{ "id": 3635851, "name": "In re ESTATE OF JAMES EDWARD BROOKS, Deceased (The United States of America, Appellant; Dorothy Moore, Ex'r of the Estate of James Edward Brooks, Appellee)", "name_abbreviation": "In re Estate of Brooks", "decision_date": "1985-06-14", "docket_number": "No. 5-84-0277", "first_page": "993", "last_page": "1002", "citations": [ { "type": "official", "cite": "134 Ill. App. 3d 993" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "560 F.2d 311", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 938084 ], "opinion_index": 0, "case_paths": [ "/f2d/560/0311-01" ] }, { "cite": "269 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 186375 ], "opinion_index": 0, "case_paths": [ "/us/269/0492-01" ] }, { "cite": "24 B.T.A. 807", "category": "reporters:specialty", "reporter": "B.T.A.", "case_ids": [ 12114864 ], "pin_cites": [ { "page": "811" } ], "opinion_index": 0, "case_paths": [ "/bta/24/0807-01" ] }, { "cite": "94 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "43 Ohio Op. 52", "category": "reporters:state", "reporter": "Ohio Op.", "opinion_index": 1 }, { "cite": "19 F. Cas. 1126", "category": "reporters:federal", "reporter": "F. Cas.", "case_ids": [ 6573855 ], "weight": 2, "pin_cites": [ { "page": "1127" } ], "opinion_index": 1, "case_paths": [ "/f-cas/19/1126-01" ] }, { "cite": "202 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "231 Ga. 400", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1129814 ], "opinion_index": 1, "case_paths": [ "/ga/231/0400-01" ] }, { "cite": "275 F.2d 113", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1953714 ], "opinion_index": 1, "case_paths": [ "/f2d/275/0113-01" ] }, { "cite": "108 A.L.R. 773", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1937, "opinion_index": 1 }, { "cite": "387 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "69 Ill. App. 3d 353", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241436 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/69/0353-01" ] }, { "cite": "448 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "114 Ill. App. 3d 107", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3590242 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/ill-app-3d/114/0107-01" ] }, { "cite": "242 F.2d 468", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 413639 ], "opinion_index": 1, "case_paths": [ "/f2d/242/0468-01" ] }, { "cite": "46 N.E. 197", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1896, "opinion_index": 1 }, { "cite": "165 Ill. 124", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3103885 ], "weight": 2, "year": 1896, "pin_cites": [ { "page": "131" } ], "opinion_index": 1, "case_paths": [ "/ill/165/0124-01" ] }, { "cite": "26 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1951, "opinion_index": 1 }, { "cite": "304 Ill. App. 117", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3308664 ], "year": 1951, "opinion_index": 1, "case_paths": [ "/ill-app/304/0117-01" ] }, { "cite": "35 N.E. 624", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1940, "pin_cites": [ { "page": "625" } ], "opinion_index": 1 }, { "cite": "147 Ill. 570", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 833782 ], "weight": 2, "year": 1940, "pin_cites": [ { "page": "573" } ], "opinion_index": 1, "case_paths": [ "/ill/147/0570-01" ] }, { "cite": "52 Minn. L. Rev. 198", "category": "journals:journal", "reporter": "Minn. L. Rev.", "year": 1967, "pin_cites": [ { "page": "220" } ], "opinion_index": 1 }, { "cite": "98 L. Ed. 520", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "pin_cites": [ { "page": "525" } ], "opinion_index": 1 }, { "cite": "347 U.S. 81", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299407 ], "weight": 4, "pin_cites": [ { "page": "85" }, { "page": "370" } ], "opinion_index": 1, "case_paths": [ "/us/347/0081-01" ] }, { "cite": "103 S. Ct. 2132", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 11299258, 6128451 ], "opinion_index": 1, "case_paths": [ "/us/461/0677-01", "/br/29/2132-01" ] }, { "cite": "461 U.S. 677", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299258 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/us/461/0677-01" ] }, { "cite": "363 U.S. 509", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165941 ], "weight": 3, "year": 1983, "opinion_index": 1, "case_paths": [ "/us/363/0509-01" ] }, { "cite": "22 N.E. 533", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "pin_cites": [ { "page": "535" } ], "opinion_index": 1 }, { "cite": "130 Ill. 102", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 12121828 ], "weight": 2, "pin_cites": [ { "page": "109-10" } ], "opinion_index": 1, "case_paths": [ "/ill/130/0102-01" ] } ], "analysis": { "cardinality": 874, "char_count": 21653, "ocr_confidence": 0.762, "pagerank": { "raw": 4.548627546539126e-08, "percentile": 0.2850411356028865 }, "sha256": "63dda8d2a587981078f907db34476a4318ee7240521f7284f46c6e1aafca4cd9", "simhash": "1:e37f6c10cfc24596", "word_count": 3670 }, "last_updated": "2023-07-14T19:26:11.266607+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF JAMES EDWARD BROOKS, Deceased (The United States of America, Appellant; Dorothy Moore, Ex'r of the Estate of James Edward Brooks, Appellee)." