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In Re Estate of Bird

OPINION FILED NOVEMBER 27, 1951.

IN RE ESTATE OF CHARLES G. BIRD. — (ILLINOIS PUBLIC AID COMMISSION, APPELLEE,

v.

LEON T. SANDERSON, EXR., APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. STANLEY H. KLARKOWSKI, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

The executor of the estate of Charles G. Bird, deceased, is prosecuting this appeal from an order of the circuit court of Cook County allowing the claim of the Illinois Public Aid Commission, in the amount of $4999.00, against the inventoried assets of the decedent's estate.

This appeal, originally presented to the Appellate Court for the First District, was transferred to this court on the ground that public revenue is involved. The cause presents the issues of whether a claim against a decedent's estate filed by the Illinois Public Aid Commission, an agency of the State, pursuant to sec. 5-4 of the Public Assistance Code, (Ill. Rev. Stat. 1949, chap. 23, par. 440-4,) to recover sums paid the decedent during his lifetime, must be filed within the time prescribed by section 204 of the Probate Act; (Ill. Rev. Stat. 1949, chap. 3, par. 356,) and whether the nunc pro tunc order, entered by the probate court and affirmed by the circuit court, allowing the claim to be filed as of the original date, as a lost record, was legally proper.

Under the stipulated facts it appears that the decedent during his lifetime received from the Illinois Public Aid Commission (herein referred to as the commission) some $4999, paid pursuant to the Old Age Pension Act. Letters of administration of decedent's estate were issued on June 28, 1949, and an inventory thereof was filed and approved on June 12, 1950. The records of the probate court do not show that any claim was ever filed by the commission, or that any summons was issued. However, at a hearing on the commission's petition to file a claim nunc pro tunc as of November 17, 1949, a former Assistant Attorney General testified that he did file the claim against the estate for $4999 on November 17, 1949, at which time he filed several other claims of the commission. His testimony is corroborated by a letter, admittedly received and acknowledged by the attorney for the estate, in which the latter was advised that the commission filed a claim against the estate on November 17, 1949, by the acknowledgment of the receipt of a copy of the claim by the attorney for the estate, and by the docket and case file records in the Attorney General's office.

On June 20, 1950, the attorney for the estate sent a letter to the Attorney General's office, advising that an examination of the dockets and files of the probate court failed to disclose any claim filed by the commission; whereupon, after a further search of the court records, the commission filed a petition in the probate court, alleging the foregoing facts, and praying that inasmuch as the claim was lost or mislaid through some inadvertence, an order be issued allowing the commission to file the claim nunc pro tunc as of the date the claim was originally filed.

The probate court allowed the petition, and on appeal therefrom the circuit court found that the claim of the commission was filed in the office of the clerk of the probate court of Cook County on November 17, 1949, and that through no fault of the claimant the same was misplaced and never docketed. The court therefore affirmed the nunc pro tunc order, and further ordered that the claim in the amount of $4999 be allowed as a sixth class claim against the estate, as disclosed by the inventory filed, as well as against any subsequently discovered assets.

The executor of the estate has appealed therefrom on the theory that the commission, though a State agency, is required to file its claim within the 9-month period after the issuance of letters of administration, as provided in section 356 of the Probate Act, in order to charge the claim against inventoried assets, and that since no such claim was filed, the order allowing the claim was in error. Moreover, defendant contends the court was without jurisdiction to enter the nunc pro tunc order, since no proceedings were pending, and the order was unsupported by proper and sufficient evidence.

The commission, however, maintains that inasmuch as it is a State agency, asserting a public right, it is not bound by the time-limitation provisions of section 204 of the Probate Act, which are comparable to a statute of limitations, and that even if the commission were deemed bound thereby, the claim herein was filed on November 17, 1949, well within the statutory period, and hence properly chargeable against inventoried assets. The commission argues further that the evidence reveals that the claim was lost through no fault of the commission, and that, inasmuch as the court has power to restore lost records, it properly issued the nunc pro tunc order allowing the claim to be filed as of the original date.

In support of this rationale, the commission relies upon the established principle of law, reiterated in Clare v. Bell, 378 Ill. 128, that unless the terms of a statute of limitations expressly include the State, county, municipality, or other governmental agencies, the statute, so far as public rights are concerned, is inapplicable to them.

Ordinarily, where that principle is invoked, the inquiry is whether the State, or its agencies or subdivisions, is asserting public rights on behalf of all the people of the State, or private rights on behalf of a limited group. (113 A.L.R. 377 et seq; City of Chicago v. Chicago and North Western Railway Co. 163 Ill. App. 251; 34 Am. Jur. 309; Phillips v. Leininger, 280 Ill. 132.) In the instant case, however, the inquiry is whether section 204 of the Probate Act, formerly section 70 of the Administration Act, can be deemed to be a statute of limitations so that the legal incidents of that concept could be held applicable.

Section 204 of the Probate Act provides: "All claims against the estate of a decedent, except expenses of administration and surviving spouse's or child's award, not filed within nine months from the issuance of letters testamentary or of administration, are barred as to the estate which has been inventoried within nine months from the issuance of letters, * * *."

There is an apparent conflict in the phraseology, if not in the legal conclusions, of this court with reference to the nature of this provision of the Probate Act.

In Hathaway v. Merchants' Loan and Trust Co. 218 Ill. 580, the court, in determining the retroactive effect of a provision reducing the time for filing claims against decedent's estate, referred to this section of the statute as a statute of limitations, and distinguished it from a statute conferring jurisdiction. Similarly, in Baird v. Chapman, 120 Ill. 537, and Roberts v. Flatt, 142 Ill. 485, the provision is referred to as a statute of limitations. In Durflinger v. Arnold, 329 Ill. 93, 98, however, the court specifically stated that this provision fixing the time for filing claims against decedent's estates is not a general statute of limitations, but a specific act adopted for the particular purpose of facilitating the early settlement of estates, and held that even though the claim was not filed within the statutory period, it was enforceable against the heirs of the decedent and real property they had inherited. The court cited Waughop v. Bartlett, 165 Ill. 124, where a similar statement was made by the court in allowing the mortgagee to enforce collection as against inherited assets, even though his claim had not been filed against the estate within the time prescribed by section 70 of the Administration Act.

This interpretation of this section of the Probate Act was adopted by the Supreme Court of the United States in Pufahl v. Estate of Parks, 299 U.S. 217, where the court held that a claim by the receiver of a national bank against a former stockholder was subject to the time-limitation provision of section 70 of the Illinois Probate Act, and since it was not filed within the time prescribed therein, the claim, though not barred, could not be satisfied against inventoried assets, but only against subsequently discovered assets. The ...


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