{ "id": 3632308, "name": "In re ESTATE OF ROBERT J. McCUBBIN, Deceased (Donald J. McCubbin et al., Petitioners-Appellants, v. Irene McCubbin, Adm'r of the Estate of Robert J. McCubbin, Respondent-Appellee)", "name_abbreviation": "McCubbin v. McCubbin", "decision_date": "1984-06-21", "docket_number": "No. 83\u20141090", "first_page": "74", "last_page": "80", "citations": [ { "type": "official", "cite": "125 Ill. App. 3d 74" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "128 A.2d 467", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "23 N.J. 193", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1310906 ], "opinion_index": 0, "case_paths": [ "/nj/23/0193-01" ] }, { "cite": "30 S.E. 735", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "104 Ga. 188", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 388628 ], "opinion_index": 0, "case_paths": [ "/ga/104/0188-01" ] }, { "cite": "103 A. 523", "category": "reporters:state_regional", "reporter": "A.", "year": 1898, "opinion_index": 0 }, { "cite": "87 N.J. Eq. 655", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 151457 ], "year": 1898, "opinion_index": 0, "case_paths": [ "/nj-eq/87/0655-01" ] }, { "cite": "33 N.Y.S.2d 81", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1983, "opinion_index": 0 }, { "cite": "178 Misc. 43", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 904386 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/misc/178/0043-01" ] }, { "cite": "80 S.E. 551", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1941, "opinion_index": 0 }, { "cite": "141 Ga. 75", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 560342 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/ga/141/0075-01" ] }, { "cite": "588 P.2d 1136", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1913, "opinion_index": 0 }, { "cite": "91 Wash. 2d 324", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1101838 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/wash-2d/91/0324-01" ] }, { "cite": "138 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 2d 541", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5161723 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/11/0541-01" ] }, { "cite": "68 N.M. 82", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2719608 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/68/0082-01" ] }, { "cite": "117 N.E.2d 414", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "1 Ill. App. 2d 255", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5118299 ], "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/1/0255-01" ] }, { "cite": "60 N.E. 507", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "190 Ill. 243", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3243315 ], "opinion_index": 0, "case_paths": [ "/ill/190/0243-01" ] }, { "cite": "86 Ill. App. 294", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5269560 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/ill-app/86/0294-01" ] }, { "cite": "70 N.E. 1047", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1899, "opinion_index": 0 }, { "cite": "209 Ill. 483", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3301270 ], "weight": 2, "year": 1899, "opinion_index": 0, "case_paths": [ "/ill/209/0483-01" ] }, { "cite": "110 Ill. App. 413", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2557133 ], "weight": 2, "year": 1904, "pin_cites": [ { "page": "426" }, { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/ill-app/110/0413-01" ] }, { "cite": "130 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. App. 2d 25", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5150093 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/8/0025-01" ] }, { "cite": "202 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. App. 2d 278", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5280038 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/52/0278-01" ] }, { "cite": "457 A.2d 1", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "opinion_index": 0 }, { "cite": "92 N.J. 423", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 348843 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nj/92/0423-01" ] }, { "cite": "42 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "314 Ill. App. 496", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3389721 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/314/0496-01" ] } ], "analysis": { "cardinality": 747, "char_count": 16532, "ocr_confidence": 0.743, "pagerank": { "raw": 5.495215269906281e-08, "percentile": 0.34397121222125304 }, "sha256": "393a4e2fffb299406dd434b37d25cf6eb6ea882b194c68088adbb2730727e743", "simhash": "1:7705a84de89af69f", "word_count": 2719 }, "last_updated": "2023-07-14T15:49:19.537276+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF ROBERT J. McCUBBIN, Deceased (Donald J. McCubbin et al., Petitioners-Appellants, v. Irene McCubbin, Adm'r of the Estate of Robert J. McCubbin, Respondent-Appellee)." ], "opinions": [ { "text": "JUSTICE JIGANTI\ndelivered the opinion of the court:\nThe issues central to this action are whether the good will attendant to a physician\u2019s medical practice and the opportunity to operate the practice for profit survive the physician\u2019s death and thus become a part of his personal estate. Dr. Robert J. McCubbin operated a medical practice as an unincorporated sole practitioner. He died intestate in 1970, leaving as his heirs at law his wife, Irene McCubbin, and three children from his previous marriage. Irene was appointed administrator of the estate. During the years after the doctor\u2019s death, Irene has operated a medical clinic in the same offices that had been occupied by her husband\u2019s practice.