Benak v. Duffy

No. 3B05B0570
_________________________________________________________________
filed June 7, 2006.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D. 2006
PATRICIA BENAK, MARGARET VAN ) Appeal from the Circuit Court
STEENHUYSE, SHEILA LEONHARDT ) of the 12th Judicial Circuit,
and MARY BRIDGET DUFFY, ) Will County, Illinois,
)
Petitioners-Appellants, )
) No. 04-P-295
v. )
)
WILLIAM DUFFY, individually )
and as Executor of the )
ESTATE OF JOHN E. DUFFY, )
DECEASED, ) Honorable
) Herman S. Haase,
Respondent-Appellee. ) Judge, Presiding.
_________________________________________________________________
JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________
The petitioners, Patricia Benak, Margaret Van Steenhuyse,
Sheila Leonhardt and Mary Bridget Duffy, brought an action to
remove their respondent-brother, William Duffy, as executor of
the estate of their father, John E. Duffy. See 755 ILCS 5/23-
2(a)(9),(10) (West 2002). At the conclusion of the petitioners=
case, the trial court entered a directed verdict in favor of the
respondent. The petitioners appeal.
On appeal, the petitioners claim that the trial court erred
in: (1) relying on People v. Halas, 209 Ill. App. 3d 333, 568
N.E.2d 170 (1991), to direct a verdict for the respondent;
(2) failing to remove the respondent as executor based upon a
conflict of interest that made him incapable and unsuitable to
act as executor; and (3) barring evidence that the respondent=s
co-executor concluded that the respondent had a conflict of
interest that required him to resign.
For the following reasons, we affirm the order of the trial
court directing a verdict in favor of the respondent.
I. FACTS
The record reflects that the decedent, John E. Duffy, died
on April 3, 2004. His heirs and legatees were his second spouse,
Phyllis Duffy, and the seven children from his first marriage,
which included the petitioners and the respondent.
Decedent=s will was admitted to probate on April 14, 2004.
In the will, decedent nominated his brother, Joseph Duffy, and
his son, William J. Duffy, to act as co-executors of the estate.
The petitioners filed an action to remove the respondent,
William J. Duffy, as executor of their father=s estate. See 755
ILCS 5/23-2(a)(9),(10) (West 2002). A hearing on the petition to
remove the respondent as executor was held on July 27, 2005.
At the hearing, Joseph Duffy, a retired attorney, testified
that he was the decedent=s brother. He was co-executor of the
decedent=s estate until he resigned that position in
December 2004. The other co-executor of the estate was the
decedent=s son, William, who remained executor of the estate
2
after Joseph resigned.
Joseph had a close relationship with the decedent. He and
the decedent talked about a financial partnership that decedent
had with respondent. According to Joseph, the decedent and the
respondent had an oral partnership called the Duffy Venture. The
respondent invested money on decedent=s behalf. The decedent
told Joseph that he was very happy with the job that the
respondent was doing with his finances.
At one time, decedent told Joseph that he wanted the
respondent to have the whole partnership upon his death. The
decedent later changed his mind and told Joseph that he wanted
the respondent to have half of the partnership.
Joseph identified plaintiffs= exhibit 1 as a document dated
June 23, 2004. It was an accounting of the partnership assets
that the decedent=s accountant, Jack Rogers, sent to Joseph.
Rogers created the document because Jim Van Steenhuyse, husband
of one of the petitioners, was very concerned that there could be
gift tax and other estate tax problems.
Joseph asked Rogers to contact the respondent and get
information from him regarding the partnership transactions over
the years so that Rogers could create an accounting. After
Joseph received the accounting, he gave it to one of the
petitioners, Peggy Van Steenhuyse.
Joseph identified plaintiffs= exhibit 3, a document dated
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October 6, 2003. The document was entitled ATransfer Between
Fidelity Accounts.@ Decedent=s name was at the top of the
document. Respondent told Joseph that there was an effort to
transfer the Fidelity account into the Duffy Venture before
decedent=s death. However, respondent told Joseph that the
transfer was unsuccessful because the Fidelity account had some
margin aspect to it. To Joseph=s knowledge, decedent did not get
the transfer done before his death.
Joseph then identified plaintiffs= exhibit 4 as a document
signed by him and dated December 27, 2004. The document was an
authorization to transfer the Fidelity account into a checking
account owned by the estate. The value of the account was
$694,536.82. The respondent and Joseph both signed the document.
Although he had already resigned as co-executor, Fidelity would
not release the assets unless Joseph signed the authorization
form.
