concurring in part and dissenting in part:
I initially address the majority’s conclusion that the doctrine of substituted judgment is not applicable to this appeal. I respectfully disagree with the majority’s conclusion.
The origin of the doctrine of substituted judgment has been traced back to a 19th century English case, Ex parte Whitbred, in the Matter of Hinde, 2 Merivale 99, 35 Eng. Rep. 878 (1816). In Whitbred, it was recognized that the chancellor could, under proper circumstances, grant to needy relatives part of an incompetent’s surplus income. Such payments were to be determined according to what the incompetent would probably have paid had he been of sound mind. In more modem times, the California courts have interpreted and expanded the concept of substituted judgment. In the leading case of In re Guardianship of Christiansen (1967), 248 Cal. App. 2d 398, 56 Cal. Rptr. 505, the California court of appeals determined that under the California probate statutes, the probate court had the power to consider matters affecting the estate of the incompetent which were not expressly covered by the statutory scheme. (248 Cal. App. 2d at 408-13, 56 Cal. Rptr. at 512-15.) The Christiansen court determined that the probate courts had the power and authority to decide whether to authorize transfers of the property of the incompetent for the purpose of avoiding unnecessary estate or inheritance taxes or expenses of administration, and to authorize such action where it appeared from all of the circumstances that the incompetent, if sane, as a reasonably prudent man, would so plan his estate, there being no substantial evidence of a contrary intent. 248 Cal. App. 2d at 424, 56 Cal. Rptr. at 522-23.
In determining whether to authorize transfers from an incompetent’s estate under the doctrine of substituted judgment, the Christiansen court recognized four main criteria. First, a court should consider the permanence of the incompetent’s condition. (248 Cal. App. 2d at 424-25, 56 Cal. Rptr. at 523.) Since it had been established that Christiansen’s condition was considered permanent, the court declined to consider whether the condition rendering the ward incompetent is a prerequisite to the invocation of the substituted judgment doctrine. The second factor to be considered by a court is the needs of the ward. The Christiansen court stressed that there could be no transfers from an incompetent’s estate for any purpose until the needs and obligations of the ward had been satisfied. (248 Cal. App. 2d at 425, 56 Cal. Rptr. at 523-24.) The third factor which must be explored is the incompetent’s intended devolution of his property. In regard to this factor, the Christiansen court observed that “[sjince on recovery the incompetent would be free to make or change his will, no transfers should be authorized for tax saving purposes alone unless there is no probability of this eventuality.” (248 Cal. App. 2d at 426, 56 Cal. Rptr. at 524.) The final factor contemplated by the court involved do-native intent. Here, although not requiring a showing of former practice or conduct, the court stated that there must be some showing of a relationship and intimacy between the incompetent and the prospective donees in order to establish that they would be the objects of the incompetent’s bounty by any objective test. 248 Cal. App. 2d at 425, 56 Cal. Rptr. at 523-24.
In legislation effective January 1, 1981, the California legislature codified that court-recognized doctrine of substituted judgment. (See Cal. Prob. Code §2580 et seq. (West Supp. 1988).) Pursuant to the California statute, a conservator or other interested persons may petition the court to take proposed action for the purpose of (1) benefitting the conservatee or the estate, (2) minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee, or (3) providing gifts for such purposes, and to such charities, relatives, friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee. (Cal. Prob. Code §2580 (a)(1), (a)(2), (a)(3) (West Supp. 1988).) Similar provisions are found in Massachusetts, Pennsylvania and the Uniform Probate Code. (See Cal. Prob. Code §2580 (West Supp. 1988), Law Revision Commission Comment, 1979 Addition.) The California statutory scheme further provides that notice of the conservator’s petition must be given to certain persons. (Cal. Prob. Code §2581 (West).) Consistent with Christiansen, where an incompetent opposes the proposed action, the court shall allow the exercise of substituted judgment for the incompetent. Also, the court must determine that the proposed action will not adversely affect the estate, so that the estate remaining after the action is taken is sufficient to provide for the needs of the conservatee and those people entitled to support, maintenance and education by the conservatee. (Cal. Prob. Code §2582 (West).) Finally, the California statute states with particularity the general criteria recognized by Christiansen as being relevant to a determination as to whether a proposed action concerning a conservatee’s estate should be authorized. Cal. Prob. Code §2583 (West).