\nFollowing a number of events which shall be detailed later in this opinion, the children filed a citation to recover assets, claiming, among other things, that the estate was entitled to the profits realized by the clinic since their father\u2019s death and that the clinic was an asset of the estate which should be sold. Irene answered the petition, alleging that no cause of action was stated because the deceased\u2019s practice terminated upon his death as a matter of law. Both the children and Irene filed motions for summary judgment. Irene\u2019s motion was granted. The children\u2019s motion was denied, and they now appeal.\nThe focus of this appeal thus revolves around whether the good will inherent in the deceased\u2019s practice and the opportunity to operate the practice for profit survived the deceased\u2019s death. While the two issues are interrelated, the remedies sought in conjunction with each differ. Specifically, the children seek recovery of a sum equal to the value of the clinic\u2019s good will at the time of the deceased\u2019s death. They also seek revenues received from the clinic following the deceased\u2019s death, arguing that an \u201copportunity to operate the practice for a profit\u201d survived the death of the deceased. While the children make no distinction between these two issues in their appellate briefs, we shall address each issue individually for the purposes of clarity. The following chronology of facts provides the backdrop for our discussion of these issues.\nIn 1945, the deceased and one Dr. Fitzgerald began practicing medicine together. In 1967, the deceased and Fitzgerald entered into an agreement whereby the deceased received a covenant not to compete from Fitzgerald and bought certain furniture, fixtures, equipment and supplies from him. Both before and after Fitzgerald\u2019s exit, the medical practice catered to patients whose injuries and illnesses arose in the course of their employment (workers\u2019 compensation patients), as well as to patients whose injuries were not work related (private patients). In regard to the workers\u2019 compensation patients, both Fitzgerald and the deceased advised a number of employers and their insurance carriers that they were available to treat patients for work-related injuries and that they would seek payment from the employers\u2019 insurance companies, not the patients. No contract existed between the employers or the insurance carriers and the doctors, however, and the patients were free to visit any doctor they chose. The relationship with the workers\u2019 compensation patients differed from that with the private patients only in regard to the party paying the bills.\nFollowing the deceased\u2019s death and the appointment of Irene as the administrator of his estate, Irene obtained a court order permitting her to continue the deceased\u2019s practice for a period not to exceed six months. Irene, a nurse, hired a number of doctors on a part-time basis to complete the treatment of several patients who had been under the deceased\u2019s care prior to his death. Irene also marshalled all accounts receivable. Receipts for the above activities were included in Irene\u2019s final account to the estate, which reflected revenues received through May 18, 1971.\nThereafter, Irene received a court order to sell certain items of personal property possessed by the deceased, including medical and office equipment and fixtures. She arranged to buy back these items for her own use. Irene then began operating a medical clinic in the same premises previously occupied by the deceased\u2019s practice. The name \u201cThe McCubbin Medical Center\u201d remained unchanged, and Irene operated under the same lease as the one that existed prior to the deceased\u2019s death. She later purchased the offices outright in 1978.\nIn late 1971, Irene contacted several employers and insurance carriers to inform them of the nature of the practice at the clinic. The practice has been and is limited exclusively to the treatment of workers\u2019 compensation patients. Irene has hired a number of doctors to treat those patients. None of the patients treated by the clinic were treated by the deceased during his lifetime.\nWhen Irene presented her final account of the estate\u2019s assets in late 1977, the children appeared and objected, claiming that the reve-n\u00faes from the clinic, as well as the clinic itself, were property of the estate. Following a number of events which are not pertinent to this opinion, the children filed a fifth amended citation for the recovery of assets. The citation alleged that the estate was entitled to recover a sum equal to the value of the clinic\u2019s good will at the time of the deceased\u2019s death. The children further sought to impose a constructive trust upon revenues received by the clinic since the deceased\u2019s death and to sell the clinic outright because an \u201copportunity to operate the practice for a profit\u201d survived the death of the deceased and became a part of the estate. Both the children and Irene presented motions for summary judgment. Following oral arguments the trial court granted Irene\u2019s motion, specifically finding that the deceased\u2019s practice terminated upon his death. The order further stated that neither good will nor the opportunity to operate the clinic for a profit survived the deceased\u2019s death and became an asset of his estate.