Joseph testified that the funds in the Fidelity account were
needed to pay the estate taxes which were due in January 2005.
When Joseph signed the document he knew that William claimed one
half of the money in the Fidelity account as his own.
Joseph also referred to a Vanguard account which he believed
contained about $400,0000. That account was in the name of the
Duffy Venture. Half of the proceeds of the Vanguard account were
used to pay estate taxes.
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Joseph explained that exhibit number 6 was a letter dated
August 16, 2004, that he wrote to the decedent=s children. In
the letter, Joseph proposed a settlement among the children which
would allow everyone to receive money from the estate and for the
estate taxes to be paid.
Joseph told the children that he thought that the respondent
should resign as co-executor because he had a conflict of
interest. One of the petitioners= attorneys asked Joseph to read
that portion of the letter into the record. Joseph=s counsel
objected. Ultimately, the trial court sustained the objection on
the ground that Joseph=s statement in the letter was opinion
testimony and that the petitioners did not disclose that Joseph
would be giving opinion testimony.
On cross-examination, Joseph testified that during the time
that he and the respondent served as co-executors he did not
believe that either of them had committed any wrongdoing.
Jack Rogers, a certified public accountant, testified that
he had prepared the decedent=s income tax returns for many years.
However, he did not consider himself the decedent=s principal
tax advisor. He advised the decedent to seek other advice in
connection with his estate.
Rogers felt that the decedent had an income tax problem and
an estate problem that he should have someone else review. The
decedent was not well read on the subject of gift taxes. Rogers
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was not aware of any gifts that would have given rise to a gift
tax return during the decedent=s lifetime when Rogers was
representing him.
Rogers testified about the history of the Duffy Venture and
how the profits were listed on the decedent=s and the respondent=s
income tax returns. In 1999, the decedent told Rogers that he
wanted half of the income to be listed on the respondent=s tax
return. Rogers told the decedent that the only way to do that
would be to form a partnership with the respondent. Therefore,
Rogers filed for and received a partnership number and set up a
partnership called the Duffy Venture. In succeeding years, half
of the income was listed on the decedent=s tax return and half
was listed on the respondent=s return.
Rogers never discussed the terms of the partnership with the
decedent. If the decedent had told Rogers that he had decided to
transfer part of the capital to the respondent, Rogers would have
filed gift tax returns.
After the decedent=s death, Rogers responded to inquiries
from Joseph regarding the decedent=s estate. He tried to obtain
information on the estate and on the partnership. However, his
firm had no information on either because the decedent had
elected to not file a partnership return as an exception to the
IRS code.
Rogers identified exhibit number 1 as a document that he
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sent to Joseph dated June 23, 2004. It was a copy of an
accounting of the partnership activity as Rogers saw it at that
time. With the respondent=s help, Rogers obtained cancelled
checks and was able to track all the draws in order to create the
accounting.
Rogers testified that some of the work noted in the
accounting later turned out to be inaccurate. When he created
the initial accounting, Rogers did not show any money belonging
to the respondent. The accounting showed the capital in the
partnership owned solely by the decedent and with the profits
split equally by the decedent and the respondent. He and
respondent had not yet discussed any of the capital in the Duffy
Venture partnership.
Later, Rogers obtained information which led him to believe
that the information he provided to Joseph earlier may have been
incorrect. Specifically, Rogers obtained the decedent=s pre-
nuptial agreement with his second wife. In that agreement,
fifty percent of the Duffy Venture was listed as belonging to the
respondent. Also, some accounts that were in the partnership as
well as some of the accounts put into the partnership later were
held in joint tenancy with the right of survivorship in the
decedent and the respondent.
Rogers identified exhibit number 9, a document dated
May 5, 2005. The document was a subsequent accounting of the
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partnership at the time of decedent=s death. This document
differed from the first accounting dated June 23, 2004.
In the later accounting, Rogers showed a fifty-fifty split
of the partnership assets between the decedent and the
respondent. Rogers believed that the capital in the Duffy
Venture partnership was owned equally between the decedent and
the respondent based upon: (1) the decedent=s notation to that
effect in his prenuptial agreement; and (2) the Vanguard account
had been held in joint tenancy with the right of survivorship
before it became a partnership account.
With respect to the Vanguard account, Rogers testified that
in 1999, 2000 and 2001, three real estate investments matured
which had previously been held in joint tenancy. When the
investments matured, the proceeds were placed in the partnership.
That accounted for about $700,000 of the partnership capital.