I believe that Christiansen and the statutory scheme concerning substituted judgment enacted in California following that decision provide a framework for recognition of the doctrine of substituted judgment here in Illinois. I further believe that recognition of this doctrine represents an important step forward in regard to the administration of incompetents’ estates since it permits a court to authorize actions which it deems, after considering all of the relevant criteria, consistent with the concerns and wishes of the incompetent, were he of sound mind. Thus, rather than requiring a court to adhere to a rigid method of dealing with incompetents and their estates as though all incompetents dwell in a vacuum, the doctrine acknowledges that the past actions and desires of an incompetent should not be inexorably ignored. The doctrine provides a careful balance between protecting the incompetent’s estate and providing for the continuation of the actions and desires of the incompetent, as exhibited by the incompetent while still of sound mind.
Although neither the Illinois Probate Act nor the Illinois Probate Act of 1975 has a provision which specifically concerns substituted judgment, I believe that the provisions of these Acts are such that they are broad enough to encompass that concept. Both Probate Acts specify that they are to be liberally construed. Both Acts refer to the conservator’s duty to apply the income and principal of the incompetent’s estate “for the comfort and suitable support and education of the ward [and] his children.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. IKPAj, par. 11 — 13(b); Ill. Rev. Stat. 1979, ch. IIOV2, par. 11a — 18; Ill. Rev. Stat. 1969-1975, ch. 3, par. 122.) Thus, I believe that the legislature clearly contemplated that disbursements from the incompe-' tent’s estate should not be limited to providing for “bare bones” necessities, but rather, should be permitted where the court is reasonably convinced that disbursements sought by the conservator are consistent with what it appears that the incompetent would have done if he were still competent. In this regard, I believe that it would be as unfair to an incompetent to preclude disbursements from his estate to benefit his loved ones and the causes which he supported as it would be to make disbursements which subsequently turn out not to have been in keeping with the incompetent’s apparent wishes. The substituted judgment doctrine necessarily involves the inherent risk that. court-authorized disbursements will not accurately reflect the amount or type of disbursements which the incompetent, if of sound mind, would have made himself. However, where a court has properly considered the relevant criteria, I do not believe that it is any worse to err on the side of generosity, as apparently occurred here, as to err on the side of parsimony.
In examining the disbursements made from Berger’s estate in light of the substituted judgment doctrine, I agree with the Christian-sen court that the test as to whether such disbursements should have been authorized does not require evidence of past conduct or practice (Christiansen, 248 Cal. App. 2d at 420, 56 Cal. Rptr. at 520), nor is subjective intent the sole consideration (Christiansen, 248 Cal. App. 2d at 422, 56 Cal. Rptr. at 521). Rather, the governing standard should be whether the conservator was authorized to act as a reasonable and prudent man would act under the same circumstances, unless there is evidence of any settled intention of the incompetent, formed while he was still of sound mind, to the contrary.
While I believe that California’s comprehensive statutory scheme regarding substituted judgment should be considered in future cases concerning the administration of incompetents’ estates, I recognize that some of the provisions cannot be considered here due to the current posture of this case. I therefore turn to the Christiansen criteria for invocation of the substituted judgment doctrine, as I believe that it is appropriate to apply the criteria set forth in that case to the circumstances here.
Initially, I believe that it is critical to point out that Berger’s estate was always more than sufficient to cover Berger’s needs during Berger’s incompetency. The record shows that Berger’s estate more than doubled during the period of Berger’s incompetency, increasing from approximately $143,000 to $387,000, despite the disbursements to which Berger now objects. Furthermore, all of the transfers were made from, surplus income; the principal remained untouched.
Next, I direct my attention to the perceived permanence of Berger’s incompetence. Clearly, modem medicine has not yet progressed to the point where the diagnosis and treatment of mental illness can be considered precise. Moreover, I do not believe that permanence of incompetence is necessarily required in all instances for the doctrine of substituted judgment to be invoked. Nevertheless, the record here shows that there was sufficient evidence to support the conclusion that Efron, during most of his tenure as conservator, reasonably believed that Berger’s condition was permanent. Efron was aware of Berger’s history of mental problems, he was closely involved with Berger’s care, and he was kept well apprised of Berger’s condition. I recognize that some of the testimony relating to Efron’s knowledge of the extent of Berger’s problems is set forth in various offers of proof, as the trial court refused to admit the testimony on the basis of Berger’s hearsay objections. However, I agree with respondents that the hearsay objections to this testimony should not have been sustained and that the testimony was improperly excluded. The testimony was not offered to establish that Berger’s condition was, in fact, permanent. Rather, it was presented to show that Efron reasonably believed that Berger’s condition was permanent and that he acted accordingly with regard to the doctrine of substituted judgment. See In re Estate of Chronholm (1962), 38 Ill. App. 2d 141, 155, 186 N.E.2d 534, 541.