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nThe United States appeals from a judgment entered by the circuit court of Jackson County in a proceeding brought by the executrix of the estate of James Edward Brooks to obtain direction concerning competing claims of various creditors of the estate. The circuit court held, among other things, that the surviving spouse\u2019s and children\u2019s awards granted by sections 15 \u2014 1 and 15 \u2014 2 of the Illinois Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 110\u00bd, pars. 15 \u2014 1 and 15 \u2014 2) take priority over claims of the United States for unpaid taxes owed by the decedent and assessed before his death. For the reasons which follow, we affirm the judgment of the circuit court.\nSection 6321 of the Internal Revenue Code of 1954 (26 U.S.C. sec. 6321 (1982)) provides that, if any person liable to pay Federal tax refuses to do so after demand, the amount owed \u201cshall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.\u201d Section 18 \u2014 10 of the Probate Act of 1975, however, sets forth a classification scheme in which debts due from an estate to the United States do not have first priority:\n\u201cAll claims against the estate of a decedent are divided into classes in the manner following:\n1st: Funeral expenses and expenses of administration.\n2nd: The surviving spouse\u2019s or child\u2019s award.\n3rd: Debts due the United States.\n* * *\n7th: All other claims.\u201d (Ill. Rev. Stat. 1983, ch. 110\u00bd, par. 18-10.)\nSection 18 \u2014 13 of the Probate Act (Ill. Rev. Stat. 1983, ch. 110\u00bd, par. 18 \u2014 13) directs the representative of the estate to pay claims against the estate in the order of their classification.\nOn appeal in this case, the United States contends that the trial court erred in not giving its claim for taxes priority over the statutory spouse\u2019s and child\u2019s awards. In Smith v. Commissioner of Internal Revenue (1931), 24 B.T.A. 807, 811, the Board of Tax Appeals had occasion to address the question presented here:\n\u201cThe priority of Federal taxes given by statute, section 3466, R.S. (see Price v. United States, 269 U.S. 492) in any event, is over debts, not payments required by law to be made to a widow as her statutory allowance out of the estate of her deceased husband. Such statutory allowance is not a debt and the payment thereof therefore is not a payment of a debt. Under the Illinois law this takes priority over all debts except funeral expenses. See par. 75, ch. 3, Callaghan\u2019s Illinois Statutes Annotated, vol. 1, p. 410. The priority of the United States on account of taxes extends to any assets or funds available for the payment of debts. United States v. Johnston, 5 Fed. (2d) 951. The widow\u2019s allowance not being available for the payment of debts, we do not think the Government\u2019s claim for taxes has priority over it.\u201d\nWe find the reasoning of Smith to be persuasive, and adopt it here. We note that Smith has subsequently been cited with approval. (Schwartz v. Commissioner of Internal Revenue (8th Cir. 1977), 560 F.2d 311, 314-15 n.7.) We also note that, while the United States argues the existence of its lien in this court, the record reveals no attempt by the United States to enforce its rights under the asserted lien claims. (See 26 U.S.C. sec. 7403 (1982).) Under these circumstances, where the government has thus far elected to proceed as a creditor of the estate and not as a lienholder, we see no basis for distinguishing this case from Smith, and no need to decide whether, should the United States at some point attempt to enforce its purported lien, such lien would have priority over the awards at' issue here.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nWELCH, J., concurs.", "type": "majority", "author": "JUSTICE HARRISON" }, { "text": "PRESIDING JUSTICE JONES,\ndissenting:\nI respectfully dissent.