Rogers made the judgment that because those investments were
already in joint tenancy with the right of survivorship, the
contributions to the partnership, which was a fifty percent
partnership, meant that the decedent intended it to be a fifty
percent ownership.
From a pure tax standpoint, Rogers concluded that the
decedent had made gifts of capital to the respondent in the years
1999 through 2003. Therefore, he prepared gift tax returns for
those years and filed them on July 5, 2005. The decedent never
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discussed any gifts with Rogers.
William Duffy testified that at the time of his father=s
death, he was a fifty percent owner in the partnership. He did
not discuss receiving any gifts from his father with anyone. He
received his fifty percent interest from funds that his father
gave him to invest. Although he paid income tax on the gains in
the account, he did not pay any taxes on the capital which he
believed belonged to him. He never told anyone the terms of the
oral partnership. According to William, his father was very
pleased with the job that he did in investing the partnership
money.
At the close of evidence, the trial court held that William
had a conflict of interest as co-executor of the decedent=s
estate. However, the trial court held that according to In re
Estate of Halas, 209 Ill. App. 3d 333, 568 N.E.2d 170 (1991), if
the conflict is approved of or created by the testator, there is
no Aliability@ unless the petitioners can show bad faith.
The trial court held that the decedent created the conflict
when he engaged in an oral partnership with the respondent and
also made respondent co-executor of his estate. Since there was
no showing of bad faith, the court granted the respondent=s
motion for a directed verdict.
II. ANALYSIS
The petitioners first argue that the trial court erred in
9
relying on In re Estate of Halas, 209 Ill. App. 3d 333, 568
N.E.2d 170 (1991) when it directed a verdict in favor of the
respondent.
Specifically, they contend that in this case, unlike in
Halas: (1) the decedent did not expressly waive any conflict;
(2) there was no direct proof that the terms of the oral
partnership gave rise to any conflict; and (3) the decedent did
not contemplate that the respondent would serve as sole executor.
The petitioners also argue that even if the decedent waived any
conflict under Halas, his conduct constituted such an abuse of
discretion that he should be removed as executor. See In re
Estate of Halas, 209 Ill. App. 3d 333, 568 N.E.2d 170 (1991).
Where a conflict of interest is approved or created by the
testator, the executor will not be held liable for his conduct
unless the executor has acted dishonestly or in bad faith, or has
abused his discretion. See In re Estate of Halas, 209 Ill. App.
3d 333, 345, 568 N.E.2d 170, 178 (1991). Where the will approves
the conflict of interest, the burden of proof remains on the
party challenging the executor=s conduct. There is no
presumption against the executor despite the divided loyalty.
Halas, 209 Ill. App. 3d at 345, 568 N.E.2d at 178.
The trial court=s ruling on a directed verdict will not be
reversed unless it is against the manifest weight of the
evidence. Hemken v. First National Bank, 76 Ill. App. 3d 23, 394
10
N.E.2d 868 (1979).
A. In re Estate of Halas
In order to fully address the petitioners= first issue we
will review the case of In re Estate of Halas, 209 Ill. App. 3d
333, 568 N.E.2d 170 (1991).
In In re Estate of Halas, 209 Ill. App. 3d 333, 568 N.E.2d
170 (1991), the petitioner, a successor executor of the estate of
George Halas, Jr., brought an action against the estate of the
former executor, George Halas, Sr., alleging that Halas, Sr.,
breached his fiduciary duties while acting as executor of his
son=s estate and trustee of two testamentary trusts. Halas, 209
Ill. App. 3d at 336, 568 N.E.2d at 173.
The complaint alleged that Halas, Sr., breached his
fiduciary duties by: (1) failing to protect the interests of the
beneficiaries during the reorganization of the Chicago Bears
Football Club; and (2) failing to give the beneficiaries notice
of the reorganization. Halas, 209 Ill. App. 3d at 336, 568
N.E.2d at 173.
In his will, Halas, Jr., appointed his father executor of
his estate and trustee of his children=s trusts. Halas, 209 Ill.
App. 3d at 337, 568 N.E.2d at 173. Halas, Jr., gave his father
the authority to invest and retain the Bears= stock and absolved
him of any liability for diminution in value of the stock. He
also authorized his father to take any such action without court
11
approval and Asubject to his or her duty to act fairly, his or
her actions in these respects shall be binding and conclusive
upon all of the beneficiaries hereunder as though no such
relationship or possible conflict of interest existed.@ Halas,
209 Ill. App. 3d at 338-9, 568 N.E.2d at 173.
The trial court held that Halas, Sr., breached his fiduciary
duty to the beneficiaries by failing to give notice of the
reorganization to the guardian ad litem in violation of a court
order. Halas, 209 Ill. App. 3d at 340, 568 N.E.2d at 175.