When the improperly excluded evidence is considered with the other evidence, the record shows that Berger had a history of mental illness, and, in fact, his incompetency lasted for 10 years, a significant length of time. Various forms of treatment were tried without success. The YA hospital in Kansas determined that Berger would not benefit from further hospitalization, and therefore Berger was transferred to a custodial care facility. Emma Hope, who worked at Fellowship House while Berger was there, testified that she would not have recognized Berger now because he looked like a million dollars compared to how he appeared when she first met him. Dr. McCullough, who was eventually responsible for Berger’s recovery, testified that Berger was suffering from severe agitated depression, and that, as a general rule, where a patient has been seriously psychiatrieally ill for two or more years, the tendency for the condition to remain chronic throughout his lifetime is much greater than if the condition had been present for less than two years. Since Berger had been incompetent for seven years prior to the time that McCullough first met him, the length of the illness supported the perception that Berger's problems were permanent. Respondents testified that McCullough had indicated to them that he was pessimistic about Berger’s chances for recovery. McCullough also testified that the staff at the halfway house in Evanston where Berger resided from October 1975 to May 1976 had been concerned about possible suicidal thoughts expressed by Berger. Moreover, in 1976, Berger’s attempt to reside in a hotel failed when the severity of his problems increased, and he had to be hospitalized once again. Jessie Squire, who owned and operated Arlington House where Berger went to reside in 1976 following one of his numerous hospitalizations, testified that there were questions as to whether Berger was a proper guest for Arlington House, which was only a residential facility, due to Berger’s psychiatric problems. Accordingly, in view of the length and seriousness of Berger’s mental illness, I belleve a determination that Berger’s incompetency was likely to be permanent was reasonable.
The third Christiansen criterion which must be addressed is that of Berger’s intended disposition of his property upon his death. Here, there is no question but that at the time Berger was declared incompetent, his daughters, Deborah and Gloria, were the sole objects of his affection and the natural objects of his bounty. Berger’s will, executed prior to his incompetency, generally provided that his property should go to his children if his wife, Janice, should predecease him. Berger did not meet his present wife, Florence, until approximately six months prior to the time that he was restored to competency. Thus, the transfer of monies from Berger’s estate to Deborah and Gloria clearly did not interfere with Berger’s proposed disposition of his estate upon his death.
For similar reasons, I believe that the final Christiansen factor, relating to donative intent, is established by the record. There was more than adequate testimony from which a close relationship between Berger and his daughters, both before and during Berger’s incompetency, could be inferred. Deborah and Gloria testified regarding the closeness of the family unit and the generous gifts and extremely comfortable lifestyle which their parents provided. They also testified regarding their continuing involvement with their father during his incompetency. Berger’s testimony did not directly contradict respondents’ testimony on these matters, nor did Berger claim that he was a distant or uninvolved father, or that his support of his family was limited to the necessities of life.
I therefore believe that the record shows the presence of the criteria necessary to warrant application of the doctrine of substituted judgment and that the doctrine should have been considered in this case. However, despite my general conclusion to this effect, I believe that each individual disbursement disallowed by the trial court must be scrutinized in order to determine whether it should have been permitted under the doctrine of substituted judgment.
One of the objections made by Berger was that funds from his estate should not have been used to pay for Deborah’s tuition to the National College of Education for a graduate degree. The trial court surcharged these funds against the conservator, finding that these disbursements were wrongful because at the time that they were made, Deborah was “an adult, married and emancipated and not otherwise dependent upon the ward for support.” I believe that the trial court erred in finding these disbursements wrongful, and I further believe that the majority has erroneously reached the same result.