\nThe majority opinion\n(1) fails to consider the only issue presented by this appeal, which is whether liens (not claims) for taxes have priority over the surviving spouse\u2019s and children\u2019s awards in the settlement of the decedent\u2019s estate;\n(2) fails to discuss the applicability or primacy of Federal law;\n(3) disregards the option of a secured creditor to proceed as a creditor against an estate and still secure the benefit of its paramount claim to property of the estate;\n(4) fails to cite, follow or seek to distinguish a case of the Illinois Supreme Court that directly bears on the issue involved, King v. Goodwin (1889), 130 Ill. 102, 22 N.E. 533; and\n(5) places principal reliance upon a case, Smith v. Commissioner of Internal Revenue, that did not involve tax liens and that was decided, not under the tax lien statute here at issue, but under another statute dealing with the priority of non-lien claims of the United States in the administration of insolvent estates (sec. 3466, Ill. Rev. Stat., now 31 U.S.C. sec. 3713 (1982)).\nI have some difficulty recognizing the opinion of the majority as being a disposition of the issue in this case. Furthermore, it is a case of first impression and presents an issue of importance in the settlement of decedents\u2019 estates. Accordingly, I have chosen to go beyond the confines of an ordinary dissent in order to give what I believe to be a fair statement of the issue and what I believe is its proper resolution.\nThe decedent, James Edward Brooks, died on April 26, 1983, survived by a widow and two minor children. Prior to the decedent\u2019s death, the Internal Revenue Service had made assessments against him for unpaid withholding and income taxes in the amount of $71,335.25. Notice of lien as to these taxes had been filed before the decedent\u2019s death, except for withholding taxes in the amount of $1,592.72, notice of lien of which was not filed until May 25, 1983. Additional taxes were assessed against the decedent after his death in the amount of $18,232.79.\nDuring the administration of the estate, numerous claims were filed against the estate by creditors of the decedent. On July 29, 1983, the United States filed a claim for the tax liabilities assessed against the decedent during his lifetime in the amount of $71,335.25, plus interest. On March 5, 1984, the United States filed an additional claim in the amount of $18,232.79, plus interest, for taxes assessed after the decedent\u2019s death. The United States, through the Department of Health and Human Services, also filed a claim for Medicare overpayments in the amount of $584.70.\nIn addition to these claims against the estate, a petition for child\u2019s award was filed by the decedent\u2019s two minor children not residing with the widow. The trial court, upon a hearing, awarded the statutory minimum of $2,000 to each of the minor children. On November 22, 1983, the decedent\u2019s widow filed an application for surviving spouse\u2019s award. The trial court subsequently allowed claims in an amount in excess of $100,000 and fixed the widow\u2019s award at the statutory minimum of $10,000, but reserved ruling on the classification of the claims and the family awards.\nThe United States then filed a motion for summary judgment in which, relying upon sections 6321 and 6323 of the Internal Revenue Code of 1954 (26 U.S.C. secs. 6321, 6323 (1982)), it claimed priority over the family awards and the claims of other creditors to the extent that it had tax liens against the decedent that arose prior to his death. The government agreed, however, that \u201creasonable administration expenses may be paid ahead of tax claims.\u201d\nThe trial court, in a letter dated April 5, 1984, advised counsel of its decision that priority of the competing claims was controlled by the classification scheme of section 18 \u2014 10 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 110\u00bd, par. 18 \u2014 10). The court stated its conclusion that this classification scheme did not violate the Federal constitution, statutes or regulations of the Internal Revenue Service but was compatible with them. The court reasoned:\n\u201cAlthough debts due to the United States *** have priority over all other debts of the decedent incurred during his lifetime, funeral expenses and expenses of administration, surviving spouse\u2019s award and children\u2019s awards are not debts of the decedent but are statutory charges against the estate. These charges arise after the death of the decedent and must be given priority over all of the prior debts of the decedent incurred during his lifetime.\u201d\nThe court ruled, therefore, that the surviving spouse\u2019s and children\u2019s awards be classified as \u201csecond class\u201d claims and that all the Federal tax claims be classified as \u201cthird class\u201d claims. The court also directed that funeral expenses and costs of administration be allowed as \u201cfirst class\u201d claims. All other claims were either disallowed or allowed as \u201cseventh class\u201d claims.