of law the standard of review is the noble and the bird case specifically tells us that in order to determine the appropriate standard we must simply we must not simply look to the type of ruling being applied but we must analyze the contentions made by parties and it's important as we look at the transcript and review this case about think about the reasons why we have a manifest we usually stand and that standard is to give great deference to the point when the trial court is able to weigh evidence look at the witnesses judge credibility and make those types of the terminations that are best made in a live setting and then those cases when those issues are very important it's important to give some deference to the lower court but here the proceedings in the way they happened show that this case was decided as a matter of law i'm going to go certainly didn't get a trial in this case there were no witnesses or even affidavits presented or there were only four conflict of interest as the trustee of the trust and as the executor of the state there is no finding anywhere in the record of one god he has interfered with the objective of ministration of the estate which is the standard the court has to use here the only fines that that helen has a conflict of interest between her duties as the state representative and her personal interest as the surviving branch or under the tru she did harm predators because she's failing to know all have all of the assets for state which would of course include trusts as it could include trust assets gone but they gain the trust is something that separate from the estate it's helms position that that is a separate thing the only way that they can ever have trust assets as part of the estate is if mr orcutt sprog claim is is found to be successful but that hasn't even started on that part of it yet your honor we don't know all there is out there is an allegation of fraud and so to suggest that helen has the executor has a duty to engage in what would be fair to say then based on what you just stated and that's true for several reasons one is that these parties were all involved in litigation before earl passed away to the funds are at the bank she's not the trustee the funds are at the bank and are going to stay the bank the bank has said we're not turning them over  happened bad anyway so anyone can look at this this is not what the press they wanted in fact felons do to get the executor or any executor is their primary objective is to find in and under the obligations of the the apa time of the appointment of the executor or in some sort of action taken later by the executor to to show support enough eason's or something like that when in a case like this all of the things th executor before they filed anything to try to gesture proceeding as as the executor and so they knew of this potential conflict of interest and they didn't act on that in pursuit of the supreme court rule three zero four p one  asset with respect your honor i disagree with that he did not say that at all and said there is a conflict of interest which compels for removal as the executor he did not make any findings that she had taken any action or inaction since her appointment that our state when i say that's what the trial for said was we may have been doing argument but didn't the trial court into the fact that this didn't relate to the initial appointment i don't think i  versus when her initial appointment took place and that may happen in the back and for your honor i certainly won't be corrected on that however that the order that gets injured does not speak of any action on her part which is required that she estate what would they have to do differently that's the only thing they can do because that's the only thing that gets money out of the trust account and put it back in a state funds where mr offered without  any action opposing any claims made she hasn't done anything to those claims they will work themselves out these talks but she did go through the normal probate of the petition for and there was no objection by anyone even after most of it in the bank bio claims against the estate they wait months and months even after that before making any sort of claim that she shouldn't be executor and if she and do ask for the trust assets and she did that the bank has refused the bank has continued to refuse and then you have a lawsuit and that's fine i'm we work that out through the court system and here she maintains that in one scenario she gets the fines in the other scenario the estate if it's right that's the result yes so doesn't it put her in awkward position time and there are conflicts of interest that are built in we don't agree that there is accomplished here but if there is one it requires more than there being offered up or down there was a banquet there's got to be more there's got to be some sort of action taken in the words the case is used is that she engaged in activities that are on the eve of the administration of this of this state and she has not done that there is no finding kullman you know have a defense about that side of the court where is the evidence that has the witnesses and makes a determination but in order to get at that part of it you still have to go through the requirements of the illinois supreme court rule three or four feet and the fireman's of section two deaths of three of the civil procedure which require that within thirty days you have to have objected to the appointment so if we get past that we have a hearing then there is supposed to be a hearing a citation supposed to be issued by twenty three daschle the probate code and then the court is allowed to make a determination based on the ten unrated factors in section twenty three days to the probate code  but they all come down to the same thing was there a demonstration and finding that there was an interference with the objective of ministration the state there was no such finding made here there was no the court ruled that there was no nothing there to make the ministry or be terminated because he had not done anything to take a negative action against the state same thing in the that was appointed after it was not named by the seat was appointed leader of the somebody other than the seeds choice it dressed post appointment conduct there was a four legged injury hearing in philips and the case from the word go judge not the judge's interpretation of those half its should be reviewed by the court on the standard that opposing counsel would have you apply here should not be applied because basically that would create a rule where any time a judge has to look at a stash or look at a moving on to the thirty day time limit are your honor's question counsel regarding the trial court's statements during arguments at hearing on this matter in the second volume of age twenty one appears exchanged between the court and myself during that argument the court says is that the basis for the concern by the other parties in really the issue here that they're all deals are but there's really nothing to do it's under litigation until a judge makes a decision as to whether those assets go into all this kind of ties into another argument first of all essentially they're saying the only thing that we could do here is accuse him of fraud accuse her on the seat of the fraud and i'd take issue with that i don't believe that's the only action that could be taken by  executor really what we're looking for is an executor who can't objectively determine what to do about this asset and do something do something to recognize that this is a potential asset  claim that there was a transfer made in this new trust to defraud creditors so that it would not happy paid out to the creditors the issue of whether he actually owes that money to walk into the guaranteed is a separate issue from whether he transferred that money fraudulent and the issue of whether he actually knows that money to offer it could be determined through our litigating our estate claim in the probate matter no action is been taken regarding that either but one of the issues before the court in  consolidated cases is whether there was this fraudulent transfer from old trust in the new trust to avoid predators the executor in her individual capacity has said no way definitely not but the executor in so it benefits her to do nothing take no action and whole in these other cases that the judge finds it off the harass and for that reason she cannot objective we administer your state and counsel brought up the fact that we're asking her to claim fraud no we're not asking her to go out of your fraud claim we're asking her ed page thirty eight of our brief i refer to the various pleadings that she has filed in this proceeding involving the removal she filed in response to our motion in july of two thousand s discusses are not part of the season to stay so again we have an executor without any guidance from the court saying it's all mine it doesn't go to his state and that's why she cannot be the representative of the estate and then she goes on she it's not just any action it's not that she's not even trying for the estate she's actively fighting to stay and she can do that in her individual capacity but she can't do that when she has a  what new truly independent administrators would do it that's why the judge appointed mr brown our course so clearly had to withdraw at least the us they don't have a fighting chance at least the now we certainly agree with what the trial court did but certainly if you disagree with us if you disapprove the drug court if you can as an alternative you can i believe reverse the trial of course two thousand and eleven trust is valid in two thousand and twelve trust is valid a lot of it is that there's a lot of other issues involved in it as well there's a lot of other pleadings but certainly there is a is a time but this is unique we have someone channelers in the trust and once that happens it's not like a garden variety situation at that point someone asked for her tact the state and always doing that so you're saying basically the cases relied upon by opposing counsel don't involve situations where there are allegations of failure to pursue an asset that is not pursued to go to the executor  free or whether i don't feel or i may request were supervising the order but i believe if you were to reverse the crowd or on the stays at least we know we could make some progress in the way they very much the most difference the lower court here the court has made it from a nation based on its findings and its ability to manage its trial calendar that there should be a stay here because as the bird case tells us we could go up have a determination come back down to the lower court in the meantime since there was no stay we've had assets distributed now we're going to have to we marshal assets and then try to figure out how we do that weighed all of that we had all the arguments you know we need to have a stay until we get this particular issue worked out and under the abuse of discretion standard as long as there's a reasonable basis for that information this court is bound to accept that and all the cases that have been