\nThe primary issue defined by the parties is whether the good will attendant to the deceased\u2019s medical practice could legally survive his death and thus become a part of his personal estate. Good will is a species of property (McIlvaine v. City National Bank & Trust Co. (1942), 314 Ill. App. 496, 42 N.E.2d 93), and has been described as \u201cthe most \u2018intangible\u2019 of the intangibles\u201d (see Dugan v. Dugan (1983), 92 N.J. 423, 457 A.2d 1). The good will of a business is primarily characterized by the personal relationships and customer contacts which the owner of the business has been able to develop. (McCook Window Co. v. Hardwood Door Corp. (1964), 52 Ill. App. 2d 278, 202 N.E.2d 36.) It may not be separated from or disposed of independently of the business in which it inheres, and it can have existence only as an incident of a continuing business having locality or name. (McIlvaine v. City National Bank & Trust Co. (1942), 314 Ill. App. 496, 42 N.E.2d 93.) Good will is not a tangible asset, and not all businesses possess good will. Behn v. Shapiro (1955), 8 Ill. App. 2d 25, 130 N.E.2d 295.\nUnder Illinois law, \u201cgood-will can not exist as to other than purely commercial or trade partnerships or business of that nature, except by special contract *** \u2018In a business of a professional nature, as that of an attorney or apothecary, the good-will attaches to the person rather than to any other subject ***.\u2019 \u201d (Acme Harvester Co. v. Graver (1903), 110 Ill. App. 413, 426, aff\u2019d sub nom. Craver v. Acme Harvester Co. (1904), 209 Ill. 483, 70 N.E. 1047; see also Douthart v. Logan (1899), 86 Ill. App. 294, aff\u2019d (1901), 190 Ill. 243, 60 N.E. 507 (the court states \u2014=\u2014 fessional practice of a physician does not possess good will absent a special contract).) \u201c \u2018Good will is not strictly applicable to a professional partnership, for its business has no local existence, but is entirely personal, consisting in a confidence in the integrity and ability of the individual.\u2019 \u201d Cook v. Lauten (1954), 1 Ill. App. 2d 255, 261, 117 N.E.2d 414, 416.\nIn the case at bar, the children seek to avoid the application of the above-cited line of case law, which holds that good will cannot exist except in cases of purely commercial or trade businesses. Specifically, the children argue that the deceased\u2019s practice was a commercial rather than professional venture because many of the clinic\u2019s patients were workers\u2019 compensation patients who were referred to the clinic by their employers and because the insurance companies representing those employers paid the patients\u2019 bills. The children thus maintain that a workers\u2019 compensation patient \u201cis not a patient in the traditional sense [but] merely the subject which is to be inspected for the client, the insurance company.\u201d We find these arguments unconvincing.\nInitially we believe that regardless of the source of the referrals to the clinic, a doctor-patient relationship existed between the deceased and his patients wherein the patients reposed their trust and confidence in the deceased. The mere fact that these patients were referred to the deceased by their employers did not turn the doctor-patient relationship into a commercial enterprise or transfer the patients into \u201csubjects to be inspected\u201d rather than persons concerned with their health and well being. A personal doctor-patient relationship existed between the deceased and his patients, and we do not think that this professional relationship was in any way eroded because the patients\u2019 employers referred them to the clinic or because the bills were paid by insurance companies rather than by the patients.\nThe undisputed facts before the court during the cross-motions for summary judgment further revealed that the patients were free to visit any doctor they chose and that the clinic operated by Irene never treated any of the same patients who had been treated by the deceased. The record also discloses that while the practice managed by Irene treats only workers\u2019 compensation patients, the deceased\u2019s practice included a large number of private patients who were not patients of the clinic following the deceased\u2019s death. While Irene contacted certain of the employers and insurance companies that the deceased had previously contacted, it would be pure speculation on the part of this court to conclude that her efforts were successful only because she was able to rely upon the good will of the deceased\u2019s practice.\nWe believe that these undisputed facts, taken in conjunction with one another, amply demonstrate that the deceased\u2019s was a professional practice, rather than a business of a commercial nature, that did not continue without change following his death. We therefore find that the Illinois cases holding that good will cannot exist except in cases of purely commercial or trade businesses are applicable to the case at bar. Consequently, we believe that the trial court properly ruled that the children failed to state a cause of action in alleging that the good will inherent in the deceased\u2019s professional medical practice survived his death so as to become a part of his personal estate.