# Conservatorship of Browne

> Appellate Court of Illinois · November 23, 1977 · 54 Ill. App. 3d 556

URL: https://www.frixlaw.com/law-library/cases/9742900

## Case

- **Full name:** In Re CONSERVATORSHIP OF ROSE A. BROWNE, Incompetent.—(STEWART R. WINSTEIN, Public Conservator for the County of Rock Island, Petitioner-Appellant, v. BESTOR F. WITTER, Conservator of the Person and Estate of Rose A. Browne, Respondent-Appellee.)
- **Court:** Appellate Court of Illinois
- **Decided:** November 23, 1977
- **Citations:** 54 Ill. App. 3d 556; 12 Ill. Dec. 525; 370 N.E.2d 148; 1977 Ill. App. LEXIS 3667
- **Precedential status:** Published
- **Opinion:** Concurrence by Barry
- **Judges:** Stouder, Barry
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9742900

## How later opinions describe it (automated extraction)

- stating, “the controlling factor in appointing a conservator is what is in the best interest of the incompetent” and finding that a relative “would be more solicitous of the incompetent’s well being than would a total stranger”
- stating, “the rigid statutory preferences established by section 9—3 do not apply to appointment of conservators”

## Opinion text

Mr. JUSTICE BARRY, specially concurring:
Although I agree with the result reached by the majority, I believe the majority’s reasoning supporting that result is incorrect. As a matter of public policy, the preference given to relatives in obtaining and nominating other persons for letters of administration should also apply to obtaining or nominating for the letters of conservatorship. (See Rathbun v. Rimmerman (2d Dist. 1955), 6 Ill. App. 2d 101 , 126 N.E.2d 856 .) Therefore, I believe, the order of preference set out at section 9 — 3 of the Probate Act of 1975 (Ill. Rev. Stat. 1975, ch. 3, par. 9 — 3) should govern the appointment of a conservator.
Applying that statute to the facts of this case, the result would be the same as that reached by the majority. The petitioner contends, however, that relatives who are not residents of Illinois are not entitled to a preference in nominating a resident conservator. For this proposition, the petitioner cites In re Estate of Lamont (5th Dist. 1973), 13 Ill. App. 3d 714 , 300 N.E.2d 574 . The Lamont case concludes that, although a non-Illinois resident may be appointed as conservator, a nonresident’s nominee has no preference in appointment. The conclusion in Lamont is illogical and should not be followed. In the appointment of an administrator, although a non-Illinois resident cannot obtain letters of administration, the nomination by a nonresident retains its original priority. (Ill. Rev. Stat. 1975, ch. 3, par. 9 — 3.) As a result, applying this reasoning in place of the majority’s, I would also find that the trial court did not err because the nominee of the nonresident relatives in this case had a higher preference than did the public conservator.
Additionally, I believe the use of the preference statute in the appointment of conservators, rather than considering the “best interest of the incompetent,” provides the circuit court judges of this State a better template for the determination of to whom letters of conservatorship ought to be awarded. Although I do not suggest that the best interest of the incompetent should be ignored, I believe it is advantageous to the courts and the parties that there be more certainty in the law rather than relying on a case-by-case, judge-by-judge exercise of discretion. The exercise of discretion is more susceptible to further dispute. More importantly, the statutory preferences predict the relatives will consider the best interest of the incompetent. I suggest a process by which a person is appointed conservator in accordance with the preferences of the preferred petitioner after the trial court has considered whether the nominee or the petitioner has an interest which conflicts with the interest of the incompetent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9742900. Public record. Not legal advice.