FILED

January 30, 2014 Carla Bender NO. 4-13-0309 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Estate of FRANCES BOZARTH, ) Appeal from Deceased, ) Circuit Court of DENISE BOZARTH and LOREN BOZARTH, ) McLean County Cotrustees for the Harold D. Bozarth Residual Trust; ) No. 10P305 and LOREN BOZARTH, Individually, ) Petitioners-Appellants, ) v. ) JANET QUAIN and MARCIA SHANK, ) Coexecutors of the Estate of Frances Bozarth, ) Honorable Deceased, ) Elizabeth A. Robb, Respondents-Appellees. ) Judge Presiding. ______________________________________________________________________________

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.

OPINION

¶1 This appeal involves a claim for $100,800.79 brought by the children of Robert

Bozarth (petitioners) against the estate of Robert's stepmother, Frances Bozarth. When

Robert's father, Harold Bozarth, died in 1983, he bequeathed all of his personal property to

Frances "to use and enjoy" during her lifetime, with the remainder to Robert's children. As

executrix of Harold's estate, Frances filed a final report indicating that she personally received,

among other pieces of real and personal property, $100,800.79 in "mortgages, notes[,] and

cash" from Harold's estate. Frances died in October 2010. In June 2011, petitioners filed a

claim against Frances' estate seeking recovery of the $100,800.79 in life-estate property referenced in the final report.

¶2 Following a November 2012 hearing, the trial court denied petitioners' claim,

finding that (1) petitioners failed to prove by a preponderance of the evidence what exactly the

personal property listed in the final report consisted of, and (2) even if petitioners were able to

identify the personal property referenced in the report, Frances had the right to consume that

property during her lifetime.

¶3 Petitioners appeal, arguing that (1) the trial court erred by finding that they failed to

identify the personal property referenced in the final report, and (2) Frances was not entitled to

consume the principal of those financial assets during her lifetime. We affirm in part and reverse

in part.

¶4 I. BACKGROUND

¶5 A. The Parties

¶6 Harold and Frances married in 1956. They lived together on Harold's farm until

Harold's death in February 1983. Although Harold and Frances had no children together, Harold

had a son, Robert, from a previous marriage. Robert had five children prior to Harold's death:

Loren Bozarth, Randy Bozarth, Douglas Bozarth, Dee Ann Gragg, and Denise (Bozarth) Smith.

¶7 B. Harold's Will and the Probate Proceedings

¶8 Harold's will, which he executed in October 1974, provided, in pertinent part, as

follows:

"SECOND: After the payment of my just debts and burial

expenses, I will, devise and bequeath all of my property of every

kind, nature, and description, and wherever situated, and any

-2- property in which I have an interest, to my beloved wife, Frances

Bozarth[,] to be hers to use and enjoy for and during the term of her

natural lifetime.

***

FOURTH: At the death of my wife, all that remains of my

estate *** I will, devise[,] and bequeath the same to any trustee

nominated by my said wife, *** and all such property shall be held

for the benefit of my son[,] Robert F. Bozarth[,] and the heirs of his

body until the youngest of his children attains the age of forty years,

at which time the entire corpus, and any accumulation, shall be

distributed equally among my grandchildren, after which the trust

shall cease."

(We note that all of Robert's children attained the age of 40 years prior to Frances' death.)

¶9 On March 2, 1983, Harold's will was admitted to probate and Frances was

appointed executrix. On that same day, Frances filed an inventory of Harold's real and personal

property, which consisted of a list of five assets: (1) a Corn Belt Bank checking account worth

$5,585.43; (2) a Corn Belt Bank "purchase agreement" worth $50,000; (3) a Corn Belt Bank

money market account worth $45,215.36; (4) an interest in an oil well in Mount Carmel, Illinois;

and (5) Harold's farm, which consisted of 225.3 acres in McLean County, Illinois. The inventory

did not include a dollar value of Harold's farm or his interest in the oil well. The value of the Corn

Belt Bank assets totaled $100,800.79.

¶ 10 In August 1984, Frances filed a final report as executrix of Harold's estate in which

-3- she stated, in pertinent part, that she personally received (1) joint tenancy property worth

$215,158.99; (2) "mortgages, notes and cash" worth a total of $100,800.79; and (3) "personal

property including grain and other items of personal property" worth a total of $67,248.38.

Frances also indicated that, pursuant to the terms of Harold's will, she paid $5,000 to Robert and a

further $23,555.44 to other parties for Harold's end-of-life expenses, such as burial costs and

attorney fees.

¶ 11 C. Frances' Death and the Probate Proceedings

¶ 12 Frances died in October 2010 and, on Robert's petition, her will was admitted to

probate that same month. Robert asserted in his petition for probate that Frances' estate included

approximately $357,274.46 in personal property and $780,000 in real property. Robert accepted

the office of executor.