\nOn appeal the United States takes issue only with that portion of the court\u2019s judgment providing for payment of the surviving spouse\u2019s and children\u2019s awards before payment of Federal tax liabilities for which it had liens that arose prior to the decedent\u2019s death. It is the government\u2019s contention that these liens against the decedent\u2019s property were not divested by his death but continued after his death and that the property thus passed into the decedent\u2019s estate subject to the liens. Since, the government asserts, the priority of Federal tax liens is determined by Federal rather than State law, and since the Federal tax lien statute makes no provision for priority of State-created family awards, its tax liens here were entitled to priority of payment over the spouse\u2019s and children\u2019s awards in the administration of the decedent\u2019s estate. While the government notes further that its tax liens would also be prior to payment of funeral and administration expenses, the government effectively conceded this point in the trial court and makes no issue of it on appeal.\nThe Federal tax lien statute (26 U.S.C. sec. 6321 (1982)), set forth in the majority opinion, provides for the imposition of a lien upon all property of a taxpayer for failure to pay taxes after demand. The tax lien arises at the time assessment is made (see 26 U.S.C. secs. 6201 through 6203 (1982)) and continues \u201cuntil the liability for the amount so assessed *** is satisfied or becomes unenforceable by reason of lapse of time.\u201d (26 U.S.C. sec. 6322 (1982).) Section 6323 (26 U.S.C. sec. 6323 (1982)), governing the validity and priority of such a lien against certain persons, requires that notice of the tax lien be filed before it shall be valid against purchasers, holders of security interests, mechanic\u2019s lienors and judgment lien creditors. While, under section 6323, other State-created interests are given \u201csuperpriority\u201d status even though notice of the tax lien has been filed, none of those interests are at issue here, and no exception is made for State-created family awards.\nIt is undisputed in this appeal that the decedent\u2019s estate is insufficient to pay the claims of all parties. Despite the trial court\u2019s finding, therefore, that there was no conflict between the classification scheme of section 18 \u2014 10 and Federal statute, this conclusion is erroneous to the extent that the court\u2019s ruling would allow for payment of the surviving spouse\u2019s and children\u2019s awards out of estate assets subject to the government\u2019s Federal tax liens. Since, by virtue of section 6321, the government had liens against all the decedent\u2019s property except that exempted by statute (see 26 U.S.C. sec. 6334 (1982)), it is necessary to determine the priority of such liens vis-a-vis the family awards that would be satisfied out of the same property (see Ill. Rev. Stat. 1983, ch. 110\u00bd, par. 15 \u2014 4).\nIt is well settled that the priority of Federal tax liens is determined by Federal rather than State law. (Aquilino v. United States (1960), 363 U.S. 509, 4 L. Ed. 2d 1365, 80 S. Ct. 1277; see United States v. Rodgers (1983), 461 U.S. 677, 76 L. Ed. 2d 236, 103 S. Ct. 2132.) Notwithstanding the exceptions set forth in section 6323 regarding the priority of certain interests vis-a-vis a Federal tax lien, where the statute does not specify otherwise, the priority of such a lien is governed by the Federal common law rule that \u201cthe first in time is the first in right.\u201d (United States v. City of New Britain (1954), 347 U.S. 81, 85, 98 L. Ed. 520, 525, 74 S. Ct. 367, 370.) (See Note, Choateness & the 1966 Federal Tax Lien Act, 52 Minn. L. Rev. 198, 220 (1967).) Under this rule, a claim competing against a Federal tax lien prevails only if it became choate against the taxpayer\u2019s property before the Federal tax lien attached. United States v. City of New Britain (1954), 347 U.S. 81, 98 L. Ed. 520, 74 S. Ct. 367.\nAs noted above, section 6323 contains no exception for State-created family awards such as those here involved, and the priority of these claims is thus governed by the Federal common law rule of priority in time. Since, as the trial court observed, the surviving spouse\u2019s and children\u2019s awards, as charges against the estate, arose only after the death of the decedent, they could not be said to be prior in time to the Federal tax liens that were assessed before the decedent\u2019s death. (Cf. Rev. Rul. 79 \u2014 399, 1979 \u2014 2 Cum. Bull. 398 (spouse\u2019s dower or curtesy interest existing under State law from date of marriage had priority over Federal tax lien that arose after marriage).) Under the controlling Federal rule, then, the previously existing Federal tax liens would be superior to the claims of the surviving spouse and children that arose under State law upon the decedent\u2019s death, and the classification scheme of section 18 \u2014 10 cannot be applied to defeat this priority.