In Re Estate of Burgeson

532 N.E.2d 825, 125 Ill. 2d 477, 126 Ill. Dec. 954, 1988 Ill. LEXIS 177
CourtIllinois Supreme Court
DecidedDecember 15, 1988
Docket66223
StatusPublished
Cited by34 cases

This text of 532 N.E.2d 825 (In Re Estate of Burgeson) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Burgeson, 532 N.E.2d 825, 125 Ill. 2d 477, 126 Ill. Dec. 954, 1988 Ill. LEXIS 177 (Ill. 1988).

Opinion

JUSTICE RYAN

delivered the opinion of the court:

Patrick T. Murphy, the public guardian for Cook County, filed a petition to vacate portions of two orders entered during probate proceedings in the estate of Zella Burgeson. One such order approved the final account of the executor, including the disbursement of fees to respondent, Sheldon Kirshner, the executor’s attorney. The other order discharged a special administrator who had been appointed by the court upon Murphy’s petition. This order contained a finding that the special administrator had conducted a thorough investigation of allegations of wrongdoing that Murphy had made against Kirshner, and that he had found no impropriety on Kirshner’s part.

These orders were entered on October 18, 1985. Approximately four months later, Murphy, who had not received notice of the entry of the orders, sought to have them vacated pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2— 1401). The circuit court denied the petition on the grounds that Murphy lacked standing and that he failed to exercise due diligence in bringing the petition. The appellate court, with one justice dissenting, affirmed that decision based on the standing issue. (163 Ill. App. 3d 233.) We granted Murphy’s petition for leave to appeal (107 Ill. 2d R. 315).

Zella Burgeson, the deceased, was an elderly woman who lived alone in a Chicago condominium. In May 1982, other residents of her building wrote to John Hounsom, Burgeson’s brother and later executor of her estate, expressing their concern for her welfare. They informed him that Burgeson was growing senile, and was burning food on the stove, leaving the gas ignited and forgetting about it, misplacing her bills and generally becoming unable to take care of her own affairs. The neighbors expressed concern that Burgeson could be taken advantage of by “some unscrupulous person.” John Hounsom resided, and still resides, in Missouri.

Hounsom apparently contacted Sheldon Kirshner, an attorney who had done some legal work for Burgeson in the past. Six months after the letter from Burgeson’s neighbors, Kirshner had her sign a broad power of attorney, giving Kirshner the power to provide for Burgeson’s medical needs, arrange for housekeeping services, pay all her expenses and pay his own fees, all without supervision. Kirshner signed as a witness to the document and notarized it himself.

By 1984 the neighbors were again expressing concern, this time via letters to Kirshner. He had purportedly hired a “companion” for Burgeson, who was to perform housekeeping and other duties. Despite that fact, the neighbors informed Kirshner that Burgeson was wandering in the lobby naked, had urinated in the lobby and that the odors emanating from her apartment were overwhelming. Neighbors who assisted Burgeson back to her apartment discovered that it was in a “shocking” state of disarray — the sink, counter and tables were littered with dirty dishes, garbage containers overflowed, the bathtub was filled with standing dirty water and the toilet had not been cleaned in some time. The letters also pointed out that the other building residents, had been complaining to Kirshner without success for several months.

In July 1984, the police arrested Burgeson’s companion, who had been hired by Kirshner, for attempting to cash an allegedly forged Burgeson check at a Jewel food store. Kirshner later requested that charges be dropped against the companion, who promptly disappeared and has not been heard from since. Over a two-month period prior to her arrest and disappearance, the companion allegedly took approximately $4,000 from Burgeson’s accounts by cashing various checks. The record does not indicate that Kirshner took any steps to recover any of that money or property.

One of the officers who arrested the companion then went to Burgeson’s home. She testified that the place was filthy, and that pornographic literature and sexual devices — presumably belonging to the companion — were found in the bedroom. Burgeson herself was found half-sitting, half-lying on a sofa. She was unkempt and dirty, and her feet were swollen to the point where she could barely walk.

After Burgeson was discovered in this state of neglect, Murphy was appointed as her temporary guardian. Both he and Kirshner then sought to be named plenary guardian. In the guardianship proceedings, Kirshner was represented by attorney John Coleman. Murphy also initiated disciplinary proceedings against Kirshner before the Attorney Registration and Disciplinary Commission (ARDC).

On October 10,1984, during the pendency of the guardianship proceedings, Burgeson died. John Hounsom, her brother, was appointed executor of her estate. Hounsom was also beneficiary of 75% of the estate under the will. Hounsom retained Kirshner as his attorney for the probate proceedings.

Murphy was discharged as temporary guardian after the opening of the decedent’s estate. However, shortly thereafter he filed a petition for the appointment of a special administrator, alleging that Kirshner had taken advantage of Burgeson while she was alive, had charged excessive fees for his services, and had otherwise bilked both Burgeson and her estate. The court allowed the motion and appointed John A. Doyle as independent special administrator. The order of appointment provided that Doyle was “to make a preliminary investigation as to whether there [was] any basis for the Public Guardian’s allegations.”

Less than a month later, the executor and other beneficiaries petitioned the court for removal of the special administrator. They submitted affidavits in support of the petition which were essentially identical and of a fill-in-the-blanks nature. Some of the affidavits were from minor beneficiaries, but the record does not establish that the minors were represented by a guardian ad litem at this or any other stage of the proceedings. The beneficiaries, except for Hounsom, were represented by counsel other than Kirshner.

Based upon this petition, the court ordered the special administrator to refrain from continuing his investigation until further order of the court. At that time, he had spent approximately five hours in the investigation, which consisted mainly of reviewing documents and conferring with the attorneys. It appears that the special administrator never made contact with any of the beneficiaries.

Subsequently, Kirshner petitioned the court to close the estate and approve the final account. In support, the beneficiaries filed another set of affidavits. The executor’s affidavit contained invective and outlandish allegations against Murphy and the police. The other beneficiaries’ affidavits contained numerous claims based upon hearsay. However, all of the affidavits expressed satisfaction with Kirshner, and a desire to see the estate closed. The executor expressed his satisfaction with the legal fees as well. The estate’s assets came to approximately $190,000. To that point, legal fees for Kirshner and Coleman came to roughly $60,000, about $46,000 of which Burgeson incurred prior to her death. The office of the public guardian had also filed a claim against the estate for fees and reimbursement of guardianship expenses. The claim was paid almost one year after it was filed, just prior to the executor’s submission of his final account.

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Cite This Page — Counsel Stack

Bluebook (online)
532 N.E.2d 825, 125 Ill. 2d 477, 126 Ill. Dec. 954, 1988 Ill. LEXIS 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-burgeson-ill-1988.