The statutes provide that in managing the ward's estate, the conservator shall provide “suitable support and education” for the ward’s children. Thus, I do not believe that the mere existence of the factors relied on by the court to disallow these educational expenses mandate a finding that the disbursements were improper, especially when viewed in light of the substituted judgment doctrine. In families where education is made a high priority, it is not unusual for a parent to continue to pay for a child’s education even after the child reaches maturity and/or is married. Here, the education expenses were set forth in the sixth through the ninth current accounts approved by the probate court. Efron, who was the conservator at the time of these expenditures, knew Berger intimately, since he was Berger’s father-in-law and his employer for more than 21 years. Berger did not object to any disbursements made in relation to his daughters’ undergraduate degrees. Under these circumstances, I conclude that the doctrine of substituted judgment should be applied to the expenditures for Deborah’s education and that amounts distributed from Berger’s estate for the purpose of Deborah’s advanced education should not be surcharged against the conservator.
For similar reasons, I believe that the trial court erred in surcharging certain gasoline and automobile expenses against the conservator. Gloria’s testimony indicates that these expenses were related to field placement work that she did in connection with her college education and to driving between her home and her college. Since these expenses were college related, they should not have been disallowed.
The next category of disbursements which I address involves vacations taken by Gloria and Deborah. The trial court determined that these vacations involved pleasure trips, which were not supportable as gifts. The majority agrees with the conclusion of the trial court. I disagree.
The vacations included trips to Miami, Florida, and a trip to Europe. The trips to Florida involved visits to Efron, the conservator and Deborah and Gloria’s grandfather, who spent much of his time in Florida. While there was no history of family trips to Florida prior to Berger’s incompetency, Gloria and Deborah did testify that when they were growing up they went every summer to South Haven, Michigan, where their father and Efron had homes. Thus, the close relationship between the girls and their grandfather and their pattern of spending time with him are shown by the record. The fact that the vacations challenged here involved trips to Florida rather than Michigan is not determinative of the propriety of the disbursements. It must be remembered that Gloria and Deborah had lost their mother and that their father, Berger, was declared incompetent soon thereafter. A reasonable person could have believed, under the doctrine of substituted judgment, that these vacations by Deborah and her husband and Gloria to visit their grandfather would have been in keeping with Berger’s desire to foster the family unit. In regard to the European vacation, there was testimony that Berger and his wife had promised such a vacation to their daughters. While I agree with Berger that this trip clearly did not constitute a necessity (see McKanna v. Merry (1871), 61 Ill. 177, 178), I nevertheless conclude that where the court was apprised of the vacation, and there was no fraud, mistake or accident, the conservator should not be surcharged for the cost of the trip.
The next items to be considered are certain items of clothing which the trial court disallowed and surcharged to the conservator. Contrary to the finding of the majority, I believe that the record shows that these items were not really different in kind from the type of clothing which the girls were accustomed to receiving from their parents. Therefore, these items should not be surcharged against the conservator. For similar reasons, I do not believe that expenditures on gifts for birthdays, anniversaries, and for Berger’s grandchildren, as well as for other family-related events, should be surcharged against the conservator. The testimony of Gloria and Deborah showed that their parents did give them rather lavish gifts, including jewelry and a fur jacket, for special occasions. Obviously, there could not have been any established pattern for anniversary gifts or gifts for grandchildren since Berger was adjudicated incompetent before Deborah and Gloria celebrated their first anniversaries or had any children. Here, there was an established pattern of gift giving prior to Berger’s incompetence which evidenced a donative intent on Berger’s part toward his daughters. Under the doctrine of substituted judgment, extension of the established pattern to anniversaries, grandchildren and other family-related events was not improper.
However, while I do agree with my colleagues’ determination that the charitable contributions made by Efron and reflected in the conservator’s eighth, ninth and final accounts cannot be upheld, I base my agreement on different reasoning. There was simply no evidence at trial as to any charitable contributions made by Berger and no evidence of his particular interest in the charity to which funds from his estate were donated. While no one disputes the worthiness of the charity, and respondents point out that the contributions were not excessive, these factors are clearly insufficient to bring the charitable gifts within the ambit of the substituted judgment doctrine. Accordingly, I believe that the charitable contributions cannot be upheld under the doctrine of substituted judgment and the trial court properly surcharged the conservator for these donations.
