In re Estate of Lashmett

NO. 4-06-0407 Filed 1/9/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Estate of MARCELLA T. ) Appeal from
LASHMETT, ) Circuit Court of
Deceased, ) Scott County
CHERYL LASHMETT THOMAS, ) No. 00P4
Petitioner-Appellee, )
v. ) Honorable
CHRISTINE LASHMETT MONTGOMERY, ) James W. Day,
Respondent-Appellant. ) Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

This appeal arises from a citation to discover assets

filed by the executor of the estate of Marcella T. Lashmett.

Following an evidentiary hearing, the trial court found that the

respondent to the citation proceedings was indebted to the estate

and entered judgment in favor of the estate. We affirm.

I. BACKGROUND

Marcella T. Lashmett died testate on December 19, 1999.

Her heirs at law were her two daughters, Cheryl Lashmett Thomas

and Christine Lashmett Montgomery. The will named Christine as

executor, but as the named executor took no action to open an

estate, Cheryl filed a petition to admit the will to probate and

was appointed as personal representative. She commenced citation

proceedings against her sister shortly thereafter. The order at

issue here is the result of an amended citation to discover

assets filed on December 16, 2005.
 During her lifetime, Marcella was engaged in the

business of farming with her husband, who predeceased her.

Christine also was engaged in farming. At some point, after the

demise of Marcella's husband and prior to Marcella's death,

Christine frequently borrowed farm equipment belonging to

Marcella. On more than one occasion, Marcella's farm equipment

was used as a trade-in on the purchase of new equipment titled in

Christine's name alone. As each transaction was completed,

Christine and her mother would agree on an amount of monetary

compensation to be paid by Christine to Marcella. This course of

dealing was established not only by the evidence adduced at the

hearing on the citation but also by the provisions of Marcella's

last will and testament executed on March 20, 1998.

Article III of Marcella's will described the course of

dealings had between she and Christine:

"THIRD: FARM MACHINERY AND EQUIPMENT: At

my death, I may own certain items of farm

machinery and equipment which my late

husband, James Lashmett, Jr., and I have used

in our previous farming operation. I have

allowed my daughter, Christine Lashmett

Montgomery, to use this machinery in her

farming operation. Also, I have periodically

consented to allow the said Christine

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Lashmett Montgomery to trade various items of

said farm machinery and equipment for new

equipment which she has purchased for her own

farming operation and in her own name, and I

have received the fair market value of my

machinery traded for newer machinery and

equipment. In each of these said trades, I

have realized the full market value of said

machinery and equipment as it was disposed of

by me in said trades. In the event that I

still own any item of farm machinery and

equipment at my death, I hereby bequeath unto

Christine Lashmett Montgomery, any and all

items of said farm machinery and equipment;

provided, however, that in the event the said

Christine Lashmett Montgomery disposes of or

trades any such item or items of farm

machinery and equipment, as determined by the

said Christine Lashmett Montgomery, in the

sale or trade, shall be divided equally

between my two daughters, Cheryl Lashmett

Thomas and Christine Lashmett Montgomery, per

stirpes."

In 1993, Marcella suffered health problems requiring

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her hospitalization. At that time, she gave a power of attorney

to Christine. On September 28, 1997, Marcella subsequently

executed a new power of attorney in favor of Christine, including

a power for health care. The evidence does not show that

Christine ever used either powers of attorney except to pay her

mother's bills during the times Marcella was hospitalized.

In September 1999, some three months before Marcella's

death, Christine used a tractor belonging to Marcella as a trade-

in for the purchase by Christine of a new tractor. The trade-in

credit generated was $55,296.28. No money was paid to Marcella.

Christine testified that she tried to pay her mother $20,000 for

the use of the tractor as a trade-in and, in fact, provided at

the hearing on the citation a check in that amount marked "void."

Christine testified she voided the check after Marcella refused

any payment for the old tractor.

The trial court granted the citation and, after hearing

evidence, found that Christine was indebted to the estate in the

amount of $55,296.28. Christine's motion for reconsideration was

denied. This appeal followed.

