Roth's Estate, In re

• Decision Date: 12 December 1974
• Docket Number: No. 74--52,74--52
• Citation: 24 Ill.App.3d 412,321 N.E.2d 81
• Parties: In the Matter of the ESTATE of Edwin J. ROTH, Deceased. Irene ROTH, Individually and as Co-Executor of the Estate of Edwin J. Roth, Deceased, and as Co-Executor of the Estate of Fannie Roth, Deceased, et al., Petitioners-Appellants, v. Melvin E. ROTH, Co-Executor of the Estate of Edwin J. Roth, Deceased, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 81

321 N.E.2d 81

24 Ill.App.3d 412

In the Matter of the ESTATE of Edwin J. ROTH, Deceased.

Irene ROTH, Individually and as Co-Executor of the Estate of

Edwin J. Roth, Deceased, and as Co-Executor of the

Estate of Fannie Roth, Deceased, et al.,

Petitioners-Appellants, v. Melvin E. ROTH, Co-Executor of the Estate of Edwin J. Roth, Deceased, Respondent-Appellee.

No. 74--52.

Appellate Court of Illinois, Third District.

Dec. 12, 1974.

David B. Radley, Safford, West, Tornow, Radley, Mathers, Peoria, for petitioners-appellants.

Wilson C. Washkuhn, Sutkowski & Washkuhn, Assoc., Peoria, for respondent-appellee.

STOUDER, Justice:

Petitioner, Melvin Roth, one of two coexecutors of the estate of Edwin Roth, filed his final report and petition for approval thereof and discharge as such coexecutor. Beneficiaries of the Edwin Roth estate objected to the final report and its approval but the circuit court of Tazewell County approved the report and discharged the co-executor from which judgment this appeal follows.

Edwin Roth died a resident of Tazewell County, Illinois, on January 17, 1964, leaving as his heirs-at-law his widow, Fannie Roth, and four children. His will was admitted to probate on February 26, 1964 and Melvin and Irene Roth, two of his children, were appointed and qualified as executors. Testator owned an undivided one-half interest in each of two farms, the other one-half interest being owned by his widow. By his will the testator devised his interest in one of the farms to his widow for her life and upon her death to his four children. By his residuary clause the testator left the remainder of his property including his interest in the other farm to his widow.

On March 8, 1971, Fannie Roth died and Irene and Alice Roth were appointed co-executors of her estate. On January 8, 1973, Melvin Roth filed a final report and account in the Edwin Roth Estate with a petition for approval of his final account. Objections to the final report were filed by Melvin Roth's three sisters, Irene, Alice and Frances and by Irene and Alice in their representative capacities.

The report filed by Melvin Roth in January, 1973 was the only report which he filed concerning his acts and doings since the date of his appointment in 1964. Prior to his father's death Melvin had been the tenant on the two farms in which his father had an interest and also had farmed two other farms in which his father had no interest. After his father's death Melvin continued to be the tenant on all four farms without any written lease or approval of the court and after his appointment as co-executor he represented the estate with respect to such farms. Irene, the other co-executor, did not exercise any control of the farms and did nothing as co-executor claiming she had not been permitted to do so by her brother. It appears that in the operation of the farms by Melvin the transactions were intermingled and not completely segregated. As indicated earlier, the court did approve the co-executor's final report and the beneficiaries of the estate have appealed.

The principal assignments of error urged by the objectors on this appeal relate to the contention that the reports filed by the co-executor are insufficient to show the nature and propriety of the transactions which occurred. Before discussing the errors urged by appellants it will be necessary to consider appellee's contentions that this appeal should be dismissed first, because the appellants failed to file timely notice of appeal and, second, because the objections to the reports were not timely made in the trial court.

As indicated earlier Melvin Roth filed his report on January 8, 1973 and the beneficiaries filed their objections on January 27, 1973. These objections were never formally ruled upon but on August 21, 1973 the co-executor filed a supplemental report. The report and supplemental report were approved on September 7, 1973 after notice and hearing at which time counsel for the objectors and some of the objectors were present but offered no evidence. On October 1, 1973 the objectors moved to vacate the order approving the report and discharging the co-executor. A hearing was had on the motion, testimony was introduced and on November 5, 1973 the court suspended its previous order approving the report and directed the co-executor to file a supplemental report regarding two general areas included in the report, namely, amounts received from the government as agricultural subsidies and amounts paid to an individual. Thereafter the co-executor filed another supplemental report in accord with the directions of the court and on November 27, 1973 a hearing was had at which time the reports of the co-executor were approved and he was discharged. Notice of appeal was filed on December 6, 1973 and it is the contention of appellee that because the order of November 5, 1973 was a final and appealable order, the notice of appeal filed by appellants on December 6, more than thirty days thereafter, was not timely filed and hence this court has no jurisdiction to consider the appeal.

In support of its contention the appellee refers to Supreme Court Rule 303(a) (Ill.Rev.Stat.1971, ch. 110A, par. 303(a)) which provides '* * * the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed * * *, within 30 days after the entry of the order disposing of the motion.'

According to appellee the order of November 5, 1973 disposed of the post-trial motion and therefore the period during which an appeal could properly be filed commenced as of that date. We believe the appellee misapprehends the meaning of the rule because the disposition referred to must mean a final disposition otherwise there is no order 'disposing of the motion'. As in this case where the prayer of a post-trial motion is granted it may be that it does not dispose of the controversy and whether the order does so dispose of a controversy...