I likewise am in accord with the majority’s determination that the trial court correctly disallowed (1) any support payments made to Gloria prior to her marriage which were in excess of $400 and (2) all of the support payments made to Gloria following her marriage. I, however, reach the same conclusion as the majority through my application of the doctrine of substituted judgment to this issue. In the present case, the 1971 order for support expired by its terms when Gloria graduated, and there is no justification in the record for continuing support payments to Gloria which were initially linked to her education after the time that Gloria completed her education and married Philip Roth. I am unable to conclude that a reasonable person would have believed that Berger would have continued the substantial payments at issue here once Gloria had her degree and was married. I also conclude, as my colleagues do, that the conservator’s unilateral decision to increase the monthly payments without court approval cannot be sanctioned. The payments were increased first by 50% and then by 100% from the original court-ordered payment. Such unapproved increases cannot be validated on the basis of increased inflation alone. Therefore, the trial court properly surcharged the conservator and the successor conservator for the wrongful support payments attributable to them.
The final monies which Berger claims were improperly disbursed from his account involve annual payments of $3,000 to both Gloria and Deborah, which began in 1973. Ostensibly, the purpose of these disbursements was to reduce estate and/or inheritance taxes. While I believe that minimization of taxes is a valid consideration in regard to the application of the substituted judgment doctrine, I do not believe that the manner in which these disbursements were accomplished here can be legitimized under that doctrine. The trial court found that all of these annual payments were gifts. It held that these payments were improper and should be charged against the conservator and the successor conservator. I agree.
There is no indication in the record that at the time the court approved the annual accounts which reflected the $3,000 payouts it was aware of what respondents now claim was the “actual” purpose of the payouts, namely, to reduce estate and/or inheritance taxes. Additionally, at some point in the late 1970s, it must have become apparent that Berger’s condition was markedly improved. In fact, Dr. McCullough testified that Berger would have been restorable during 1979. Also, Berger was only in his mid-fifties at this time. I believe that the “permanence of condition” factor is particularly critical where gifts from an incompetent’s estate are made solely to reduce prospective estate or inheritance taxes. Since Berger’s evident change in condition negated whatever reasonable beliefs there might have been earlier that his condition was permanent, the fact that the $3,000 disbursements were appropriately listed as gifts rather than as living expenses in the later current accounts cannot serve to justify application of the substituted judgment doctrine to these disbursements.
I next address the question, raised in Berger’s cross-appeal, of whether the trial court erred in denying Berger’s objections to the $15,000 payouts made to Deborah and Gloria in 1973 as a lifetime gift tax exclusion. The trial court found that Berger’s objections were untimely because the gifts had been allowed in an order entered in 1973. The trial court determined that since the order was final and appealable in 1973, Berger should have objected to these gifts by way of a motion pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), which he would have had to file within two years of his restoration. I agree with the majority’s conclusion that the trial court erred in precluding Berger from objecting to the payments. Although the $15,000 payments were approved in a separate court order, they were also included in the annual account for that period, as was proper. Thus, Berger had the right to object to the payments as part of his objections to the current and final accounts.
I, however, disagree with my colleagues’ determination that the trial court erred in overruling Berger’s objection to the two $15,000 payments. The record shows that Efron had petitioned the court for permission to make these distributions, and in the petition he explained to the court the reasons for the request. The court entered an order authorizing the request. While Berger argues that the guardian ad litem failed to properly contest this disbursement at the time of the conservator’s petition, this allegation is insufficient to show that the order was improper or that there was fraud, accident or mistake in regard to the approval of the current account in which the payout appears.
In addition, at the time that these funds were disbursed, all of the elements required to apply the doctrine of substituted judgment were present. I disagree with Berger’s argument that the evidence presented to the trial court here demonstrated that this large cash gift, made in 1973, was inappropriate because Berger was not incurably ill and had a long life expectancy. Hindsight alone cannot serve to invalidate the gift. Berger’s will shows that he was concerned about estate and inheritance taxes. Thus, it would have been reasonable to assume that he was also concerned about gift taxes. In 1973, there was no apparent improvement in Berger’s condition and virtually no hope for his restoration. The fact that Berger eventually returned to competency cannot be used to retroactively invalidate the use of the doctrine of substituted judgment where it was properly exercised at the time of the distribution. I therefore conclude that the trial court’s order upholding the $15,000 gifts was correct, even though the court’s reasoning was erroneous. See Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 1062, 467 N.E.2d 1153, 1155.
