MR. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court.
The estate of the decedent appeals from a judgment in the Circuit Court, Probate Division, which granted a portion of the lessor's claim for rent alleged to be due the lessor from the estate.
The decedent, Arthur Corbin, died on November 5, 1966, at which time he was the lessee of an apartment for a term ending on September 30, 1968. The lease was binding on the heirs, executors, and assigns of the lessor and of the lessee. At the time of the decedent's death, the rent had been paid for the month of November. Joseph D. Gannon, an attorney, was named executor in the will but was not appointed as executor by the Probate Division until January 23, 1967.
On November 8, 1966, the named executor attempted to gain entry into the apartment but was refused entry on the ground that he did not possess Letters Testamentary evidencing his appointment by the Probate Court. On that date, the lessor plugged the door lock to the apartment. On several occasions after November 8th, the executor attempted to gain access to the premises and was rebuffed until the Letters were finally issued on January 23, 1967. During this period, the lessor's agents and the executor named in the will engaged in correspondence and
The lessor filed a claim against the estate for the balance of the rent under the lease which amounted to $3,960. The estate counterclaimed for the security deposit of $330. The trial court allowed the lessor's claim for rent for the period of December 1, 1966, to April 15, 1967, in the sum of $742.50 and allowed the estate a credit of $330 for the security deposit. The resulting judgment amounted to $412.50 in favor of the lessor. The estate appeals from this judgment on the ground that the estate should not be held liable for any rent from December 1, 1966, to April 15, 1967.
The estate contends that because the lessor deprived the named executor from access to and control of the apartment for over two and one-half months, the lessor thereby abrogated the lease and was therefore not entitled to further rent payments after the month of November, 1966. In its reply brief, the estate specifically argues that the denial of entry by the lessor constituted an eviction of the heirs and assigns of the decedent thereby relieving the tenant of the payment of future rent.
However, there remains the issue whether rental liability was suspended during the time when the executor was denied access to the apartment prior to his appointment. The estate contends that section 79 of the Probate Act (Ill Rev Stats 1965, c 3, § 79) gives the executor named in the will the power and the duty to take possession of the apartment of the decedent-lessee prior to the issuance of Letters Testamentary. Section 79 reads in pertinent part:
The lessor asserts that the executor could have applied for Letters of Administration to Collect under section 105 of the Probate Act (Ill Rev Stats 1965, c 3, § 105) to protect and preserve the estate from the contingencies of waste and loss due to the delay in the issuance of Letters Testamentary. However, the relevant question before this court is the construction and applicability of section 79 and the determination of the executor's power under section 79. Therefore, a consideration of section 105 is not essential to a proper disposition of this appeal.
The estate asserts that the executor's preappointment power and duty to enter the decedent's apartment was authorized by the statute's extension of preappointment powers to "... the preservation of the estate." The estate cites Faubel v. Michigan Blvd. Bldg. Co., 278 Ill.App. 159, in support of this contention. The case is distinguishable in some respects from the instant case
The cases are numerous which state that any doubt or ambiguity as to the meaning of language in a lease is construed most strongly against the lessor and in favor of the lessee. Exculpatory clauses are to be strictly construed against the party they benefit. (Stein v. Yarnall-Todd Chevrolet, Inc., 85 Ill.App.2d 228, 229 N.E.2d 331.) We will not construe the words "any act" in paragraph nine to be so all-inclusive as to mean that when a lessor wrongfully deprives a tenant of possession, the rental obligation is not abated. Such a result would be ludicrous and unconscionable. Since the withholding of possession was unjustified in the case at bar, the consideration for the payment of rent, namely the use and possession
For the foregoing reasons, the judgment of the trial court is reversed in part and remanded with directions to limit the lessor's recovery by excluding rental liability which accrued during the period when the executor was denied access to the apartment. Since the November rent had been paid by the decedent prior to his death and since the estate does not contest this payment, the estate is relieved of its obligation to pay rent for the period beginning on December 1, 1966 and terminating on January 23, 1967.
Reversed in part and remanded with directions.
SCHWARTZ and DEMPSEY, JJ., concur.