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In Re Estate of Hinshaw

OCTOBER 17, 1958.

IN MATTER OF ESTATE OF CLARENCE HINSHAW, DECEASED. MILDRED RAINS, PETITIONER-APPELLANT,

v.

VICTOR G. JOHNSON, ADMINISTRATOR OF ESTATE OF CLARENCE HINSHAW, DECEASED, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Kane county; the Hon. ROY J. SOLFISBURG, JR., Judge, presiding. Reversed and remanded with directions.

PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.

Clarence Hinshaw, a resident of the State of Iowa for sixty-nine years, died there intestate on August 2, 1955, leaving Mildred H. Rains, a resident of Iowa, and Margaret H. Terrell, a resident of the State of Ohio, his daughters and only heirs at law him surviving. Mildred Rains, one of the daughters, was duly appointed administratrix of his estate by the District Court of Hardin County, Iowa. On February 2, 1956, the administratrix filed in the District Court an inventory which listed various items of personal property having an estimated value in excess of $10,000 and also certain described real estate belonging to her intestate and also located in Hardin County, Iowa, having an estimated value of $18,000.

On December 4, 1956, Donald W. McCorkle, a resident of the State of Indiana, and Victor G. Johnson, filed in the probate court of Kane County their verified petition praying that court to issue letters of administration upon the estate of Clarence Hinshaw to Victor G. Johnson, the public administrator of Kane County, Illinois. This petition alleged that Clarence Hinshaw died intestate on August 2, 1955; that he was, at the time of his death, a resident of Hardin County, Iowa; that his two named daughters, Mildred H. Rains residing at New Providence, Iowa and Margaret H. Terrell residing at New Vienna, Ohio were his only heirs and that his personal estate "did not exceed in value $10,000." This petition also recited that petitioner, McCorkle was a resident of West Point, Indiana and a creditor of Hinshaw.

On the day this petition was filed, December 4, 1956, the probate court of Kane County entered two orders, one granting the prayer of the petition and directing the issuance of letters of administration to Victor G. Johnson, public administrator. The other order established heirship and found that Mildred H. Rains and Margaret H. Terrell were adult daughters of, and the only heirs at law of decedent.

On December 13, 1956, Mr. Johnson filed in the probate court of Kane County a verified inventory which the court approved the same day. This inventory omitting the caption and signature and verification is as follows:

"The following is a full, true and perfect inventory of all the real and personal estate of the said Clarence Hinshaw, deceased so far as the same has come to the possession or knowledge of the undersigned Victor G. Johnson, administrator by appointment of this court of said Clarence Hinshaw.

"Description

Personalty Value unknown

Liability insurance policy issued by the Iowa Farm Mutual Insurance Company insuring Clarence Hinshaw re liability arising from automobile collision, etc."

On January 4, 1957, Mildred Rains, a daughter of decedent entered her special appearance in the probate court of Kane County and filed a verified petition praying that court to revoke the letters of administration theretofore issued to Johnson, and for an order declaring all of the proceedings had in her father's estate in the probate court of Kane County without jurisdiction and void. This petition, after reciting her father's death and heirship, and her appointment as administratrix of his estate by the District Court of Hardin County, Iowa then averred that an order had been entered by that court on July 26, 1956 closing the estate and discharging her as administratrix. The petition then averred that her father was never a resident or domiciled in Illinois; that at the time of his death he owned no real or personal property or had any assets in any form in Illinois; that he owed no taxes to the State of Illinois and was not indebted to any resident of the State of Illinois. Her petition alleged that decedent had had a liability insurance policy issued to him by the Iowa Farm Mutual Insurance Company; that this insurance company is a foreign corporation and that said policy was contracted for and was issued to her father in the State of Iowa. She further averred that this policy was in the State of Iowa at the time of decedent's death and has remained there subsequent to his death; that the Iowa Farm Mutual Insurance Company is an Iowa Corporation and is not authorized to do business in the State of Illinois, does not maintain an office in Illinois and has done no business in the State of Illinois.

This petition further alleged that on December 5, 1956, the said Donald W. McCorkle filed his suit against Johnson, as administrator of the estate of Clarence W. Hinshaw, deceased, in the circuit court of Kane County, Illinois, seeking to recover damages from said administrator for injuries which he, McCorkle, received as the result of an automobile accident which occurred in Kane County, Illinois, on December 18, 1954, when an automobile owned and operated by McCorkle collided with an automobile owned and operated by defendant's intestate. This petition further alleged that one Bernard Osterhoff had filed a similar action on December 11, 1956, in the circuit court of Kane County against Johnson as administrator, to recover damages which he alleged he sustained while riding in the automobile of McCorkle as a guest passenger. Attached to and made a part of the petition were (1) a certified copy of the letters of administration issued to appellant by the District Court of Hardin County, Iowa; (2) a certificate by the clerk of that court to the effect that an order had been entered in that court on July 26, 1956, closing that estate and (3) an affidavit of the secretary of the Iowa Farm Mutual Insurance Company to the effect that that company is qualified to do business in Iowa only and that it does not write any business or maintain any office in Illinois.

Upon a hearing in the probate court of Kane County that court entered an order dismissing the petition on the ground that petitioner, Mildred Rains, was not an aggrieved or interested person and therefore could not contest the jurisdiction of the court in issuing letters of administration to Victor G. Johnson. To reverse that order, an appeal was taken by Mildred Rains to the circuit court of Kane County.

In the circuit court, the administrator, appointed by the probate court of Kane County filed a motion to dismiss the appeal on the ground that only a person aggrieved by an order of the probate court has the right to appeal from an order of the probate court to the circuit court; that Mildred Rains was not a person aggrieved and, therefore, did not have the right to appeal. The circuit ...


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