Since I believe that the trial court correctly upheld some of Berger’s objections, I now consider respondents’ argument that Berger approved and ratified the handling of his estate following his restoration. I, like my colleagues, cannot say that Berger ratified the disbursements at issue here following his restoration. With regard to Berger’s failure to object to the accounts at the time of the October 2 meeting, I likewise agree that Berger was entitled to consider the accounts further before deciding whether they should be challenged. Berger’s failure to voice an objection at that time was not sufficient to preclude Berger from filing his objections at a later date. In addition, although Berger’s decision not to file a claim against Efron’s estate may be deemed unfair, he clearly had the right to choose not to do so. Accordingly, I agree that respondents’ ratification argument was properly rejected.
Next, I address whether the trial court was correct in ordering the return of certain personal property to Berger. Among the property which was contested were three bank accounts: (1) Liberty Savings & Loan Assn., account No. S53787 — 7 (in the names of Berger and Deborah); Liberty Savings & Loan Assn., account No. S29514 — 7 (in the names of Berger and Gloria); and (3) Devon Bank, account No. 74568 (in the names of Berger and Deborah). I disagree with the majority’s resolution of this issue. I believe that the trial court improperly ordered Deborah and Gloria to return the funds in these accounts to Berger.
At the time of the first annual account, the court was advised that the funds in these accounts belonged to the daughters. While Berger complains that the guardian ad litem failed to adequately protect his interest in regard to these accounts, Berger’s dissatisfaction is insufficient to warrant a return of the funds. Moreover, at trial, Berger merely testified that he set up these accounts in order to protect himself in the event of his wife’s death. The record shows, however, that one of the accounts was set up in 1962, approximately seven years prior to the death of Janice. In regard to the Devon Bank account, Berger testified that he had no recollection of this account. In contrast, Gloria and Deborah gave plausible explanations for the manner in which they had accumulated the funds in the accounts. Under these circumstances, I cannot say that there was any fraud, mistake or accident shown in regard to the initial determination that these accounts belonged to Deborah and Gloria. Therefore, I believe that the trial court erred in ordering that the funds which were in these accounts be returned to Berger.
However, I do agree with my colleagues’ determination that the trial court’s finding that Berger had never made a gift of certain personal and household property to his children was correct.
I also agree with the majority’s conclusion regarding respondents’ argument that Berger, while experiencing lucid intervals during his incompetency, gave valid consent to the transfer of all the personal property and the monies to which he now objects.
I next address respondents’ argument that the trial court should not have entered summary judgment in favor of Maryland Casualty on the subrogation counts for money had and received and for a constructive trust because the pleadings disclose material issues of fact in regard to Maryland Casualty’s right to recover. A motion for summary judgment is to be granted if the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005.) Since summary judgment is a drastic method for disposing of cases, it should be allowed only where the movant’s right to such a judgment is clear and free from doubt. (Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 438, 437 N.E.2d 817, 820.) In contradiction to the result reached by my colleagues regarding this issue, I agree with respondents that the summary judgment entered in favor of Maryland Casualty here was improper.
Maryland Casualty’s claim that it was entitled to be subrogated to the rights of Berger’s estate and recover money from respondents based on theories of money had and received and a constructive trust was based solely on the order of the trial court in the underlying action. In its claim for money had and received, Maryland Casualty stated that the trial court’s order required the conservator and the successor conservator, respectively, to pay the estate monies which they had wrongfully transferred from the estate during Berger’s incompetency. To the extent that such repayments were not made, the court’s order further provided that the respective sureties were to pay the amounts due. Maryland Casualty alleged that Efron’s estate had failed to pay any sums to Berger’s estate pursuant to this order; that Maryland Casualty had posted a supersedeas bond in the underlying action; and that if, after exhaustion of all appeals, Maryland Casualty is obligated to pay any monies to Berger’s estate, it would become subrogated to the rights of Berger’s estate and entitled to seek restitution from respondents for money had and received. In its second subrogation claim, Maryland Casualty realleged the same facts and sought to have a constructive trust imposed upon the funds wrongfully transferred from Berger’s estate to respondents.