The trial court made findings of fact regarding Halas Sr.=s
conflicting interests, without considering that his duty to
undivided loyalty had been waived in his son=s will. Halas, 209
Ill. App. 3d at 345, 568 N.E.2d at 178-79. Nevertheless, the
trial court indicated that Halas Sr.=s participation in the
reorganization was motivated by Abenevolent intentions.@ Halas,
209 Ill. App. 3d 345, 568 N.E.2d at 178-79.
After a hearing, the trial court held that the petitioner
failed to prove damages and therefore awarded him one dollar in
nominal damages. Halas, 209 Ill. App. 3d 344, 568 N.E.2d at 177.
On review, the appellate court held that Halas, Sr., did not
act in bad faith or abuse his discretion during the
reorganization. Halas, 209 Ill. App. 3d 346, 568 N.E.2d at 179.
In so doing, the appellate court held that Halas, Jr.=s will
expressly waived the duty of undivided loyalty. Halas, 209 Ill.
12
App. 3d at 345, 568 N.E.2d at 178.
More important, the appellate court also held that even
absent the express waiver, it was clear that Halas, Jr.,
authorized his father to occupy conflicting positions since he
appointed him trustee, a position that Halas, Jr., had to realize
might come into conflict with his father=s duties and desires as
shareholder of the Bears. Halas, 209 Ill. App. 3d at 345, 568
N.E.2d at 178.
However, the appellate court agreed with the trial court
that Halas, Sr., had breached his fiduciary duty in failing to
give notice to the beneficiaries about the reorganization in
violation of court order. Halas, 209 Ill. App. 3d at 347, 568
N.E.2d at 180. It also found that the award of one dollar in
nominal damages to the petitioner was not against the manifest
weight of the evidence. Halas, 209 Ill. App. 3d at 351, 568
N.E.2d at 182.
1. Express Waiver of Conflict
The petitioners argue that Halas is inapposite to this case
because, unlike in Halas, the decedent here did not expressly
waive any conflict of interest. See In re Estate of Halas, 209
Ill. App. 3d 333, 568 N.E.2d 170 (1991). We disagree with the
petitioners that Halas is inapposite to the instant case. See In
re Estate of Halas, 209 Ill. App. 3d 333, 568 N.E.2d 170 (1991).
13
The court in Halas held that even absent the express waiver
in Halas Jr.=s will, it was clear that Halas, Jr., authorized his
father to occupy conflicting positions since he appointed him
trustee, a position that Halas, Jr., had to realize might come
into conflict with his father=s duties and desires as shareholder
of the Bears. Halas, 209 Ill. App. 3d at 345, 568 N.E.2d at 178.
Here, the decedent made no express waiver of any conflict of
interest in his will. However, like in the Halas case, the
decedent authorized his son, the respondent, to occupy
conflicting positions by appointing him co-executor of his estate
when he was involved in a financial partnership with him. See
Halas, 209 Ill. App. 3d 333, 568 N.E.2d 170 (1991).
The decedent=s decision to appoint the respondent
co-executor under such circumstances is sufficient evidence that
the decedent approved of the conflict of interest.
2. Direct Proof of Conflict of Interest
Next, the petitioners argue that in this case, unlike in
Halas, there is no direct proof that the terms of the oral
partnership gave rise to any conflict. See In re Estate of
Halas, 209 Ill. App. 3d 333, 568 N.E.2d 170 (1991). They claim
that the conflict here was created by the respondent after the
decedent=s death. Therefore, they contend, no inference can be
made that the decedent sanctioned the respondent=s conflict.
We are not persuaded. Rogers testified that in 1999, he
14
filed for and received a partnership number and set up a
partnership called the Duffy Venture. After that time, the
decedent and the respondent were each responsible for half the
taxes on the profits of the Duffy Venture. Even without any
other details of the partnership, this is direct proof that a
conflict of interest existed between the respondent=s role of co-
executor of the decedent=s estate and his partnership status in
the Duffy Venture. It was also sufficient evidence that the
decedent sanctioned such a conflict of interest.
The petitioners repeatedly argue that the conflict of
interest between the respondent and the decedent did not take
place until a year after the decedent=s death when the
respondent, acting as sole executor of the decedent=s estate,
decided that he was entitled to a one-half share of the capital
that the decedent had put into the Duffy Venture. As support for
this contention, the petitioners point to Rogers= first
accounting where the capital was reflected as being owned solely
by the decedent.