¶ 13 1. Petitioners' Claims Against the Estate

¶ 14 In June 2011, petitioners filed four claims against Frances' estate. The first three

claims are not at issue in this appeal. Petitioners brought the fourth claim in their individual

capacities as Robert's children.

¶ 15 In the fourth claim, which consisted of two parts, petitioners asserted that they, as

remaindermen, were entitled to personal property that Frances received from Harold and held as a

life tenant, specifically (1) "mortgage notes and cash in the amount of $100,800.79" and (2)

"personal property, including grain and other items of personal property in the amount of

$67,248.38." (On appeal, petitioners have forfeited the second part of their claim by failing to

challenge the trial court's ruling as to the $67,248.38 in grain and other items of personal property.

Although petitioners asserted at oral argument that they were entitled to the full $168,049.17, the

-4- arguments in their brief focus exclusively on the $100,800.79 claim for mortgages, notes, and

cash. See Vancura v. Katris,

,

(2010) ("[T]he failure to

argue a point in the appellant's opening brief results in forfeiture of the issue.").)

¶ 16 Robert died in September 2011, after petitioners filed their claims but before the

hearing. Pursuant to Frances' will, the trial court appointed Quain and Shank as successor

co-executors of Frances' estate.

¶ 17 2. The Hearing on Petitioners' Claims

¶ 18 In November 2012, the trial court conducted a two-day hearing on the petitioners'

claims. During that hearing, the vast majority of evidence presented related to the claims not at

issue in this appeal. In support of their claim for the $100,800.79 in "mortgages, notes and cash"

at issue, petitioners offered into evidence (1) Harold's will, (2) the inventory Frances filed when

Harold's will was admitted to probate, and (3) Frances' final report as executrix of Harold's estate.

¶ 19 At the close of the hearing, petitioners argued that Harold's will made Frances a

testamentary trustee of the $100,800.79 of financial assets at issue, and that Frances had certain

fiduciary duties as to that property from the time of Harold's death in 1983 until her own death in

2010. However, conceding that Harold's will was likely insufficient to establish a bona fide

testamentary trust, petitioners argued in the alternative that Frances held a life estate in the

$100,800.79 of financial assets, and that as the holder of the life estate, she was not entitled to

consume the principal. (Petitioners also conceded that, pursuant to Harold's will, their recovery

should be reduced by $28,555.44 to account for the $5,000 bequest to Robert and the $23,555.44

cost of Harold's end-of-life expenses.)

¶ 20 The estate argued that, despite the single reference in Harold's will to Frances as a

-5- "trustee," the will did nothing to establish a testamentary trust in the property at issue. The estate

asserted that, as the holder of a life estate, Frances was entitled to consume the life-estate property

because, otherwise, Frances could not "use" and "enjoy" it as Harold intended.

¶ 21 Following the presentation of evidence and argument, the trial court took the matter

under advisement.

¶ 22 3. The Trial Court's Ruling on Petitioners' Claims

¶ 23 In January 2013, the trial court entered a 10-page written order, denying the

petitioners' claims. The court, citing Thompson v. Adams,

,

(1903), found that although Harold's will referred to Frances as a "trustee," neither the will nor any

action of Frances ever properly established her as a trustee of either the personal or real property

conveyed by Harold's will.

¶ 24 The court then found that the petitioners' claim for $100,800.79 failed for two

reasons. First, petitioners had "not proved by a preponderance of the evidence what exactly the

personal property listed in the Final Report consisted of." Specifically, petitioners "made no

efforts to trace any property or cash or mortgages or notes or other assets which might have been

the subject of the listing in the Harold Bozarth Final Report." Second, citing Walker v. Pritchard,

,

(1887), the court found that even if petitioners did identify the personal

property referenced in the August 1984 final report, Frances had the right to consume such things

in the life estate because they cannot be enjoyed without consuming them.

¶ 25 This appeal followed.

¶ 26 II. ANALYSIS

¶ 27 On appeal, petitioners argue that (1) the trial court erred by finding that they failed

-6- to identify the personal property referred to in the final report and (2) Frances was not entitled to

consume the principal of those financial assets during her lifetime.

¶ 28 Initially, we note that although Harold's will created both France's life estate and

petitioners' interests as remaindermen, petitioners sought recovery of the life-estate property at

issue by filing a claim in the probate proceedings of Frances' will. However, because Frances was

only a life tenant, her will was not controlling over the disposition of the life-estate property upon

her death. Jones v. Hendricks,

,

(1982) ("[A]

life estate holder cannot convey a greater interest in the property than is possessed by the life estate

holder."). Instead, upon the termination of a life estate, the title and right of possession vest

automatically in the remainderman. Accordingly, to the extent the two wills differed, Harold's

willCnot Frances'Cwas controlling over the disposition of life-estate property in this case.