II. ANALYSIS

Christine raises the following issues for review: (1)

whether the citation was filed outside the applicable statute of

limitations; (2) whether the citation improperly sought to

recover a debt; (3) whether the decision of the trial court was

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against the manifest weight of the evidence; and (4) whether the

trial court erred in ordering Christine to pay a sum certain into

the estate rather than awarding the estate an interest in the

tractor. As to issues one, two, and four, our review is de novo

as resolution of them involves purely questions of law. See

Illinois Farmers Insurance Co. v. Marchwiany, 222 Ill. 2d 472,

476, 856 N.E.2d 439, 441 (2006). As to issue three, a manifest-

weight standard is applied. See White v. Raines, 215 Ill. App.

3d 49, 60, 574 N.E.2d 272, 280 (1991).

Before addressing each of respondent's arguments on

appeal, it is helpful to set forth some basic principles of

probate law and practice. While Illinois has codified the laws

of descent and distribution, as well as the procedures for the

administration of decedents' estates in the Probate Act of 1975

(Probate Act) (755 ILCS 5/1-1 through 30-3 (West 2004)), the

relationship between the court, the estate, and the parties was

known at common law. We rely on those principles to understand

both the relationship between the court and the parties as well

as the inherent powers and duties of each.

The circuit court, sitting in probate, performs the

duties of a probate court as the same was known prior to the

adoption of the judicial article effective January 1, 1964. See

Ill. Const. 1870, art. VI, §20, and Ill. Const. 1970, art. VI,

§9. The court is ultimately in control of the estate, not the

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personal representative. The personal representative in the

collection and management of the estate is an agent of the court

subject to the court's control and direction. The powers of the

representative are derivative of the court's power in such a way

that the representative acts as an agent of the probate court

with legal duties to the court and fiduciary duties to the

estate.

"The remedy furnished by the Probate Act

for the recovery of property of the deceased

or the discovery of information relating to

the property is cumulative[] and was designed

to be more expeditious and less expensive

than the ordinary proceedings of detinue,

trover or replevin. Although it is neither

in law or equity, the citation proceeding

bears the equitable aspects of a bill for

discovery, in which it was necessary to sift

the conscience of the party charged and to

get at facts of which he or she alone could

have knowledge. The intention of the

legislature is to enable the court to compel

the person cited, to discover, on oath,

whether he or she has estate property in his

or her possession." 1A M. McElroy, Horner

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 Probate Practice and Estates, §24.3, at 390-

91 (4th ed. rev. 2002).

Likewise, the citation procedure may be used repeatedly with

regard to the same subject matter. 1A M. McElroy, Horner Probate

Practice and Estates, §24.1, at 388 (4th ed. rev. 2002); Schwaan

v. Schwaan, 320 Ill. App. 287, 289, 50 N.E.2d 861, 862 (1943).

A. Statute of Limitations

Respondent argues that the amended citation filed by

the representative on December 13, 2005, is beyond the five-year

limitations period associated with "all civil actions not

otherwise provided for" found in section 13-205 of the Code of

Civil Procedure (735 ILCS 5/13-205 (West 2004)). The decedent

died on December 19, 1999, which date would normally mark the

beginning of the five-year period, if applicable.

The representative argues that the "amended" citation

is simply a revision of the citation filed by the representative

against Christine on February 18, 2000. That citation, however,

proceeded to hearing before the trial court on March 27, 2000.

At the conclusion of that hearing, the citation was discharged.

Because of that discharge, no pleading remained to amend. The

representative's contention (that the timeliness of the "amended"

citation is saved by a theory of relation back) must therefore

fail as there was nothing extant to which it could relate back.

This does not, however, end our inquiry. The nature of

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a citation on behalf of an estate pursuant to section 16-1 of the

Probate Act (755 ILCS 5/16-1 (West 2004)) is a vehicle by which

the court can order returned to the estate property of the

decedent that is wrongfully withheld from it. The trial court's

jurisdiction sitting in probate extends to all property of the

decedent, no matter where it may be found or when. As a

consequence of that jurisdiction, the statute of limitations

relied upon by respondent does not and cannot apply. To allow

the statute of limitations to bar the recovery of an asset of the

estate would serve to defeat the jurisdiction of the probate

court and effectively restrict the statutory and common-law power

of the court to supervise the administration and disposition of

estates. For that reason, respondent's argument must fail.

B. Use of a Citation To Collect a Debt

Respondent argues that the use of a citation on behalf

of an estate pursuant to section 16-1 of the Probate Act (755

ILCS 5/16-1 (West 2004)) is an inappropriate vehicle by which to

recover a debt. This argument is based on Johnson v. Nelson, 341

Ill. 119, 122, 173 N.E. 77, 79 (1930), wherein our supreme court

examined the jurisdiction of the probate court with regard to the

administration of estates, as established by the predecessor

statutes authorizing a citation proceeding (see Cahill's Stat.