We have reviewed the record and cannot agree with the
petitioners= argument. The evidence in the record reflects that
the decedent created a partnership with his son, the respondent.
Both parties were responsible for the taxes on half of the
profits of the Duffy Venture on their respective income tax
forms.
15
Unfortunately, the decedent never followed through with any
written instructions regarding the division of the capital in the
Duffy Venture. Contrary to the petitioners= contentions,
however, this is not evidence that the decedent did not believe
that half of the capital in the Duffy Venture belonged to the
respondent.
Although Rogers= first accounting suggested that the
decedent owned all the capital in the account, Rogers testified
that those calculations were inaccurate based upon later evidence
he discovered regarding the decedent=s intent. Specifically:
(1) the decedent=s notation in his prenuptial agreement that he
only owned fifty percent of the partnership with the respondent;
and (2) the Vanguard account, containing $700,000, was held in
joint tenancy with the right of survivorship between the decedent
and the respondent before it became a partnership account. 1
For these reasons, we find that there was a sufficient
conflict of interest between the respondent=s dual roles as
partner and co-executor before the decedent=s death. As in
1
In ruling upon whether the decedent sanctioned a conflict
of interest between the respondent=s dual roles as partner and
executor, we must review the evidence presented at trial
regarding whether the decedent intended for the respondent to
have all the capital in the Duffy Venture. However, the issue of
the capital in the Duffy Venture is not on appeal in this case
and we make no substantive ruling regarding its ownership.
Instead, we are only ruling upon whether the trial court properly
granted a directed verdict in the respondent=s favor on the
petition to remove him as executor of the decedent=s estate.
16
Halas, we also find that the decedent sanctioned this conflict.
See In re Estate of Halas, 209 Ill. App. 3d 333, 568 N.E.2d 170
(1991).
3. Respondent as Sole Executor
The petitioners also argue that unlike in Halas, the
decedent did not contemplate that the respondent would serve as
sole executor. In re Estate of Halas, 209 Ill. App. 3d 333, 568
N.E.2d 170 (1991). Therefore, they claim, no inference can be
made that the decedent foresaw or sanctioned the respondent=s
conflict.
We are not persuaded. As we have held, the decedent
sanctioned the conflict of interest when he created the
partnership with the respondent and appointed respondent as co-
executor of his estate. The fact that the decedent chose Joseph
and the respondent to serve as co-executors instead of the
respondent as sole executor is immaterial for determining the
issues in this case.
4. Respondent=s Conduct as Abuse of Discretion
Finally, the petitioners argue that even if the decedent
waived any conflict under Halas, his conduct constitutes such an
abuse of discretion that he should be removed as executor. See
In re Estate of Halas, 209 Ill. App. 3d 333, 568 N.E.2d 170
(1991).
As support for this claim, the petitioners point to the
17
following conduct: (1) the respondent drafted a waiver for all
the beneficiaries to sign, acknowledging that he was one-half
owner of the Duffy Venture and waiving any claim to what he
considered to be his share of the partnership; (2) after the
first accounting of the partnership showed that all the capital
was owned by the decedent, and after Joseph had resigned as co-
executor, the respondent commissioned a second accounting, which
concluded that he was the owner of one-half the capital of the
partnership; (3) after Joseph had resigned as co-executor,
respondent transferred an account with a value of $700,000 in
decedent=s sole name into the estate and claimed one-half of the
money as his own; and (4) respondent filed gift tax returns for
the estate showing gifts from decedent to himself under the oral
partnership agreement between the years 1999 to 2003.
A careful review of the transcripts of the proceedings below
indicates that the respondent=s conduct did not constitute an
abuse of discretion.
a. Waiver
The petitioners have raised this issue without any citation
to the record. Without a citation to the record, we are unable
to review the waiver that the respondent allegedly asked the
beneficiaries to sign. Therefore, we will not address this issue
on appeal. See 177 Ill. 2d R. 341(e)(7) (argument portion of
brief shall contain the contentions of the appellant with
18
citation to authorities and the pages of the record relied upon).
b. The Accountings
The fact that Rogers performed more than one accounting is
not evidence that the respondent abused his discretion as
executor of the decedent=s estate. Rogers testified that the
first accounting was incorrect and he later created a new
accounting after he received additional evidence about the Duffy
Venture. There is no evidence that the respondent influenced the
results of the second accounting in any way.
c. Transfer of $700,000
The petitioners next claim that after Joseph filed his
petition to resign, the respondent transferred an account with a
value of nearly $700,000 in decedent=s sole name to the estate
and claimed one-half the money as his own.