\nWe are not persuaded by two cases from other jurisdictions which have been cited by the children in support of their good will argument. Durio v. Johnson (1961), 68 N.M. 82, 358 P.2d 703, holds that the good will of an ongoing veterinary medicine partnership may be sold by contract where a covenant not to compete supplies the consideration for the contract. Durio is similar to Hicklin v. O\u2019Brien (1956), 11 Ill. App. 2d 541, 138 N.E.2d 47, an Illinois case cited by neither of the parties to this action. Hicklin upheld a noncompetitive covenant incidental to the sale of an ongoing law practice which limited the geographical area in which the selling attorney could practice.\nWe think that Durio and Hicklin are distinguishable from the case at bar for two reasons. First, as we stated earlier, \u201cgood-will can not exist as to other than purely commercial or trade partnerships or business of that nature, except by special contract ***.\u201d (Acme Harvester Co. v. Craver (1903), 110 Ill. App. 413, 426, aff\u2019d sub nom. Craver v. Acme Harvester Co. (1904), 209 Ill. 483, 70 N.E. 1047.) Both Durio and Hicklin involved a special contract of the sort referred to in the Acme Harvester case. Both cases involved a written contract which depended upon a covenant not to compete as consideration for the contract. In the instant case, there was no such agreement and the principals concerning upholding or denying relief in a contract case such as Durio or Hicklin are not presently before this court. Thus, the general Illinois rule that no good will exists in a professional practice applies to this case. The second reason that we find Durio and Hicklin distinguishable from the instant case is that both cases concerned the ongoing practices of living professionals. However, the decisions we have encountered which addressed the good will of a deceased\u2019s professional practice, such as that in the instant case, have held that any alleged good will could not survive the death of the professional and would \u201csimply evaporate.\u201d (See In re Marriage of Fleege (1979), 91 Wash. 2d 324, 588 P.2d 1136; Ryman v. Kennedy (1913), 141 Ga. 75, 80 S.E. 551; In re Martin\u2019s Estate (1941), 178 Misc. 43, 33 N.Y.S.2d 81; Dugan v. Dugan (1983), 92 N.J. 423, 457 A.2d 1.) Other courts have simply stated that any alleged good will inherent in a professional\u2019s practice dies with the professional. (See Kremelberg v. Thompson (1917), 87 N.J. Eq. 655; 103 A. 523; Rakestraw v. Lanier (1898), 104 Ga. 188, 30 S.E. 735.) Consequently, we do not believe that either Durio or Hicklin offer any support for the arguments raised by the children in the case at bar.\nThe second case which the children cite in support of their argument is Tessmar v. Grosner (1957), 23 N.J. 193, 128 A.2d 467. Tessmar addressed the value of certain medical charts and records that had been owned by a deceased physician. Good will was not an issue in the case and was discussed only peripherally by the court. Because the children in the case at bar make no argument in regard to the deceased\u2019s medical records, we believe that their reliance upon Tessmar is misplaced. Therefore, the two cases cited by the children offer no support for this court to circumvent the generally recognized Illinois rule that no good will exists in a professional practice.\nThe final issue alluded to by the children on appeal is whether \u201can opportunity to operate the practice for a profit\u201d could survive the deceased\u2019s death as a matter of law and thus become a part of his personal estate. The children have offered no support for this contention other than their reliance upon two cases that concern good will and indeed, this court has been unable to locate any such authority. From what we can gather from our review of the children\u2019s argument, they essentially contend that the deceased operated a commercial business that continued unchanged after his death and that the estate is entitled to revenues received by the clinic following the deceased\u2019s death as well as the physical clinic itself. Other than the recovery sought, we see no distinction between the children\u2019s good will argument and their contention that an opportunity to operate the practice for a profit survived the deceased\u2019s death. It appears that at least for purposes of this case, the two alleged causes of action are intertwined to such an extent as to be indistinguishable. Because we have found that no good will could survive the death of a professional such as the deceased, we similarly conclude that an opportunity to operate the clinic for profit also could not survive.\nFor the foregoing reasons, we affirm the trial court\u2019s order of summary judgment in favor of Irene.\nAffirmed.\nLINN, P.J., and JOHNSON, J., concur.\nThe propriety of this sale was not challenged by the children in the trial court and is not presently before this court on appeal.\nIrene\u2019s assumption of the lease or the use of the clinic\u2019s name were not issues decided in the trial court\u2019s order and are not in issue here.", "type": "majority", "author": "JUSTICE JIGANTI" } ], "attorneys": [ "Dann Duff, of Chicago, for appellants.", "Levin, Ginsburg & Novoselsky, Ltd., of Chicago (Henry N. Novoselsky, of counsel), for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF ROBERT J. McCUBBIN, Deceased (Donald J. McCubbin et al., Petitioners-Appellants, v. Irene McCubbin, Adm'r of the Estate of Robert J. McCubbin, Respondent-Appellee).\nFirst District (4th Division)\nNo. 83\u20141090\nOpinion filed June 21, 1984.\nDann Duff, of Chicago, for appellants.\nLevin, Ginsburg & Novoselsky, Ltd., of Chicago (Henry N. Novoselsky, of counsel), for appellee." }, "file_name": "0074-01", "first_page_order": 96, "last_page_order": 102 }