Appeal by claimant from the Circuit Court of Kane county; the
Hon. HARRY W. McEWEN, Judge, presiding. Heard in this court at
the May term, 1950. Judgment affirmed. Opinion filed May 24,
1951. Released for publication June 11, 1951.
MR. PRESIDING JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT.
The Estate of Herbert P. Crane, deceased, appealed from an order of the probate court of Kane county, allowing the claim of Elida E. Piza in the amount of $275,493.40. The circuit court of Kane county, in a trial de novo, dismissed the claim on the ground that it had been adjudicated in a prior proceeding between the same parties. From this order, and from the circuit court's denial of claimant's motion to vacate the order, the claimant, Elida E. Piza, has prosecuted this appeal.
The primary issue presented here is whether the circuit court erred in determining that the orders entered in the proceedings on March 11, 1946, and April 10, 1946, in the circuit court of Kane county, were res judicata of the rights of the parties in the probate claim.
Inasmuch as various aspects of this case have been before the Illinois courts for ten years, and the issue of res judicata is involved, it is important to review the sequence of events and legal proceedings appearing from the record.
The claimant, Elida E. Piza, and the decedent, Herbert P. Crane, were married in New Orleans on May 12, 1916, and one child was born of their marriage. Claimant alleges in her probate claim that Herbert P. Crane gave her a certificate, evidencing some 300 shares of capital stock of the Crane Company, as a wedding present because he wished to provide for her after his death. He suggested that since he was more experienced in business matters, if she would turn over the stock certificate to him he would hold it as a trustee for her sole use together with all dividends and increments therefrom. In reliance thereon, she turned over the certificate to him, and it was agreed that she should not receive any portion of the trust estate until his death, at which time the trust would terminate, and she would receive the corpus of the trust.
On November 16, 1920, claimant and Herbert P. Crane were divorced, and a property settlement awarding claimant a lump sum of some $100,000 was agreed upon as temporary and permanent alimony, support money for herself and the child, and in settlement of all claims which she had, or at any time in the future might have against Herbert P. Crane growing out of the marriage relation. Claimant contends, however, that the trust was specifically excluded from the property settlement, although the decree contains no reference thereto.
The claimant further alleges that during the intervening years she proceeded on the assumption that Herbert P. Crane was discharging his duties as trustee; however, on September 20, 1939, she was advised that he made representations to the Crane Company that he was the sole owner of the stock certificate, that it was lost, and that he wanted a new one issued in lieu thereof in his own name, thereby evidencing an intention to convert it to his own use. As a result of this alleged breach of trust, claimant asserts that she demanded that he account and deliver the trust estate to her, and upon his refusal she instituted suit in the circuit court of Cook county on October 25, 1939, against Herbert P. Crane and the Crane Company. The Crane Company was dismissed from the suit and she filed a second amended complaint against Herbert P. Crane alone.
Defendant Crane filed a motion to dismiss the second amended complaint wherein he alleged that there were insufficient allegations to establish a gift of the stock certificate, or a trust; that such alleged trust violated the rule against accumulation of income, and the Statute of Wills, since the alleged interest of plaintiff is in the nature of an attempted testamentary disposition; that plaintiff was guilty of laches in seeking to enforce her alleged rights which relate back to 1916, or 25 years prior to the second amended complaint, during which time defendant has aged and passed his 80th year, and the witnesses which defendant might produce to establish the mendacity of plaintiff's complaint have died or disappeared, or their memories are impaired by the passage of so long a time; and that the complaint is barred by the provisions of the divorce decree.
In his affidavit in support of the motion, defendant alleged that during their marriage a stock certificate representing 300 shares of common stock of the Crane Company, registered in the name of Herbert P. Crane, became lost; that he had asked plaintiff to sign an affidavit to assist him in having a duplicate certificate issued, but she refused in response to the urgent demands of her sister who was living with them; that persons present at such conversations have since deceased, or their whereabouts cannot be ascertained; and that plaintiff has never asserted the claim prior to the filing of the suit.
The circuit court of Cook county denied defendant's motion to dismiss the complaint, and ordered him to answer. His answer and a reply thereto were filed. On November 6, 1943, Herbert P. Crane died, and his death was suggested to the court. Plaintiff was allowed to substitute the executor of the estate as defendant, and a third amended complaint was filed on June 6, 1944. The cause was transferred to the Kane county circuit court in November 1944.
The executor for the estate filed a motion supported by affidavits to dismiss the third amended complaint, alleging in substance the same grounds set forth in the motion to dismiss the second amended complaint. A copy of the divorce decree was attached to the motion. On March 11, 1946, the circuit court of Kane county sustained the motion to dismiss the third amended complaint. The court ordered plaintiff to file a fourth amended complaint within 20 days, and set the cause for hearing on April 10, 1946. Plaintiff failed to file a fourth amended complaint and on April 10, 1946, the case was dismissed with prejudice.
The court order is as follows: "This cause, coming on to be heard upon the set call of JUDGE CHARLES A. O'CONNOR, one of the Judges of said Court, and it appearing to the Court that heretofore on the 11th day of March, 1946, a motion of the defendant supported by an Affidavit to dismiss the plaintiff's third amended complaint was sustained and the plaintiff's third amended complaint ordered dismissed, and
"It further appearing to the Court that on the 11th day of March, 1946, the plaintiff was given twenty (20) days within which to file a fourth amended complaint, the time for the filing of which expired on April 1, 1946, and
"It further appearing to the Court that within said time ordered and provided, the plaintiff failed to file herein a fourth amended complaint, but defaulted in that respect, and
"It further appearing to the Court that no extension of time for the filing of said complaint was granted or allowed, or motion therefor presented within the time ...