{
  "id": 5071986,
  "name": "In re ESTATE OF JOHN J. O'BRIEN, Deceased (Rosemary O'Brien, Executor-Appellant, v. Neil F. Hartigan, Attorney General of Illinois, Respondent-Appellee)",
  "name_abbreviation": "O'Brien v. Hartigan",
  "decision_date": "1988-01-29",
  "docket_number": "No. 85-2887",
  "first_page": "285",
  "last_page": "288",
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  "last_updated": "2023-07-14T15:55:23.036295+00:00",
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    "date_added": "2019-08-29",
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    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "In re ESTATE OF JOHN J. O\u2019BRIEN, Deceased (Rosemary O\u2019Brien, Executor-Appellant, v. Neil F. Hartigan, Attorney General of Illinois, Respondent-Appellee)."
    ],
    "opinions": [
      {
        "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nRosemary O\u2019Brien, executor of the estate and sister of John J. O\u2019Brien, appeals from an order removing her as executor of the estate. Ms. O\u2019Brien contends on this appeal that she was wrongfully removed as the executor of her brother\u2019s estate. We affirm the trial court\u2019s order.\nOn January 14, 1980, John J. O\u2019Brien died testate. The residuary clause of hjs will bequeathed the remainder of his estate to a trust of which Ms. O\u2019Brien was named trustee. The net income of the trust was to be divided between Father O\u2019Brien and Ms. O\u2019Brien, the decedent\u2019s brother and sister. Upon the deaths of Father O\u2019Brien and Ms. O\u2019Brien the trust estate was to go to the Society of the Divine Word, a charitable organization.\nOn June 4, 1980, Ms. O\u2019Brien was issued letters of office and in November 1981, she filed an inventory for the estate. In the 1981 inventory Ms. O\u2019Brien stated that at the time of decedent\u2019s death the value of his estate was $350,000. One year later, in response to her attorney\u2019s motion to withdraw as her counsel, Ms. O\u2019Brien stated under oath that the approximate value of the estate was $266,000. Ms. O\u2019Brien also stated that she had difficulty classifying the decedent\u2019s pension proceeds as an asset of the decedent's estate. Despite advice by her counsel that the decedent\u2019s pension proceeds could be legally payable to her only in her capacity as executor, Ms. O\u2019Brien maintained that the proceeds should be paid personally to her. On March 13, 1985, the court on its own motion appointed a special administrator.\nOn March 20, 1985, the Attorney General petitioned to intervene in the estate proceedings and to compel an accounting. The petition asserted that no accounts had been filed, that Ms. O\u2019Brien possessed and personally claimed $75,000 of the decedent\u2019s pension proceeds which allegedly belonged to the decedent\u2019s estate and that Ms. O\u2019Brien incurred $25,000 in penalties for failure to timely file Federal estate tax returns and pay taxes due thereon.\nOn April 16, 1985, the court on its own motion ordered Ms. O\u2019Brien to present and file an accounting. Ms. O\u2019Brien failed to do so. On August 1, 1985, the Attorney General petitioned the court for a citation to remove Ms. O\u2019Brien as executor, for a rule to show cause, and to compel an accounting by Ms. O\u2019Brien. Relying on the same allegations as in the petition to intervene, the Attorney General further alleged that Ms. O\u2019Brien failed to file an account as ordered by the court and that the penalties for failure to timely file and pay Federal taxes had increased by $10,000 to $35,000.\nOn August 1, 1985, the court ordered Ms. O\u2019Brien to show cause on August 28, 1985, why she should not be removed as executor and directed her to produce all the records and documents concerning the estate on August 5, 1985. The court also issued a citation for removal of representative on August 1, 1985. On August 28, 1985, Ms. O\u2019Brien appeared in court in response to the rule to show cause and the citation but she did not file a response or an accounting. After a hearing, the court entered an order removing Ms. O\u2019Brien as executor and appointed the decedent\u2019s brother, Father O\u2019Brien, as the executor.\nSection 23 \u2014 2(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110\u00bd, par. 23 \u2014 2) provides:\n\u201c[0]n the court\u2019s own motion, the court may remove a representative for any of the following causes. If the representative:\n* * *\n(4) wastes or mismanages the estate;\n* * *\n(7) fails to file an inventory or accounting after being ordered by the court to do so;\n* * *\n(9) becomes incapable of or unsuitable for the discharge of his duties ***.\u201d Ill. Rev. Stat. 1985, ch. lHP/a, pars. 23\u2014 2(a)(4), (a)(7), (a)(9).