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

5
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

6
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

7
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

8
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

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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