I believe that Maryland Casualty’s pleadings were insufficient to warrant the issuance of summary judgment. The doctrine of subrogation is designed to place the ultimate responsibility for a loss upon the one on whom in good conscience it ought to fall and to reimburse the innocent party who is compelled to pay. (Housing Development Authority v. M—Z Construction Corp. (1982), 110 Ill. App. 3d 129, 142, 441 N.E.2d 1179, 1187.) The premise underlying the subrogation doctrine is that one who had indemnified another in pursuance of his obligation to do so is entitled to the means of redress held by the party indemnified against the individual causing the loss. (Economy Auto Insurance Co. v. Brown (1948), 334 Ill. App. 579, 588, 79 N.E.2d 854, 858.) However, a surety’s right of recovery from a third party through subrogation does not follow as a matter of course upon proof of the fact that the recompensed party could have recovered from the third party. Rather, it must appear that the third party participated in the wrongful act involved or was negligent in regard thereto, because the right to recover from a third party is merely conditional, in contrast to the right to recover from the principal, which is absolute. Moreover, the equities of the surety must be superior to those of the third party in order for the loss to be shifted to the third party. American Surety Co. v. Morton (E.D. Ill. 1961), 200 F. Supp. 82, aff’d (7th Cir. 1962), 311 F.2d 222.
I believe that Maryland Casualty’s allegations were clearly insufficient to demonstrate as a matter of law that it was entitled to be subrogated to the rights of Berger’s estate and recover from respondents the monies wrongfully expended from the estate. While the decision in the underlying action established that the conservator, Efron, had wrongfully transferred funds from Berger’s estate to respondents, this fact alone does not prove that respondents were involved in the improper transfers or negligent in regard to them. At the time Efron was appointed conservator, Gloria was still a minor and Deborah was only 21 years old. It was Efron who established the annual pattern of transferring monies from the estate to respondents for the various stated purposes. There was prior court approval for some of the transfers, and the court approved each of the annual accounts, which, with one exception, had been audited, and reflected all of the payouts. Regarding the gifts made to Berger’s grandchildren, they, of course, were very young children at the time that the gifts occurred. Under these circumstances, I conclude that there are genuine issues of material fact as to whether the equities here favor respondents or Maryland Casualty. Therefore, I believe that the summary judgment granted Maryland Casualty for its claims for money had and received and for a constructive trust should be reversed, and the cause remanded for further proceedings.
Finally, I address the appeal of Maryland Casualty and Sheila Seidmon, executor of Efron’s estate, from the trial court’s order denying their motion for conservator’s fees. I believe that the trial court erred in denying all conservator’s fees. I therefore disagree with the majority’s decision that the trial court’s finding was not manifestly erroneous.
Pursuant to statute, a conservator is entitled to receive reasonable compensation for his services (see Ill. Rev. Stat. 1977 through 1979, ch. 1972, par. 27 — 1; Ill. Rev. Stat. 1969 through 1975, ch. 3, par. 336). Such compensation is allowable for services rendered, but not for neglect of duty. (Nonnast v. The Northern Trust Co. (1940), 374 Ill. 248, 270, 29 N.E.2d 251, 263.) However, even if a conservator may have wrongfully disbursed money from the estate, he is not automatically barred from being compensated. (See In re Estate of Sargent (1934), 276 Ill. App. 312.) In determining reasonable compensation, the court should consider the size of the estate, the work done and the skill with which it was performed, the time required, and the advantages gained or sought by the services. Good faith, diligence, and reasonable prudence should also be considered, as should whether the conservator is guilty of willful misconduct in the administration of the estate. In re Estate of Rumoro (1980), 90 Ill. App. 3d 383, 388, 413 N.E.2d 70, 74.
In the present case, the trial court did not state any reasons for denying the petition for fees. It is undisputed that Efron never personally benefitted from his management of Berger’s estate. It is also clear that the estate grew substantially during the period that he was administrator. Further, the record reflects that Efron spent considerable amounts of time caring for Berger, his children, and his estate. While I agree with my colleagues that some of the disbursements made by Efron were improper, I do not believe that they necessarily evidenced neglect of duty or willful misconduct such as would preclude the award of any fees. I therefore conclude that this cause should be remanded for a hearing on fees.
Accordingly, I believe that the appeal involving Berger’s objections, No. 83 — 2875, should be affirmed in part and reversed in part. In appeal No. 84 — 1502, the summary judgment entered in favor of Maryland Casualty on its claims for subrogation should be reversed, and the cause should be remanded for further proceedings. In appeal No. 84 — 0204, I would reverse the trial court’s order denying the petition for conservator’s fees, and I would remand that cause for a hearing.