morning itself are honored to be here today and it is a beautiful day today after going through the worst drought since one nine hundred thirty six the rain clouds are a great thing it's better than a sunny day today or the fourth both completed their second law degree at university of illinois jew khan is a member now of the new york or and soon u of i will be and that they are in terms of the office and they have worked on this similar to i think presidential and vice presidential debates when you ask a question i'll try to answer it and not go off in a different direction if i don't like the police asked the court to redirect me so any time you'd like to interrupt  prepared to respond to any questions i'd like to start with a review of just a few of the pertinent facts that i believe are and consideration today this is not a million dollar issue or a multimillion dollar issue in terms of dollars however the issues involved in this occur and practically personal effects often have more importance and significance than the beneficiaries then do the ass it's assets that are measured by dollars and because this death gordon was the last to die his will contained a provision that the personal effects the personal property the tangible personal property was to be settled up among the four children within three months of his passing obviously with the petition to admit not occurring in a timely way that ninety day over well before the executor was appointed almost one year after his death there was a motion to sell the executor at that time was an independent representative head was then waived and the court the lower court was then entitle to the substitute the word court's this question in terms of acting upon the motion in this case the statute provides that when a child indicates that they would like it in kind distribution of the tangible personal children don't agree on one well that has not been determined whether the children could agree or not agree because of the conduct of the executor in this case june broughton was never given an opportunity to see the property and then mentor it wasn't provided to her of the property at the time of the motion  it had been you know on nearly three years since her mother's passing it had been over a year since her father's passing we'll have a situation where she said i want you know th exposing the items to the public means that she would not only have to out bit her siblings if they had an interest but the entire world would be eligible for a bit of the option and i  believe the purpose of the statute in the purpose of the provision in the will is to give the beneficiaries a chance to make the vision of some sort among themselves in a way and to not duty it is to get the highest price may decide to break up the set or there could be somebody in the public trying to assemble it say whatever and they would not seem to me to be fair based on the statute then the provisions of the wealthy require june bratton to outbid anybody in the public that need need would have a desire to have those items for the carcass of the price which is sometimes what happens in a second hand goods store and say what are you going to give me for all this stuff absolutely but there was never an opportunity given to june bratton to propose a distribution or  access to the property when you say that she selected piano or some other item of personal interest she was relying entirely on her memory from  y in order to preserve her expectancy her interest here is simply preserving and expectancy that is most likely the result at the conclusion of other issues involving this estate and i believe it is fair and reasonable for her to do that i believe that the conduct of the executor was clearly to sever from any sentimental attachment that she might have to items of personal property that were contained in the home and so she was completely denied access from those items and the reason an agreement didn't occur within ninety days is because first of all the will was not admitted in the probate n t l nearly two hundred seventy days after her death so the ninety day period was was already over by that time and then it was nearly a year or a specific description of what's there has not been provided and for these reasons we believe that the citizen of the lower beneficiaries or the executor if they have no interest and three fourths of the personal property items they can have a public sale of of what's remaining but first she needs to be given an opportunity to propose an agreement an agreement is created by mutual assent there's a meeting of the minds and when there has not been communication  she couldn't ask her things she wore because you didn't know what was there but your argument no i mark i'm suggesting your honor that it's unfair for her to be expected to propose a reasonable distribution without having either personally inspected the premises and seen what's there or been given the lest of what's there that is subject to the division to expect her to rely on her memory this covered well obviously there's disagreement and tension here between the siblings separate and apart from that what reason can you point to understanding that you take the contrary remain i have a practical answer to that and i f a suggest this but i will anyway because i believe that's what's appropriate here so much of the court's time at the lower level is out of the boat if the family law issues dissolution of marriage and those types of cases the court makes decisions like this somewhat of what was made here those don't carry over have application in probate and i believe that  there could have been a mixing of the two substance of areas of the law you mean by that the kind of arguments that go or in divorce cases in the court get sort of fed up with the doesn't want to deal with people dividing up personal property i'm not sure i'm i understand what you mean i'm suggesting your honor a little bit kinder explanation of it and family law it may be appropriate for the court to say this isn't need  made that actions need of her in this manner needs the progress so i'm going to order based on the suggestion of one of the parties i'm going to order this to occur sort of or say or whatever and that's  end the response to the motion that issue was even raised if if if the june was considered to be untrustworthy arrangements could be made information and provide nothing as a serious breach of that duty and that's what occurred in this case now getting into the thinking of the lower court would be a difficult aspect to figure out i believe it was under the standard of review here i believe it is something that clearly can be reversed but even if a higher standard of abuse of discretion were off i believe it was an abuse of discretion i'm not suggesting worse than that but sometimes apples and oranges and the law get mixed and it will or cork act in the best of good faith but not be applying the correct body of law that applies to the case and i believe that's the fairest explanation of what happened decided that you know we needed to get these file there there was no particular delay on behalf of the sector exactly i've been trying to stall or delay anything it was also found through some diligence that some of the shares of stock which are go do understand that there are larger issues at play here but it's pretty easy to determine from the very least that there's i mean this is not a happy fa a list of things i wanted to keep i probably could remember all the things that might have meant something to me even if i went room by room i bet i would leave him thinking so how is she supposed to do that in response to that le and that motion no was filed on november seventeenth of two thousand and eleven right and we did and we did oppose that because we didn't see it at the time  what if that motion from really relied upon rule two fourteen which the appellant leaves affords you the power gap to me to inspect the residence but are you is if you look at the rectory at that time number one there was the state where somebody wants to see the house some beneficiary on their answers no well he be given by me make two points one point is given regarding the stroke discretionary power it's mandated and will the problem be sold if there's no agreement within the three month period and it's three months after we file the plain language of the will it's three months after the  of lack of capacity in the new informs because lack of the past known do influence which are the basis of the petitions that are on file in this loop in this in this proceeding or to determine as of the time the documents are sign illicit medicines i don't know what all that alleged and the executor has not found any evidence of that we actually believe there was a period of time between the time the first so were passed away that was helen and then the second bor warden we believe cleaned out a large part of the contents of the residence and you know we don't know where they're at him but we can't we don't we can't account for those because the more of their theory so we're trying to do the best thing we going to be the topic of a petition or the appointment of an executor and it suggests that there would be an image or it prepared well the women tory was prepared and tell after the motion to sell and out the house if if the executor wasn't there during his lifetime seeing that it was cleaned out i don't know how the executor would know that the ninety year old man up so i would say that as certainly done a defense to what should occur in this case which is opportunity to examine the property and issue and to propose a and kind distribution as long as she is given an opportunity and exercise a personal parker well that would be and reasonable decision if she in good faith so lacks genuinely twenty five percent or less of what's there and they say no we we don't want you to have these things at all  that's not following the will either party's or church and all agreements are supposed to exercise their faith and fair dealing entail she makes a proposal i can't see any reason why we need to assume that they're going to say simply no and last edition or under the presumption that everybody involved in this is going to take a position to treat june as rough and as harsh as humanly possible i don't believe that the probate code allows that sort of this is in making certainly not by the executor executor ought to be arguing and june's favor something that should be considered and not rejected because of a feeling of animosity or bad blood for these reasons we believe that the or court should be reverse what was proposed is specifically inconsistent with the statute it's inconsistent with the intentions expressed in the last one testament it's inconsistent with any notions of fair dealing in good faith i'm in sense justice fulfillment of to share duty and this and it's a total disregard for the priceless sentimental attachment that