1923, ch. 3, §81; Smith-Hurd Stat. 1923, ch. 3, §82). In

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substance, those predecessor statutes are identical to section

16-1.

Keeping in mind that the probate court in 1930 was a

court of limited, rather than general, jurisdiction (see Ill.

Const. 1870, art. VI, §20), the supreme court held:

"The power to determine questions of

title and rights of property and to enforce

by execution orders adjudicating titles or

requiring the delivery of property, added to

sections 81 and 82 by the amendatory act,

does not include jurisdiction of the ordinary

action for the recovery of money the title to

which is in the debtor. Where the relation

of debtor and creditor arises for money lent,

the debtor owns the money and is indebted to

the creditor for it, and consequently the

debtor has no money belonging to the

creditor, or to the latter's estate, in his

possession. To enforce collection of the

indebtedness in such a case, by the rendition

of a personal judgment against the debtor,

was not within the scope of sections 81 and

82 prior to July 1, 1925, and no such power

was conferred by the amendatory act, either

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expressly or by implication.

In the present case, the money was

delivered to the defendant in error by the

transfer to his credit in the bank[,] and the

title to the money vested in him. There is

no contention by either party that the father

continued to own the money after the transfer

was made. Whether the transaction resulted

in a loan, as the plaintiff in error argues,

or constituted a gift, as the defendant in

error insists, is for the present purpose

immaterial, for in either situation, no

question of title or of the recovery of

specific property belonging to the estate is

involved. Upon the view of the plaintiff in

error that a loan was made, for which[,] with

interest, the defendant in error is indebted

to the estate, the relation of debtor and

creditor merely was created and the summary

proceeding provided by section 81 is not

available. Obviously no opinion is expressed

upon the merits of this case, but if the

defendant in error is indebted to his

father's estate, the remedy is an action at

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 law." Johnson, 341 Ill. at 125-26, 173 N.E.

at 80.

Resolution of this issue in the first instance requires us to

determine whether the claim for property made under the citation

here constitutes an attempt for collection of a debt or the

recovery of property.

Unlike the transfer of money to the decedent's son in

Johnson, where the money once transferred (whether by gift or

loan) became the property of the son, the issue presented by the

instant citation arises from the conversion of a tractor.

Whether the taking of the tractor by Christine and her use of it

for a trade-in on a new tractor was with or without the

decedent's consent, which was the ultimate issue presented for

decision by the trial court, it does not resolve the question of

whether the recovery of the converted asset constitutes the

collection of a debt.

In common parlance, when someone is said to owe money

or a thing to another, it is understood that the owing is a debt.

However, the use of the term "debt" for purposes of our analysis

is more fine. In Cox v. Rice, 375 Ill. 357, 362, 31 N.E.2d 786,

789 (1940), the court held that a circuit-court order, requiring

a former conservator to repay money that was invested without

court approval and suffer imprisonment for the failure to repay,

did not constitute a debt for purposes of the constitutional bar

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against imprisonment for debt. In other words, not all money

owed constitutes a debt in this sense. Rather, debt in the sense

as it is used in Johnson is an obligation to repay, which grows

out of a consensual transaction between the creditor and the

debtor. Cf. Kazubowski v. Kazubowski, 45 Ill. 2d 405, 408, 259

N.E.2d 282, 285 (1970), cert. denied, 400 U.S. 926, 27 L. Ed. 2d

186, 91 S. Ct. 188 (1970) (the defendant owed a "debt" that had

been court-ordered, not consensual, and was jailed in contempt

proceeding for a failure to pay).

It is noteworthy as well that the supreme court in

Johnson used as examples of debt the loan or gift of money,

either of which is a two-party transaction. While Christine

argues that her use of her mother's tractor as a trade-in was a

gift, the trial court found it was not. Rather, the trial

court's decision was based on a characterization of the

transaction as a conversion by Christine. The obligation to

return the corpus of a conversion is not a debt within the

limitation on the use of a citation described or contemplated by

the supreme court in Johnson. If Christine had physical

possession of the tractor and had not sold it, no issue of

whether her obligation to return the tractor constituted a "debt"

would arise. If, by her sole action, she converted the tractor

into cash, the obligation due from her to return to or repay the

estate does not change the character of the obligation owed by

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her. In such a case, a debtor-creditor relationship between

Christine and her mother did not exist. See In re Estate of

Willich, 338 Ill. App. 289, 297, 87 N.E.2d 327, 331 (1949); see

also In re Estate of La Rue, 53 Ill. App. 2d 467, 476, 203 N.E.2d

47, 51 (1964).

