Roth v. Roth

321 N.E.2d 81, 24 Ill. App. 3d 412, 1974 Ill. App. LEXIS 1721
CourtAppellate Court of Illinois
DecidedDecember 12, 1974
DocketNo. 74-52
StatusPublished
Cited by10 cases

This text of 321 N.E.2d 81 (Roth v. Roth) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roth v. Roth, 321 N.E.2d 81, 24 Ill. App. 3d 412, 1974 Ill. App. LEXIS 1721 (Ill. Ct. App. 1974).

Opinion

Mr. JUSTICE STOUDER

delivered the opinion of the court:

Petitioner, Melvin Roth, one of two co-executors of the estate of Edwin Roth, filed his final report and petition for approval thereof and discharge as such co-executor. Beneficiaries of the Edwin Roth estate objected to the final report and its approval but the circuit court of Tazewell County approved the report and discharged the co-executor from which judgment this appeal follows.

Edwin Roth died a resident of Tazewell County, Illinois, on January 17, 1964, leaving as his heirs-at-law his widow, Fannie Roth, and four children. His will was admitted to probate on February 26, 1964, and Melvin and Irene Roth, two of his children, were appointed and qualified as executors. Testator owned an undivided one-half interest in each of two farms, the other one-half interest being owned by his widow. By his will the testator devised his interest in one of the farms to his widow for her life and upon her death to his four children. By his residuary clause the testator left the remainder of his property including his interest in the other farm to his widow.

On March 8, 1971, Fannie Roth died and Irene and Alice Roth were appointed co-executors of her estate. On January 8, 1973, Melvin Roth filed a final report and account in the Edwin Roth Estate with a petition for approval of his final account. Objections to the final report were filed by Melvin Roth’s three sisters, Irene, Alice and Frances and by Irene and Alice in their representative capacities.

The report filed by Melvin Roth in January, 1973, was the only report which he filed concerning his acts and doings since the date of his appointment in 1964. Prior to his father’s death Melvin had been the tenant on the two farms in which his father had an interest and also had farmed two other farms in which his father had no interest. After his father’s death Melvin continued to be the tenant on all four farms without any written lease or approval of the court, and, after his appointment as co-executor, he represented the estate with respect to such farms. Irene, the other co-executor, did not exercise any control of the farms and did nothing as co-executor, claiming she had not been permitted to do so by her brother. It appears that in the operation of the farms by Melvin the transactions were intermingled and not completely segregated. As indicated earlier, the court did approve the co-executor’s final report, and the beneficiaries of the estate have appealed.

The principal assignments of error urged by the objectors on this appeal relate to the contention that the reports filed by the co-executor are insufficient to show the nature and propriety of the transactions which occurred. Before discussing the errors urged by appellants, it will be necessary to consider appellee’s contentions that this appeal should be dismissed first, because the appellants failed to file timely notice of appeal and, second, because the objections to the reports were not timely made in the trial court.

As indicated earlier, Melvin Roth filed his report on January 8, 1973, and the beneficiaries filed their objections on January 27, 1973. These objections were never formally ruled upon, but on August 21, 1973, the co-executor filed a supplemental report. The report and supplemental report were approved on September 7, 1973, after notice and hearing, at which time counsel for the objectors and some of the objectors were present but offered no evidence. On October 1,1973, the objectors moved to vacate the order approving the report and discharging the co-executor. A hearing was had on the motion, testimony was introduced and on November 5, 1973, tire court suspended its previous order approving the report and directed the co-executor to file a supplemental report regarding two general areas included in the report, namely, amounts received from the government as agricultural subsidies and amounts paid to an individual. Thereafter the co-executor filed another supplemental report in accord with the directions of the court and on November 27, 1973, a hearing was had at which time the reports of the co-executor were approved and he was discharged. Notice of appeal was filed on December 6, 1973, and it is the contention of appellee that because the order of November 5, 1973, was a final and appealable order, the notice of appeal filed by appellants on December 6, more than 30 days thereafter, was not timely filed and hence this court has no jurisdiction to consider the appeal.

In support of its contention the appellee refers to Supreme Court Rule. 303(a) (Ill. Rev. Stat. 1971, ch. 110A, par. 303(a)) which provides “* * * the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed e e # within 30 days after the entry of the order disposing of the motion.”

According to appellee, the order of November 5, 1973, disposed of the post-trial motion and therefore the period during which an appeal could properly be filed commenced as of that date. We believe the appellee misapprehends the meaning of the rule, because the disposition referred to must mean a final disposition; otherwise, there is no order “disposing of the motion.” As in this case where the prayer of a post-trial motion is granted, it may be that it does not dispose of the controversy, and whether the order does so dispose of a controversy depends upon the relief sought and granted. The order of November 5 in the instant case by specific provision suspended the previous order approving the reports and discharging the executor. Additionally, the order directed the filing of a supplemental report. Under these circumstances there was no judgment approving the reports and discharging the executor until the judgment of November 27, and, because of the required additional reports, there could have been no final order until such reports had been filed. The theory of requiring appeals only from final judgments is based on the practical considerations that justice is not served by piecemeal appeals, and, further, the review of a judgment which can be affected by future proceedings by the trial court would be of doubtful value. In our view of the order of November 5 it was not a final appealable order, and consequently we conclude the notice of appeal was timely filed with respect to the final order of November 27, 1973.

In their objections filed January 26, 1973, to the co-executor’s initial report, three reasons were specified. The first indicated the report was not accurate because it did not specify the distributive shares of the beneficiaries, the second related to the failure of Irene Roth to approve the report as co-executor and the third referred to property belonging to the estate not accounted for in the report. As indicated, these objections were never formally ruled upon and it appears from the record of the November 5 hearing that the judge had apparently advised the parties of his hope that they would get together and resolve their differences. In any event, a short supplemental report was filed in August which attempted to satisfy the initial objections. At the hearing on September 7, 1973, counsel for the objectors requested a continuance in order to consider the supplemental report, but the motion was denied and the reports were approved without additional formal objections.

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Bluebook (online)
321 N.E.2d 81, 24 Ill. App. 3d 412, 1974 Ill. App. LEXIS 1721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roth-v-roth-illappct-1974.