Pollack v. Pollack , 28 Ill. App. 3d 987 ( 1975 )

Mr. PRESIDING JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from an order entered by the Circuit Court of Cook County denying respondents’ motion to dismiss the petition to reopen the estate of Barney M. Pollack, deceased, pursuant to section 72 of the Civil Practice Act and section 308a oí the Probate Act.

The issue presented on appeal is whether the trial court properly denied the respondents’ motion to dismiss the petition to reopen the estate pursuant to section 72 of the Civil Practice Act and. section 308a of the Probate Act.

Petitioner, Gertrude Pollack, is the surviving spouse of the decedent, Barney M. Pollack. Respondents, Jack Pollack and Billie Goldstein, are children of decedent by a previous marriage and were the executors of his estate. Petitioner married the decedent in August, 1967. On July 27, 1967, approximately 1-month prior to their marriage, decedent and petitioner executed an antenuptial agreement. The agreement provided, inter alia, that in consideration of their contemplated marriage, each party renounced all claims he or she possessed to any portion of the other’s estate, no matter how created and under whatever law. Decedent died on May 10, 1971. His .last will and testament was admitted to probate on July 1, 1971, and letters testamentary were issued to respondents. Subsequently, pursuant to notice of the executors, the petitioner filed her renunciation of the will. On October 28, 1971, an order was entered spreading the renunciation of record in the Circuit Court of Cook County. On March 7, 1973, the first and final account of the respondents-executors was filed. Petitioner did not receive any notice of motion to present the final account and close the estate. The accounting submitted to the court showed no distribution of any portion of the estate to the petitioner. The court was not informed in writing of the antenuptial agreement entered into between petitioner and decedent, although the attorneys for the executors later claimed they told the judge orally about the agreement. An order was entered on the same day closing the estate, although the renunciation was spread of record.

On May 18,1973, in a supplemental proceeding, petitioner filed a complaint to set aside the antenuptial agreement. When it appeared the complaint could not be heard because the estate had been closed, the petitioner on October 16, 1973, filed her petition to reopen the estate pursuant to section 72 of the Civil Practice Act and section 308a of the Probate Act. Respondents filed a motion to dismiss the petition. On January 29, 1974, the trial court denied respondents’ motion to dismiss and allowed the petition to reopen the estate. Respondents’ appeal followed.

The respondents first contend the petitioner’s complaint to set aside the antenuptial agreement was a claim against the estate and had to be filed within 7 months of the issuance of letters testamentary. Respondents argue since petitioner failed to bring her cause of action within the required 7 months, she is forever barred from sharing in the assets of decedent’s estate. In support of their contention, the respondents rely on section 204 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, § 204), which at the time of decedent’s death provided:

“All claims against the estate of a decedent, except expenses of administration and surviving spouse’s or child’s award, not filed within 7 months from the issuance of letters testamentary 999 are barred as to the estate which has been inventoried within 7 months from the issuance of letters.”

We do not agree with respondents’ contention. Section 16 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, § 16) provides that upon the timely filing of a renunciation of will, a surviving spouse is entitled, as a matter of right, to share in the estate of the testator. Section 17 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, § 17) provided, at the time of decedent’s death, that the surviving spouse must file his or her renunciation within 8 months after admission of the will to probate. The supreme court in In re Estate of Donovan (1951), 409 Ill. 195, 202, observed:

“The purposes of sections 16 and 17 creating the right of a spouse to renounce the provisions of the will and setting forth the method for accomplishing renunciation is to enable a spouse to elect which method of taking would be most advantageous to him or her. * * * The rights of a surviving spouse who clearly renounces provisions of a will * * * become fixed by the statute and are not affected by claiming or omitting to claim any specific estate upon renunciation.”

In the present case, petitioner properly filed her renunciation of the will within the time specified by the statute, and the same was spread of record pursuant to court order. Petitioner, thereupon, was entitled by statute to share in the assets of decedent’s estate. Petitioner’s interest in the estate was a statutory right, not a claim, and the rules pertaining to claims against an estate do not apply. Petitioner was not required to take any other affirmative action in order to protect her vested interest. Upon petitioner’s renunciation of the will, it was the duty of the respondents, as executors, to defend the estate. They should have raised as a defense the antenuptial agreement entered into between petitioner and decedent, thereby presenting an issue for the trial court to determine. Respondents, however, did not inform the court of the antenuptial agreement either at the time of petitioner’s renunciation of the will or during the probating of the estate until the time the final account was presented to the court and the estate closed. If the attorneys for the estate did orally advise the judge who closed the estate of the antenuptial agreement as opposed to the renunciation of the will, the judge was in error in not setting the matter for hearing on the merits. If the judge was not advised, it is still difficult to miderstand how he could overlook the renunciation spread of record, which gives the widow a vested interest in the estate. That was error.

Further, section 290 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, § 290) provides that “[njotice of the hearing on any account of an executor or administrator shall be given as the court directs to unpaid creditors and to every person entitled to a share of the estate who has not received that share in full." (Emphasis added.) A review of the record indicates neither petitioner nor her attorney of record received any notice of motion to present a final account and close the estate. Respondents therefore failed to properly execute their duties as executors, as did their attorneys. They unilaterally determined the renunciation of the will filed by petitioner and spread of record was of no force and effect and had no legal significance relative to decedent’s will. The conduct by attorneys in not serving notice on counsel of record is not warranted and cannot be condoned.

Respondents next contend the trial court erred in denying their motion to dismiss the petition to reopen decedent’s estate pursuant to section 72 of the Civil Practice Act and section 308a of the Probate Act. Respondents maintain the petitioner failed to allege a meritorious claim and did not exercise due diligence in presenting her petition to reopen the estate, thereby not satisfying the requirements of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, § 72). We have held above that this was not a claim against the estate. The respondents further argue that petitioner failed to meet the requirements of section 308a of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, § 308a), which provides that a decedent’s estate may be reopened “to permit the administration of a newly discovered asset or of an unsettled portion of the estate on the verified petition of any interested person.” (Emphasis added.)

We believe the trial court properly denied the respondents’ motion to dismiss the petition to reopen the decedent’s estate. A petition under section 72 of the Civil Practice Act is the filing of a new action and it is necessary as in any civil case that the petitioner allege and prove a right to the relief sought. (Union Oil Co. v. Lang (1971), 132 Ill.App.2d 658.) The petition must show that the petitioner has acted with due diligence and has a meritorious cause. (Burkitt v. Downey (1968), 102 Ill.App.2d 373.) A review of the record in the case at bar shows petitioner acted with due diligence and established a meritorious cause, namely, a vested interest, thereby satisfying the requirements of section 72. Respondents’ contention that petitioner failed to satisfy the requirements of section 308a of the Probate Act is likewise without merit. Petitioner, as the surviving spouse of decedent, was entitled by statute to share in the assets of his estate upon her renunciation of the will and was, therefore, an “interested person” as provided in section 308a. Since no distribution of any portion of the estate had been made to petitioner, she properly filed her petition to require the administration of an unsettled portion of the estate, which only the court can determine.

A hearing must be held on the merits as to whether the antenuptial agreement was valid, was still in full force and effect and a bar to the renunciation of the will.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

JOHNSON, J„ concurs.