The personal representative also argues that an

exception to the rule in Johnson exists when the debtor is a

fiduciary. It is clear that Christine held a power of attorney

given by her mother some years prior to her death. As the holder

of the power, she had a fiduciary relationship with her mother.

See Apple v. Apple, 407 Ill. 464, 468-69, 95 N.E.2d 334, 337

(1950). As this court has previously noted in In re Baker, 117

Ill. App. 2d 332, 337, 253 N.E.2d 550, 552 (1969), there is an

exception to the general rule barring the use of a citation on

behalf of the estate to collect when the respondent was a

fiduciary to the decedent. See also La Rue, 53 Ill. App. 2d at

476, 203 N.E.2d at 51; Willich, 338 Ill. App. at 299, 87 N.E.2d

at 332. While there is no evidence that Christine used the power

of attorney given to her to accomplish the trade of the

decedent's tractor, she still owed a fiduciary duty to the

decedent. Under either analysis, respondent's argument fails.

C. Manifest Weight

Respondent argues that the trial court's decision is

against the manifest weight of the evidence. Particularly, she

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argues that her production of a check for $20,000 written to the

decedent marked "void" is evidence of her claim that she

attempted to pay her mother for at least a part of the tractor.

As a corollary, she argues the check is evidence of the

credibility of her testimony that the trade was accomplished with

the decedent's consent and that her mother did not want any

proceeds from the transaction.

The trial court is in the best position to evaluate the

credibility of the witnesses and to determine therefrom the facts

of the case. White, 215 Ill. App. 3d at 60, 574 N.E.2d at 280.

Its decision will not be overturned unless it is a against the

manifest weight of the evidence. White, 215 Ill. App. 3d at 60,

574 N.E.2d at 280. Here, the trial court had the testimony of

Christine, the alleged voided check, and some history of the

dealings between Christine and her mother as evidenced by article

III of the decedent's will. As a fiduciary to her mother, it was

respondent's burden to prove that the tractor used as a trade

constituted a gift. La Rue, 53 Ill. App. 2d at 476, 203 N.E.2d

at 51; In re Estate of Casey, 155 Ill. App. 3d 116, 122, 507

N.E.2d 962, 966 (1987).

In contravention of respondent's assertion is the

evidence that the decedent memorialized prior gifts to Christine

by the preparation and filing of a gift tax return. We note that

the sum of $55,296.28, given the gifts previously disclosed by

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the 1998 gift tax return, should have triggered the requirement

of a filing of a gift tax return for that amount as well. While

the decedent died prior to the date by which such a return should

have been filed, only one person had the necessary information to

generate the return at its due date: Christine. Her inaction is

as much evidence of whether the tractor transaction was a gift,

especially given her fiduciary relationship to her mother and the

estate, as anything else. We find there was sufficient evidence

upon which the trial court could base its decision to find

Christine failed to meet her burden of proof and to include the

proceeds of the trade-in in the estate.

D. Monetary Award

Respondent argues that since the decedent's tractor was

used to generate a trade-in credit on the purchase of a new

tractor, the estate should have been awarded a percentage

ownership of the new tractor rather than the monetary-trade value

in dollars. The difficulty with respondent's argument is that

once chattel is sold, as this tractor was by reason of conveying

it to the dealer of the new tractor, the res of the mother's

estate has changed from chattel to the monetary credit that

generated upon Christine's purchase of the new tractor. See In

re Estate of Swartz, 218 Ill. App. 449 (1920) (dispute regarding

estate's entitlement of chattel or the fair cash-market value of

the chattel). It is no different than if Christine had simply

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sold her mother's tractor for cash and kept it.

As respondent provides no legal authority in her brief

for her contrary position, we will follow the above analysis to

rule in favor of the estate as well.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court's

judgment.

Affirmed.

McCULLOUGH and MYERSCOUGH, JJ., concur.

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