¶ 29 A. Burden of Proof and Standard of Review

¶ 30 A party bringing a claim against an estate bears the burden of proving that claim by

a preponderance of the evidence. In re Estate of Pohn,

,

(1966); Floyd v. Estate of Smith,

,

(1943).

¶ 31 When the court's denial of a claim turns upon the trial court's findings of fact, we

will reverse only if those findings were against the manifest weight of the evidence. In re Estate

of Lashmett,

,

(2007). However, because

petitioners based their claim to the $100,800.79 on documentary evidence only, and because none

of the courtroom testimony supported or rebutted that evidence, we review the court's denial of

that particular claim de novo. Rosenthal-Collins Group, L.P. v. Reiff,

,

(2001).

-7- ¶ 32 B. Petitioners Proved That Frances Took a Life Estate in Corn Belt Bank Assets Worth $100,800.79

¶ 33 Following Harold's death in 1983, Frances filed a sworn inventory in which she

stated that Harold's estate contained, in pertinent part, (1) a Corn Belt Bank checking account

worth $5,585.43, (2) a Corn Belt Bank "purchase agreement" worth $50,000, and (3) a Corn Belt

Bank money market account worth $45,215.36. The total value of those three financial assets

was exactly $100,800.79. In August 1984, Frances indicated in her sworn final report that she

personally received $100,800.79 in "mortgages, notes[,] and cash" from Harold's estate.

¶ 34 The only reasonable conclusion to be drawn from this evidence is that Frances took

a life-estate interest in $100,800.79 worth of Corn Belt Bank financial assets. The petitioners

were not required to prove that those specific Corn Belt Bank accounts were still open at the time

of Frances' death, nor were they required to trace those assets to cash existing in Frances' estate at

the time of her death. Petitioners satisfied their burden by proving that $100,800.79 in financial

assets entered the life estate corpus pursuant to Harold's will.

¶ 35 C. Frances Was Not Entitled To Consume the $100,800.79 at Issue

¶ 36 Harold bequeathed all of his personal property to Frances "to be hers to use and

enjoy for and during the term of her natural lifetime." Harold's will further bequeathed $5,000 to

Robert. The will then provided that at Frances' death, "all that remains of my estate after said

$5,000 bequeath to my son *** shall be distributed equally among my grandchildren." Although

it might seem plain that the right to "use and enjoy" life-estate property would include the right to

liquidate and spend the financial assets at issue, Illinois law provides otherwise.

¶ 37 In Quigley v. Quigley,

,

(1938), the testator

conveyed a life estate to her brother using the following language: " 'I hereby give, devise and

-8- bequeath to my brother *** all my property, real estate, personal and of whatever form for his

personal use during his lifetime.' " The will then provided for the payment of the testator's debts

and end-of-life expenses, and directed a payment of $100 to the Catholic Extension Society.

The will further provided as follows: " 'After the death of my brother, I wish that whatever is left of

my estate be divided among my four nephews.' "

¶ 38 The life-estate property at issue in Quigley consisted of $29,000 worth of capital

stock in various corporations, bank deposits, checks, and a promissory note.

The court held

that the language bequeathing the property to the testator's brother " 'for his personal use during his

lifetime,' " was insufficient to vest the brother with the right to consume the financial assets at

issue.

,

. The court was of the opinion "that a gift 'for his personal use

during his lifetime' has no different meaning than 'for life.' "

We find no distinction between

this language from the will in Quigley and the language of Harold's will bequeathing property to

Frances "to be hers to use and enjoy for and during the term of her natural lifetime." The

additional word "enjoy" is not so different from the word "use" so as to give Harold's will a

substantively different meaning than the will in Quigley.

¶ 39 The Quigley court also noted the rule that "when a will creating a life estate

contains a subsequent clause granting remaindermen whatever is left of the estate, no power to

dispose of the corpus of the estate is created unless the expression 'whatever is left' can be given no

other reasonable meaning than that of a grant of such power of disposal."

,

(citing Vanatta v. Carr,

,

(1906)). The court in Quigley

concluded that the language "whatever is left" referred to whatever was left after the payment of

debts, end-of-life expenses, and the $100 bequest to the Catholic Extension Society.

18

-9- N.E.2d at 188. Similarly here, the language in Harold's will, "all that remains," should be read as

referring to all that remains after the payment of Harold's debts, end-of-life expenses, and the

$5,000 bequest to Robert.

¶ 40 Finally, the court in Quigley addressed the estate's argument that "the character of

the testatrix's property is such that unless the power of disposal is granted, the life tenant can

receive but little benefit from the estate." Id. at 155-56,

. Specifically in

Quigley, the estate argued that $500 of life-estate property was "cash in [the] bank, upon which no

interest is being paid, and that it is absurd to think that the testatrix would want [the life tenant] to

keep the money on deposit during his entire life just for the benefit of the remaindermen."

