dissenting:
Because I believe that the trial court could have (and should have) ordered Cherry to return the $38,830.73 to Patsy, as executrix of Floyd’s estate, I respectfully dissent.
From February 1983 through mid March 2001, Cherry was the attorney for Patsy in her capacity as executrix of Floyd’s estate. Thus, his attorney fees were subject to the trial court’s scrutiny and approval or disapproval. See 755 ILCS 5/27 — 2 (West 2002); see also Devoy, 231 Ill. App. 3d at 888, 596 N.E.2d at 1343 (attorney fees in probate proceedings are subject to the trial court’s approval and discretion; reversing the trial court’s approval of additional attorney fees).
As the majority recognizes, once a trial court in a probate proceeding has disapproved or disallowed attorney fees, it may order that the attorney return the fees to the estate. See Minsky, 59 Ill. App. 3d at 977-78, 376 N.E.2d at 649-50; see also People ex rel. Chicago Bar Ass’n v. Templeman, 363 Ill. 152, 157, 1 N.E.2d 850, 852-53 (1936) (in which the supreme court, in the context of an attorney-disciplinary proceeding, recognized the trial court’s authority to enter an order to return disallowed attorney fees and held that “[djefiance, by an attorney representing the executor or administrator, of orders of the probate court to turn over money in his hands to an administrator appointed by [the court], constitutes a flagrant violation of his duty sufficient to warrant his disbarment”).
In addition, by virtue of the trial court’s May 2001 order that Cherry remain as an interested party in the proceedings, the court had plenary jurisdiction over him as to the ultimate disposition of the disallowed attorney fees. See 755 ILCS 5/1 — 2.11 (West 2002) (an “interested person” under the Act “means one who has or represents a financial interest, property right[,] or fiduciary status at the time of reference which may be affected by the action, power[,] or proceeding involved”); see also In re Estate of Miller, 334 Ill. App. 3d 692, 703, 778 N.E.2d 262, 271 (2002) (in which the appellate court concluded that the trial court had jurisdiction to award a judgment in favor of a joint tenant in certificates of deposit with the testator, even though the joint tenant was not a named party and did not participate in the citation proceedings; reasoning that the joint tenant was an “interested party,” who had a financial interest in the citation). In this case, Cherry clearly had a financial interest in the proceedings and actively participated in the hearings as to the United States’ final account.
Thus, the trial court here had the authority — once it determined that the $38,830.73 in attorney fees was disallowed — to order that Cherry return the fees to Patsy, who then would turn over the secured moneys to the United States. Under the circumstances of this case, the court should have done just that. In that regard, I note that the record shows that in April 1989, Cherry (at Patsy’s request) opened a separate account on the estate’s behalf, over which he had exclusive control. From April. 1989 until March 2001, Patsy had no access to estate funds and no control over how the funds were spent. According to Patsy, Cherry decided what bills would be paid and what checks would be written from the account. Cherry knew that the account contained money from the sale of collateral pledged to the United States and accrued interest thereon. Nonetheless, without prior court approval or the United States’ consent, Cherry received $38,830.73 in attorney fees from money that belonged to the United States as a secured creditor. Accordingly, I believe that the court erred by denying the United States’ request that the court order Cherry to return the disallowed attorney fees to Patsy as executrix.