, the final payment being made October, 1947.

Respondent testified that he did not think his bank accounts ever fell below the total of the estates' funds, and offered to bring in bank statements. He later reported he was unable to obtain the bank deposit slips, and that he did not request copies of the bank ledgers. He admitted that there were times when he did not have sufficient funds in the banks to take care of the total of the two estates. No financial loss was sustained, however by either estate.

After respondent's admission to the bar he practiced in Springfield for five years and in 1910 went to Cambridge, in Henry County. There he lives and engages in the practice of law. The president of the Henry County Bar Association and seven other prominent and leading attorneys of Henry County, most of whom were well acquainted with respondent during his career as a lawyer in Henry County, testified to his good reputation. The testimony as to the good reputation of respondent cannot be ignored, In re Feldman, 373 Ill. 563, 27 N.E.2d 471, but it is not sufficient to overcome any positive facts evidenced by the record. In re Harris, 383 Ill. 336, 50 N.E.2d 441. It is only to be considered with all the other facts of the case.

It is shown by the record that the respondent did commingle the funds of the estates in his own personal bank accounts. No law requires that an executor of an estate keep the funds belonging to an estate separate and distinct from his own funds. Mayer v. McCracken, 245 Ill. 551, 92 N.E. 355. However, respondent failed to bring in records of his bank accounts and admitted that at times the total funds available were less than the total estates' funds. It is thus evident that respondent used some of the estates' funds for purposes other than estate obligations. It is indeed unfortunate that the records of accounts in more detail were not produced so as to determine the frequency of such occurrence and the amount of the deficiency existing each time. Nothing is more certain than the fact that a clear case of conversion by an attorney of money belonging to another amounts to 'moral turpitude * * * sufficient to merit * * * disbarment.' In re Rieger, 402 Ill. 483, 84 N.E.2d 439, 440; In re Koptik, 406 Ill. 141, 92 N.E.2d 462; In re Roth, 398 Ill. 131, 75 N.E.2d 278; In re Both, 376 Ill. 177, 33 N.E.2d 213. It is true that in this case no specific intent to...