,

. The court disagreed, finding this contention "predicated upon an

erroneous view of the law."

The court stated that "[i]t is well settled that a gift of the use of

money to a life tenant is a gift of interest and not of the corpus."

¶ 41 We conclude that the supreme court's decision in Quigley controls the resolution of

this case. Although we recognize that because "wills are seldom alike, precedents in other will

cases are seldom of controlling importance in determining a testator's intent" (In re Estate of

Panzeca,

,

(1989)), we simply find no

distinguishable facts in the record to permit the conclusion that Frances was entitled to consume

the financial assets at issue.

¶ 42 In Illinois, when life-estate property consists of cash or its equivalentCsuch as the

Corn Belt Bank assets in this caseCthe life tenant is entitled to consume the interest that accrues

during her lifetime, but not the principal. If the testator intends to grant the life tenant power to

invade and consume the principal, he must so state in explicit language. See Quigley, 370 Ill. at

- 10 - 153,

(" 'for his personal use during his lifetime' " held inadequate to confer a right

to consume the principal); Welsch v. Belleville Savings Bank,

(1879) (" 'for her

own free, independent and uncontrollable use and benefit for the term of her natural life' " held

inadequate to confer a right to consume the principal); Thompson v. Adams,

,

(1903) (" 'for the sole use and benefit of my wife, Elizabeth Adams, so long as she shall live

and remain my widow' " held inadequate to confer a right to consume the principal); Strickland v.

Strickland,

,

, 593 (1916) (" 'for her use during the term of her natural

life, she to have absolute control of same during her lifetime' " held inadequate to confer a right to

consume the principal).

¶ 43 The testator must explicitly grant the life tenant authority to invade and consume

the principal of a cash life estate because, as Quigley suggests, cash does not fall into the category

of personal property that cannot be enjoyed without consuming it. Quigley,

,

. The estate, citing the supreme court's decision in Walker,

,

, argues that the $100,800.79 at issue in this case was life-estate property that could only be

enjoyed through consumption. In Walker, the decedent's will created a life estate in certain items

of farm property, including horses, cows, tools, and grain. When the life tenant died after 15

years of life tenancy, none of those specific items of property remained. The court held that "[a]

life estate in personal property gives the donee a right to consume such articles as can not be

enjoyed without consuming them, and to wear out by use such as can not be used without wearing

out."

,

. The court concluded that during the life-tenancy period "the

articles mentioned either died or were worn out, or used and consumed for legitimate farm

purposes."

- 11 - ¶ 44 Unlike the cash at issue in this case, the personal property at issue in Walker was at

risk of dying, spoiling, or diminishing in value during the life-tenancy period. In this case,

Frances could have simply left the money in the bank and spent the interest that accrued during her

lifetime. Moreover, the court in Quigley explained additional options available to a life tenant

holding a cash life estate:

"A life tenant has, under proper restrictions, the right to invest and

reinvest money or its equivalent in order that his bequest may be

made remunerative. It would be idle to say that he must leave such

assets dormant. The executor or trustee, as the case may be, is

bound to invest the money for the benefit of the usee. If the life

tenant desires to have possession of the property he may do so under

such reasonable restrictions as the courts may impose. The matter

of requiring security is now, ordinarily, one of discretion with the

court having jurisdiction over the property." Quigley,

,

.

As remaindermen, petitioners are entitled to $100,800.79, a sum equivalent to the amount of

financial assets that entered into the life-estate corpus at the inception of the life-tenancy period.

Whatever interest or return on investment that may have accrued from those assets during Frances'

lifetime was hers to use and enjoy.

¶ 45 As a final matter, we note that the issue presented in this appeal concerns but one

component of a complicated array of claims petitioners brought against the estate. The vast

majority of the parties' evidence and arguments at the hearing focused on claims that the trial court

- 12 - resolved, and from which neither party appealed. Although we reverse the court's judgment as to

the narrow issue before us, we wish to express our appreciation for the court's detailed and

thoughtful written order, which we found very helpful during our consideration of the issues,

evidence, and arguments in this case.

¶ 46 III. CONCLUSION

¶ 47 For the foregoing reasons, we affirm the trial court's denial of petitioners' claims

except as to the $100,800.79 at issue in the fourth claim. In accordance with their concessions at

trial and on appeal, petitioners are entitled to a judgment of $100,800.79, less $28,555.44 for the

costs of Harold's end-of-life expenses ($23,555.44) and the bequest to Robert ($5,000).

¶ 48 Affirmed in part and reversed in part.

- 13 -