{
  "id": 5411894,
  "name": "In re Estate of Eugene E. Barton.-(Ethel M. Barton, Adm'r to Collect of the Estate of Eugene Barton, Deceased, Appellant, v. Raymond Langen, Ex'r of the Will of Eugene E. Barton, Deceased, Objector-Appellee.)",
  "name_abbreviation": "Barton v. Langen",
  "decision_date": "1975-04-23",
  "docket_number": "No. 59552",
  "first_page": "65",
  "last_page": "67",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
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    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "65 Ill.App.2d 280",
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  "analysis": {
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  "last_updated": "2023-07-14T21:36:05.902616+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "In re Estate of Eugene E. Barton.\u2014(Ethel M. Barton, Adm\u2019r to Collect of the Estate of Eugene Barton, Deceased, Appellant, v. Raymond Langen, Ex\u2019r of the Will of Eugene E. Barton, Deceased, Objector-Appellee.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE BURMAN\ndelivered the opinion of the court:\nThis is an appeal from an order of the probate division of the circuit court sustaining objections to tire final account of Ethel M. Barton, administrator to collect of the estate of Eugene Barton, deceased.\nEugene Barton died testate on June 9, 1972. His will dated April 12, 1957, named his first wife, Gwendolyn \u201cBunny\u201d Barton as executrix, and in the event she predeceased him appointed Raymond O. Langen, his br\u00f3ther-in-law, in her place and stead. In December, 1967, his wife predeceased him. He remarried in June of 1969, and his second wife, Ethel M. Barton, subsequently was declared to be his widow and only heir at law. Upon petitioning the court for letters of administration to collect, the same were issued to Ethel M. Barton on July 5, 1972. On April 25, 1973, she renounced the will.\nEthel M. Barton filed a final account as administrator to collect on July 10, 1973, showing disbursements of $5,000 for her statutory Widow\u2019s Award, $250 for her fee as administrator to collect and $750 for her attorney\u2019s fees. Immediately thereafter, Raymond O. Langen, executor, filed an objection to the final account stating that the widow\u2019s award had not been approved and was therefore premature, that the fees for her as administrator and for her attorney were premature and excessive, and that certain bonds held by her and belonging to Gerald Barton should be transferred instan ter to the executor. On July 10, 1973, the court entered an order in which it was held that the objection to the widow\u2019s award was well founded as being premature and that the fees enumerated were excessive. The court further ordered tire administrator to collect to turn over bonds belonging to Gerald Barton to the executor and to transfer all assets to the executor. Ethel M. Barton appeals from the issuance of this order.\nIn her brief appellant stresses several instances wherein the executor has breached his statutory duty and fiduciary responsibility to her, and argues that under such circumstances, she should not be forced to rely upon the executor for her statutory widow\u2019s award. She further points out that under section 202 of the Probate Act, the widow\u2019s award is second in priority only to funeral expenses and expenses of the administration of the estate. (Ill. Rev. Stat. 1971, ch. 3, par. 202.) Accordingly, she argues that since the funeral expenses have been paid, and since there have been no expenses of administration other than those she personally incurred as administrator to collect, her statutory minimum widow\u2019s award of $5,000 cannot be defeated legally. Finally, appellant urges that the fees as shown in her final account are not subject to arbitrary dis-allowance, that the matter is one governed by statute, and that the instant fees conform to the statutory requirements.\nThe appellee, executor, contends that the order of July 10, 1973, from which appellant appeals is not a final order as required by Supreme Court Rule 301. The Rule provides in relevant part:\n\u201cEvery final judgment of a circuit court in a civil case is appeal-able as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional * * (Ill. Rev. Stat. 1971, ch. 110A, par. 301.)\n.We are in accord with the executor that the order appealed from does not adjudicate any rights between the parties, and the appeal therefore is premature.\nTo be final and appealable, an order must terminate the litigation between the parties on the merits of the controversy. (In re Estate of Querciagrossa, 65 Ill.App.2d 280, 213 N.E.2d 13.) Clearly, the order in the case at bar is not final. The court neither allowed nor disallowed appellant\u2019s request for a widow\u2019s award, and we emphasize that she remains free to pursue her claim. The court merely held that her request was premature and that she must follow the usual court procedure as established by statute to secure her rights. We note further that although the court held the requested fees to be excessive, there was no final order fixing the amount. The matter of assessing fees rests within the sound discretion of the court, and in the case at bar tire judge properly determined that such an exercise of authority was not possible without the filing of a proper petition. (See, e.g., In re Estate of Klappa, 18 Ill. App.2d 501,152 N.E.2d 754.) An order sustaining or overruling objections to a final account which contemplates future judicial action or discretion is not final. In re Estate of Moses, 13 Ill.App.3d 137, 300 N.E.2d 473.\nAppeal dismissed.\nADESKO and JOHNSON, JJ., concurring.",
        "type": "majority",
        "author": "Mr. JUSTICE BURMAN"
      }
    ],
    "attorneys": [
      "Thomas F. Pierce, of Chicago, for appellant.",
      "Etta J. Cole, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "In re Estate of Eugene E. Barton.\u2014(Ethel M. Barton, Adm\u2019r to Collect of the Estate of Eugene Barton, Deceased, Appellant, v. Raymond Langen, Ex\u2019r of the Will of Eugene E. Barton, Deceased, Objector-Appellee.)\n(No. 59552;\nFirst District (4th Division)\nApril 23, 1975.\nThomas F. Pierce, of Chicago, for appellant.\nEtta J. Cole, of Chicago, for appellee."
  },
  "file_name": "0065-01",
  "first_page_order": 89,
  "last_page_order": 91
}