APPEAL from the First Division of the Appellate Court for the
First District; heard in that court on appeal from the Circuit
Court of Cook County; the Hon. STANLEY H. KLARKOWSKI, Judge,
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 18, 1953.
An order of the probate court of Cook County entered January 29, 1951, vacated two earlier orders of that court relating to the appointment and discharge of an administrator de bonis non in the estate of Stanley Young and to the closing of that estate. On appeal, the circuit court of Cook County vacated the order of the probate court. The Appellate Court for the First District reversed the judgment of the circuit court and remanded the cause. (346 Ill. App. 257.) We allowed leave to appeal.
Upon the death of Stanley Young in 1940, letters of administration were issued to his widow, Ruth Young, herein referred to as the respondent. She administered the estate until June 23, 1944, when she was permitted to resign as administrator because she had become a nonresident. At her suggestion the probate court appointed the Metropolitan Trust Company, herein referred to as the petitioner, as administrator de bonis non. The petitioner continued the administration of the estate and on May 8, 1947, presented its "Final Account" in which it requested to be discharged as administrator.
When Halbert O. Crews, an attorney for the petitioner, presented the final account to an assistant to the judge of the probate court on May 8, 1947, Emmet J. Cleary, an attorney, protested the entry of an order discharging the Metropolitan Trust Company as administrator and closing the estate. At that time Cleary was attorney for the plaintiff in litigation pending in the United States District Court in which it was sought to obtain for Stanley Young's estate his interest in the estate of his grandfather, Otto Young. Cleary and Crews agreed that the administrator should not be discharged and that the estate should remain open. They made no change in the account and left the courtroom believing that the administrator had not been discharged or the estate closed.
Frederick B. Resag, assistant to the judge of the probate court, entered the following order on May 8, 1947: "Notice to Counsel for Heirs. Notice to Creditors. All 1st, 3rd & 4th Class Claims paid in full. Prorata Share of 7th Class Claims Paid. Estate exhausted as to time of filing this Final Account upon payment Cost of Administration, Widow's Award & Claims as set forth above. Costs Paid to Date. Final Account approved." This order, written by the assistant to the judge on the final account, neither discharged the administrator nor closed the estate.
Under the procedure followed in the probate court, an account is filed in the courtroom of the assistant to the judge of the probate court who approves current and final accounts. The assistant endorses on the account a memorandum of his findings and order. When this is done, the account goes into the office of the clerk of the probate court, where it is kept for about a week. The account and the endorsements are then photostatted. The photostats are kept in book form, numbered, and marked "Deceased Final Accounts and Orders in the Probate Court of Cook County." These books are permanent records of the probate court. The original account is kept in the files of the estate. When the assistant to the judge makes his order, the deputy clerk in his courtroom makes a minute of that order. This minute is then entered in the clerk's docket at night. The docket is, of course, a permanent record, but the original minute of the deputy clerk is retained only for about five months.
The order quoted above was photostatted in the usual course, and so appears in the permanent records of the court. The clerk's minute entry of that order, however, as it appears in the docket, while substantially a copy of the order, adds the following: "Adm W W A Disch." At some unspecified date, after the order which was entered had been photostatted, the assistant to the judge added to his order as it appeared on the original copy of the final account, the notation "Adm W W A Disch."
On October 5, 1949, pursuant to notice to the parties of record, an order was entered substituting the firm of Finn, Tollkuehn and Smith as attorneys for the trust company as administrator de bonis non, and directing that notice of all proceedings be given to those attorneys.
The discrepancy between the entry in the clerk's docket and the entry, as modified, on the original of the final account on the one hand, and the order originally entered as shown by the photostat in the book of permanent records on the other, presented no difficulty until March of 1950. Then Cleary learned that the estate was not open, but, on the contrary, that both the docket entry and the final account endorsement specified that the estate was closed. In the meantime, the action instituted in the United States District Court had been successfuly concluded, and a decree had been entered holding that Stanley Young had a vested and transmissible interest in the remainder created by his grandfather's will. That interest is substantial, and may amount to $3,000,000. On appeal the Court of Appeals affirmed the decree of the District Court; certiorari was denied by the United States Supreme Court on June 5, 1950.
On March 20, 1950, as a result of Cleary's activity in disclosing the discrepancy in the records, the probate court entered an order which recited: "On the Court's own motion, it having come to the Court's attention from the record and file in this cause that due to misprision, certain doubt, confusion and ambiguity exists as to the present status of this Estate, the order of the Court entered May 8, 1947, is hereby expanded and amplified." Then, after stating the notice to heirs and creditors, payment of claims, and exhaustion of estate as to time of filing the account, stated in the original memorandum on the final account, the order continued: "It Is Hereby Ordered, Adjudged and Decreed, nunc pro tunc as of May 8, 1947, upon good and sufficient memorials including the order heretofore, on May 8, 1947, entered in this cause: That the final account . . . is hereby approved and confirmed; that Metropolitan . . . is hereby discharged as the Administrator De Bonis Non; and the Estate of Stanley Young, Deceased, is hereby closed."
On June 6, 1950, the day after certiorari had been denied in the Otto Young will litigation, respondent, represented by Cleary's law firm, filed in the probate court a petition seeking the reopening of the estate of Stanley Young and the issuance to her of letters of administration de bonis non. Her petition was granted by the probate court on June 8, 1950. Thereafter, on June 29, 1950, petitioner filed its petition, asking that the orders of March 20, 1950, and June 8, 1950, be vacated and that the court find and declare that petitioner was and always had been the duly appointed and qualified administrator of the estate. After respondent's answer and petitioner's reply had been filed, a hearing on the petition was conducted by the judge of the probate court.
At the hearing, Cleary, who appeared as a witness for respondent, testified that he had been informed by respondent of the discrepancy between the memorandum on the original of the final account and the photostatic record of that account; that after being so advised he made a check of the probate court records and noted that something had been added; that he ordered a certified copy of the final account; that the next day, March 16, 1950, Resag, the assistant to the probate judge, called him on the telephone and asked to see him; that he went to Resag's courtroom where the discrepancy in the orders was discussed; that Resag, after talking with Crews on the telephone, pointed out to Cleary that Cleary was the only one who had objected to the discharge of the administrator; that he, Cleary, acknowledged this and then stated, "I withdraw my objections;" that Resag told him to prepare a nunc pro tunc order; that later he returned to Resag's office when Ambrose Finn, an associate of the firm which had been substituted as attorneys for the trust company on October 5, 1949, was present; that Resag then asked Cleary and Finn to get together on some kind of an order which could be entered; that on Monday, March 20, he took a nunc pro tunc order to Resag, who entered it and asked him to send a copy of the order to Crews; that he mailed a copy to Crews, as requested; that he served no notice of the application for the order on Finn or anyone else.
On the other hand, Crews testified that he had no knowledge or notice of the order of March 20 and that he had not seen a copy of it until the present action was instituted. Finn denied that he talked with Cleary in Resag's courtroom. He testified that he went to Resag at the latter's request; that he was informed by Resag of the inconsistency in the orders; that he told Resag that he was not present when the final account was filed; that he suggested Resag call Crews; that he left the courtroom with the understanding that he would be called in the event of any further action on this matter; that he did ...