In re Matthews

409 Ill.App.3d 780

948 N.E.2d 187

350 Ill.Dec. 118

In re ESTATE OF Robert James MATTHEWS, Deceased (Cheryl Herbeck, Petitioner–Appellant, and Kenneth W. Radamacker, Respondent–Appellee).

No. 1–10–1427.

Appellate Court of Illinois, First District, Fourth Division.

March 24, 2011.Rehearing Denied June 1, 2011.

Kienlen & Pietsch, Wheaton, IL (J. Laurence Kienlen), for Petitioner–Appellant.Law Offices of Dennis L. Karns, Chicago, IL (Dennis L. Karns), for Respondent–Appellee.

[350 Ill.Dec. 120 , 409 Ill.App.3d 781] OPINION

Justice PUCINSKI delivered the judgment of the court, with opinion.

Petitioner Cheryl Herbeck appeals the trial court's denial of her petition to vacate an order allowing respondent Kenneth Radamacker to recover the real estate expenses he incurred on property bequeathed to him by the decedent, Robert Matthews, from the residue of the decedent's estate. On appeal, she argues that the trial court erred in denying her petition because decedent failed to specifically provide for the payment of real estate tax expenses from his estate in his last will and testament. Accordingly, section 20–19 of the Illinois Probate Act of 1975 (Probate Act) (755 ILCS 5/20–19 (West 2006)) bars respondent from recovering the real estate expenses he incurred on the bequeathed property from decedent's estate. For the reasons detailed herein, we reverse the judgment of the trial court.

BACKGROUND

Decedent Matthews died testate on October 12, 2007. His last will and testament, dated June 4, 2004, was admitted to probate on February 11, 2008. In his will, the decedent bequeathed $20,000 and real estate located in Sarasota, Florida, to respondent and named the petitioner the sole residuary legatee. Decedent's will contained the following provision:

“I give my Executor or Successor–Executor the following powers and discretions, in each case to be exerciseable without court order:

* * *

(e) To pay all governmental charges, taxes or liens imposed upon my estate or upon the interest of any and all beneficiaries hereunder by any law of any state, foreign state or federal government, relating to the transfer of property by descent or devise, and I do further direct that all such charges, taxes and liens be considered and treated as expenses and costs of

[350 Ill.Dec. 121 , 948 N.E.2d 190]

administering my estate and be paid out of the same before distribution thereof.”

Title to the Florida property was transferred to respondent on March 13, 2009. Respondent subsequently filed a claim against the decedent's estate in which he sought reimbursement for the money he paid to maintain the property, including the real estate taxes he paid on the property. Respondent indicated that he paid delinquent real estate taxes for 2006 amounting to $12,702.30; $12,056.01 in delinquent real estate taxes for 2007; and $10,918.75 in delinquent real estate taxes for 2008; and he advanced $1,782 for the 2009 fiscal year. Accordingly, respondent sought to recover $37,459.06 that he had paid to satisfy the property's real estate tax obligations from decedent's estate.

On November 10, 2009, the executor of decedent's estate agreed that respondent should be compensated for the real estate tax expenses he incurred on the Florida property from the proceeds of decedent's estate. Accordingly, the court entered an agreed order allowing respondent to recover the $37,459.06 sum that he paid in real estate taxes on the Florida property. Thereafter, petitioner filed a petition to vacate the trial court's order allowing respondent's claim pursuant to section 2–1401 of the Illinois Code of Civil Procedure (Civil Code) (735 ILCS 5/2–1401 (West 2006)), a copy of which does not appear in the record on appeal.

On May 17, 2010, the trial court presided over a hearing on petitioner's section 2–1401 petition to vacate respondent's claim against decedent's estate. Following that hearing, the transcripts of which also do not appear in the record, the trial court entered a written order denying petitioner's petition, finding: “The court finds that the decedent's will expressly provided for payment of the real estate taxes out of the residue of his estate and therefore the estate is responsible for the payment of the real estate taxes.” This appeal followed.

ANALYSIS

On appeal, petitioner argues that the trial court erred in denying her section 2–1401 petition to vacate respondent's claim against decedent's estate. Specifically, she argues that the trial court erred in permitting respondent to recover the real estate taxes he paid on the Florida property from decedent's estate because decedent's will did not expressly provide for the payment of real estate taxes encumbering the property he bequeathed to respondent. Because section 20–19 of the Probate Act (755 ILCS 5/20–19 (West 2006)) bars an inheritor from obtaining reimbursement of real estate taxes encumbering real property unless expressly provided for in the decedent's will, petitioner argues that respondent may not recover the real estate tax expenses he incurred on the property.