\nWhile the majority here concludes that the government, by filing its claim against the estate, elected to proceed as an estate claimant under section 18 \u2014 10 and is precluded from asserting its priority as a lienholder, there is no basis for this position because the government\u2019s rights as lienholder were not affected by its filing an estate claim. A secured creditor, under Illinois law, may file his claim against the estate of a decedent debtor or resort to his security, or he may pursue both remedies. (Furness v. Union National Bank (1893), 147 Ill. 570, 35 N.E. 624; Baxter v. Continental Illinois National Bank & Trust Co. (1940), 304 Ill. App. 117, 26 N.E.2d 179; see 4 W. James, Illinois Probate Law & Practice sec. 192.7 (1951); 19 Ill. L. & Prac. Executors & Administrators sec. 163, at 136 (1956).) This is so because the creditor\u2019s \u201cdouble right\u201d to sue on the debt itself or enforce his security \u201c[remains] the same if \u2018the debtor dies and dies insolvent.\u2019 \u201d (Furness v. Union National Bank (1893), 147 Ill. 570, 573, 35 N.E. 624, 625.) Since the secured creditor, then, could realize from his security without filing a claim in probate (Waughop v. Bartlett (1896), 165 Ill. 124, 46 N.E. 197), he does not forfeit his superior claim to the secured assets by filing a claim against the estate. See Waughop v. Bartlett (1896), 165 Ill. 124, 131, 46 N.E. 197 (where property has been mortgaged, pledged as security on a debt, or levied upon in execution of a judgment during lifetime of decedent, executor takes property \u201csubject to all the liens existing and in the same situation [as] it was held by his testatrix. Her death could not in any way affect the lien ***, nor would the fact of the [creditor\u2019s] filing or neglecting to file a claim in the probate court in any manner affect it\u201d).\nThere is likewise no merit in the rationale of the majority that, while debts due the United States have priority over other debts of the decedent incurred during his lifetime, funeral and administration expenses and family awards are debts, not of the decedent, but of the estate and should be paid first as statutory charges against the estate. A lien against a debtor\u2019s property is not divested by his death but continues in the property to which it attached. (People v. Hoper (7th Cir. 1957), 242 F.2d 468.) It is the rule in Illinois, moreover, that property subject to a lien does not become a part of the assets of a decedent\u2019s estate until the creditor\u2019s lien upon it is discharged. (Furness v. Union National Bank; In re Estate of Philp (1983), 114 Ill. App. 3d 107, 448 N.E.2d 535; In re Estate of Yealick (1979), 69 Ill. App. 3d 353, 387 N.E.2d 399.) Thus, under this rule, the assets subject to the government\u2019s liens would not be available for payment of the surviving spouse\u2019s and children\u2019s awards until the government\u2019s liens had been satisfied.\nThe Illinois Supreme Court, in King v. Goodwin, applied this rule in the context of a claim for widow\u2019s award where the assets of the estate were encumbered by a lien existing at the decedent\u2019s death. The court stated:\n\u201c \u2018The widow\u2019s claim to her award is against the estate of her deceased husband. [Citation.] If there is no estate, she has nothing to rely on for the payment of the award. If the estate is encumbered by a valid lien, the award does not set aside the lien. She only has a claim on so much as may be left after satisfying the lien. In this case there is no estate to pay the widow\u2019s award until the lien acquired by the creditor\u2019s bill is discharged.\u2019 \u201d (King v. Goodwin (1889), 130 Ill. 102, 109-10, 22 N.E. 533, 535.)\nSee also 4 W. James, Illinois Probate Law and Practice, sec. 178.7 at 302, sec. 178.12 at 305-06 (1951); 19 Ill. L. & Prac. Executors & Administrators sec. 134, at 111-12 (1956).