Like the waiver that the respondent allegedly asked the
beneficiaries to sign, the petitioners do not provide any details
about this account other than its value. Without further
information and a citation to the record, we cannot review this
issue on appeal. See 177 Ill. 2d R. 341(e)(7).
d. Gift Taxes
Finally, the petitioners allege that the respondent abused
his discretion as executor of the decedent=s estate when he filed
gift tax returns for the estate showing gifts from decedent to
himself under the oral partnership agreement between the years
19
1999 to 2003.
Again, we find no abuse of discretion. Rogers, a certified
public accountant, testified that the evidence in this case
suggested that the respondent was owner of one-half the capital
in the Duffy Venture. The respondent, as executor of the estate,
was within his discretion to file gift tax returns for the estate
showing such gifts from the decedent to himself.
B. Respondent=s Adverse Interest
The petitioners next argue that the respondent=s claim to
one-half of the capital of the partnership and to gifts he
allegedly received from the decedent constitute an adverse
interest requiring his removal as executor. As support for this
contention, the petitioners cite to In re Estate of Phillips, 3
Ill. App. 3d 1085, 280 N.E.2d 43 (1972), and In re Estate of
Devoy, 231 Ill. App. 3d 883, 596 N.E.2d 1339 (1992).
We have reviewed the cases cited by the petitioners and find
that they are not applicable to the instant case.
In In re Estate of Phillips, an administrator failed to
collect debts that were due the estate from a corporation in
which he had been a director. Phillips, 3 Ill. App. 3d at 1089,
280 N.E.2d at 45. The administrator admitted that he had failed
to attempt to collect debts owed to the estate because he felt
that the corporation needed the money more than the estate.
Phillips, 3 Ill. App. 3d at 1089, 280 N.E.2d at 45. The
20
appellate court affirmed the trial court=s order holding that the
administrator=s failure to collect debts was an adequate ground
for his removal. Phillips, 3 Ill. App. 3d 1090, 280 N.E.2d at
46.
In In re Estate of Devoy, the appellate court held that the
administrator had breached his fiduciary duty to the decedent by
participating in lies regarding the destruction of a will.
Devoy, 231 Ill. App. 3d at 887, 596 N.E.2d at 1343-44.
The cases cited by the petitioner involve instances of
serious wrongdoing. Here, the trial court found no wrongdoing on
behalf of the respondent. Instead, the trial court directed a
verdict on behalf of the respondent after it found: (1) the
decedent created a conflict of interest when he created the
partnership with the respondent; and (2) there was no showing of
bad faith on the respondent=s part. We have thoroughly reviewed
the record and find that the trial court=s order was not against
the manifest weight of the evidence.
C. Statement of Joseph Duffy
Finally, the petitioners argue that the trial court erred in
failing to admit into evidence the settlement proposal drafted by
Joseph Duffy, the decedent=s brother. In the settlement
proposal, Joseph suggested that the respondent should step down
as executor because he had a conflict of interest. The trial
court barred the evidence on the grounds that it was an expert
21
opinion.
The admission of evidence is within the sound discretion of
the trial court and its ruling should not be reversed absent a
clear showing that it abused its discretion. People v. Thomas,
171 Ill. 2d 207, 664 N.E.2d 76 (1996). The petitioners argue
that the trial court should have allowed Joseph=s statement into
evidence because it was not offered as an expert opinion.
Instead, they claim that the statement was offered as an
admission by the co-executor acknowledging an adverse interest of
the respondent.
A review of the record indicates that the petitioners were
in fact trying to get the statement of Joseph Duffy, a retired
attorney, into evidence as an expert opinion without previously
disclosing that he would be giving expert testimony.
Accordingly, the trial court did not abuse its discretion in
prohibiting the petitioners from allowing Joseph=s statement into
evidence.
D. CONCLUSION
In sum, we find that the trial court=s order directing a
verdict in favor of the respondent was not against the manifest
weight of the evidence. Before his death, the decedent created a
conflict of interest when he appointed the respondent co-executor
of his estate when he was also involved in a financial
partnership with the respondent. The decedent sanctioned the
22
conflict of interest. We also find no evidence of wrongdoing on
the respondent=s part.
Accordingly, the judgment of the circuit court of Will
County is affirmed.
Affirmed.
O'BRIEN and BARRY, J.J., concur.
23