Respondent, in turn, argues that decedent's will sufficiently expressed his intention to have the delinquent real estate taxes on the Florida property be paid from the residue of his estate. Accordingly, he argues that the trial court correctly found that decedent's will expressly provided for the payment of real estate taxes out of the residue of his estate.

Before we address the substantive merit of this appeal, we note as a threshold matter that jurisdiction over this appeal is proper as we are reviewing the propriety of the trial court's denial of petitioner's section 2–1401 petition. A trial court's ruling on a section 2–1401 petition constitutes a final order and vests a reviewing court with jurisdiction pursuant to Supreme Court Rule 304(b)(3). Ill. S.Ct. R. 304(b)(3) (eff.Feb.26, 2010);

[350 Ill.Dec. 122 , 948 N.E.2d 191]

Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 101–02, 267 Ill.Dec. 58, 776 N.E.2d 195 (2002).

As another preliminary matter, we observe that neither petitioner's petition to vacate respondent's claim pursuant to section 2–1401 of the Civil Code nor the transcript of the hearing that the court conducted on her petition appears in the record on appeal. Petitioner did attach a copy of her petition to the appendix of her brief; however, it is well established that the record on appeal cannot be supplemented by attaching documents to the appendix of a brief. Whittmanhart, Inc. v. CA, Inc., 402 Ill.App.3d 848, 852, 342 Ill.Dec. 393, 932 N.E.2d 520 (2010). It is the burden of the appealing party to provide the reviewing court with a sufficiently complete record to allow for meaningful appellate review. Foutch v. O'Bryant, 99 Ill.2d 389, 391–92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984); Lewandowski v. Jelenski, 401 Ill.App.3d 893, 902, 340 Ill.Dec. 810, 929 N.E.2d 114 (2010). As a general rule, “[a]n issue relating to a circuit court's factual findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record of the proceeding.” Corral v. Mervis Industries, Inc., 217 Ill.2d 144, 156, 298 Ill.Dec. 201, 839 N.E.2d 524 (2005). In the absence of a sufficiently complete record, a reviewing court will resolve all insufficiencies apparent therein against the appellant and will presume that the trial court's ruling had a sufficient legal and factual basis. Foutch, 99 Ill.2d at 391–92, 76 Ill.Dec. 823, 459 N.E.2d 958; Lewandowski, 401 Ill.App.3d at 902, 340 Ill.Dec. 810, 929 N.E.2d 114. While we will keep these principles in mind, we observe that the trial court issued a detailed written order rejecting the arguments in petitioner's petition, finding that decedent's will expressly provided for the payment of real estate taxes out of the residue of the estate. Accordingly, we have sufficient information to review the propriety of the trial court's ruling on petitioner's section 2–1401 petition.

State law presumes that the creator of a will or trust had knowledge of the law governing the document at the time it was executed and drafted the document in conformance with the law. Bank of America, N.A. v. Carpenter, 401 Ill.App.3d 788, 797, 340 Ill.Dec. 919, 929 N.E.2d 570 (2010). In construing a will, the court's objective is to ascertain the testator's intent and to effectuate that intent, provided that it is not contrary to public policy. In re Estate of Feinberg, 235 Ill.2d 256, 268–69, 335 Ill.Dec. 863, 919 N.E.2d 888 (2009); Bank of America, 401 Ill.App.3d at 797, 340 Ill.Dec. 919, 929 N.E.2d 570. To ascertain the testator's intent, the provisions of a will should not be considered in isolation; rather, the court must examine the document in its entirety. Bank of America, 401 Ill.App.3d at 797, 340 Ill.Dec. 919, 929 N.E.2d 570. The interpretation of a will raises an issue of law and is subject to de novo review. In re Estate of Williams, 366 Ill.App.3d 746, 748, 304 Ill.Dec. 547, 853 N.E.2d 79 (2006).

Real estate taxes constitute a lien against the property subject to those taxes. 35 ILCS 200/21–75 (West 2006); In re Estate of Light, 385 Ill.App.3d 196, 200–01, 324 Ill.Dec. 43, 895 N.E.2d 43 (2008). The Probate Act provides when a beneficiary is bequeathed real estate subject to an encumbrance, that beneficiary “takes [the property] subject to the encumbrance and is not entitled to have the indebtedness paid from other real or personal estate of the decedent” unless it is “otherwise expressly provided by decedent's will.” (Emphasis added.) 755 ILCS 5/20–19 (West 2006). This provision in the Probate Act “operates in derogation of the common law doctrine of exoneration, which

[350 Ill.Dec. 123 , 948 N.E.2d 192]

provided that a devisee of real estate mortgaged or otherwise encumbered by a testator in his lifetime was entitled to a discharge of the lien from [the] testator's personal estate unless he directed otherwise in his will.” Griffin v. Gould, 72 Ill.App.3d 747,...