\nWhile no other Illinois case involving the priority of previously existing liens over a widow\u2019s claim for surviving spouse\u2019s award has been found, courts in other jurisdictions have similarly held that family awards cannot be made out of property that is subject to liens or other vested rights of creditors to the prejudice of those rights. See 31 Am. Jur. 2d Executors & Administrators sec. 324, at 163, sec. 328, at 165 (1967); Annot., 108 A.L.R. 773 (1937); cf. Davis v. Birdsong (5th Cir. 1960), 275 F.2d 113 (property awarded to widow for year\u2019s support under State statute not exempt from levy for payment of income taxes owed by decedent); Hammett v. Citizens & Southern National Bank (1973), 231 Ga. 400, 202 S.E.2d 66 (award of real estate to debtor\u2019s widow for year\u2019s support not superior to bank\u2019s claim to such property as secured creditor).\nThe instant case is distinguishable from Smith v. Commissioner of Internal Revenue, relied upon by the majority, because that case did not involve tax liens that arose before the decedent\u2019s death but was concerned solely with the priority of claims of the government for which it did not have liens. The court in that case did not discuss the Federal tax lien statute at issue here but based its decision upon a Federal statute governing payment of debts due the United States in the administration of insolvent estates (see 31 U.S.C. sec. 3713 (1982)). Thus, in Smith, family awards were afforded priority of payment over debts due the United States, but no question of a prior tax lien was involved, and the court\u2019s holding was premised solely upon the government\u2019s status as a creditor of the decedent. See also Rev. Rul. 80 \u2014 112, 1980 \u2014 1 Cum. Bull. 306, 307: \u201c[C]laims against the decedent\u2019s estate for funeral and administrative expenses and the family allowance have priority over federal tax claims of the government for which it has no lien.\u201d (Emphasis added.)\nIn a similar case, Postmaster General v. Robbins (D. Me. 1829), 19 F. Cas. 1126, the court held that the priority afforded debts due the United States over other debts of the decedent did not extend to payment of the widow\u2019s award, as family allowances were debts, not of the decedent, but of the estate and would be paid out of the estate before estate assets were applied toward payment of the decedent\u2019s debts. As in Smith, however, the government\u2019s claim in Robbins was not premised on a previously existing tax lien, and, indeed, the court recognized that a different result might obtain where estate assets were subject to such a lien. \u201cThe [widow\u2019s] right in the personal estate attaches itself only to that of which [the decedent] was possessed at the time of his death, and perhaps, *** [is] subject to all liens subsisting at that time.\u201d 19 F. Cas. 1126,1127.\nSince, in the instant case, the government made no claim of priority over the family awards as to tax debts assessed after the decedent\u2019s death, the instant case is distinguishable from the Smith and Robbins cases (see also In re Carl\u2019s Estate (1950), 43 Ohio Op. 52, 94 N.E.2d 239), and the majority\u2019s reliance upon Smith is misplaced. The majority has chosen to ignore the presence of the government\u2019s liens, making no distinction between these liens and claims for which the government had no liens. For the reasons stated, I would hold that the government is entitled to priority for the payment of tax liens arising before the decedent\u2019s death, and I accordingly dissent from the opinion of the majority.", "type": "dissent", "author": "PRESIDING JUSTICE JONES," } ], "attorneys": [ "Frederick J. Hess, United States Attorney, and Michael Carr, Assistant United States Attorney, both of East St. Louis, and Glenn L. Archer, Jr., Assistant Attorney General, of Washington, D.C., for appellant United States of America.", "Michael L. Paup, William E. Estabrook, and Thomas A. Gick, all of Department of Justice, of Washington, D.C., for appellant United States of America.", "Don E. Prosser, of Gilbert, Kimmel, Hoffman & Prosser, Ltd., of Carbondale, for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF JAMES EDWARD BROOKS, Deceased (The United States of America, Appellant; Dorothy Moore, Ex'r of the Estate of James Edward Brooks, Appellee).\nFifth District\nNo. 5-84-0277\nOpinion filed June 14, 1985.\nJONES, P.J., dissenting.\nFrederick J. Hess, United States Attorney, and Michael Carr, Assistant United States Attorney, both of East St. Louis, and Glenn L. Archer, Jr., Assistant Attorney General, of Washington, D.C., for appellant United States of America.\nMichael L. Paup, William E. Estabrook, and Thomas A. Gick, all of Department of Justice, of Washington, D.C., for appellant United States of America.\nDon E. Prosser, of Gilbert, Kimmel, Hoffman & Prosser, Ltd., of Carbondale, for appellee." }, "file_name": "0993-01", "first_page_order": 1015, "last_page_order": 1024 }