\nIn In re Estate of Chapman (1982), 104 Ill. App. 3d 794, 433 N.E.2d 313, the administrator of the estate wrote checks on the estate account, applied the funds to his personal use but later returned the funds to the estate\u2019s account. Additionally, the administrator filed an inventory in the estate only after he was required to do so because of pleadings filed against him. The trial court ordered the removal of the administrator of the estate. On appeal, in affirming the removal order the court stated:\n\u201cWe are asked to determine whether an administrator can be removed from office who claims that he misunderstood the effect of a power of attorney and thereby withdrew estate funds for personal use but later restored them and who further, after being ordered to do so, filed inventories as required by law.\n*** Letters of office may be revoked only for the reasons stated in the statute. *** Our Probate Act provides that the representative of an estate may be removed for failure to file an inventory or accounting after being ordered by the court to do so. ***\n* * *\nThe trial court did, however, order the removal of the respondent as the representative of both estates on the grounds that he mismanaged the same and had demonstrated that he was unsuitable for the discharge of his duties. Both of these grounds are statutory causes for removal. (See Ill. Rev. Stat. 1979, ch. lHP/a, pars. 23 \u2014 2(a)(4), [a](9).) We agree with the trial court, for it is evident that the respondent *** proceeded to appropriate estate funds to his personal use. *** [T]he funds so appropriated were not promptly restored to the estate but that restoration was made only after he was pressured to do so over a period of months. It required an order of court to compel the filing of inventories ***.\u201d Chapman, 104 Ill. App. 3d at 796-97.\nIn the case at bar, the record reflects that each of the foregoing statutory causes was established for the removal of Ms. O\u2019Brien as executor of her brother\u2019s estate. Ms. O\u2019Brien personally claimed and possessed $75,000 of the decedent\u2019s pension proceeds. She had the opportunity to claim these pension proceeds in the probate court proceedings but she did not do so. Ms. O\u2019Brien had yet another opportunity to claim the pension proceeds in the probate court proceedings when the Attorney General petitioned to intervene and compel an accounting. She again chose not to do so. Ms. O\u2019Brien was aware that there was a conflict as to whether she was entitled to receive the pension proceeds. She had been advised by counsel that the proceeds were payable to her only in her capacity as executor. The decedent\u2019s will did not provide that the decedent\u2019s pension proceeds were personally payable or bequeathed to Ms. O\u2019Brien. Rather than properly have this conflict judicially resolved, Ms. O\u2019Brien chose simply to set aside $75,000 as her own. Ms. O\u2019Brien was also late filing the Federal estate tax returns and thereby incurred $35,000 in penalties for failure to timely file and pay. Ms. O\u2019Brien\u2019s good intentions are not questioned but it is evident that Ms. O\u2019Brien by her actions and inactions mismanaged the decedent\u2019s estate and established that she was unsuitable to discharge her duties as executor. (In re Estate of Chapman (1982), 104 Ill. App. 3d 794, 433 N.E.2d 313.) Furthermore, Ms. O\u2019Brien\u2019s noncompliance with the court\u2019s order to file an accounting amply supports the court\u2019s order removing her as executor. The Probate Act specifically provides that failure to file an accounting when ordered by the court to do so is ground for removal of the executor. Ill. Rev. Stat. 1985, ch. IIOV2, par. 23 \u2014 2(a)(7); In re Estate of Chapman (1982), 104 Ill. App. 3d 794, 796, 433 N.E.2d 313.\nFor the reasons set forth we affirm the trial court\u2019s order removing Ms. O\u2019Brien as the executor.\nAffirmed.\nLORENZ, P.J., and MURRAY, J., concur.",
        "type": "majority",
        "author": "JUSTICE PINCHAM"
      }
    ],
    "attorneys": [
      "Roger S. Gorman, of Elmhurst, for appellant.",
      "Neil F. Hartigan, Attorney General, of Springfield (Floyd D. Perkins, Assistant Attorney General, of Chicago, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "In re ESTATE OF JOHN J. O\u2019BRIEN, Deceased (Rosemary O\u2019Brien, Executor-Appellant, v. Neil F. Hartigan, Attorney General of Illinois, Respondent-Appellee).\nFirst District (5th Division)\nNo. 85-2887\nOpinion filed January 29, 1988.\nRoger S. Gorman, of Elmhurst, for appellant.\nNeil F. Hartigan, Attorney General, of Springfield (Floyd D. Perkins, Assistant Attorney General, of Chicago, of counsel), for appellee."
  },
  "file_name": "0285-01",
  "first_page_order": 307,
  "last_page_order": 310
}