Appeal from the Circuit Court of Winnebago county; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.
JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 21, 1959.
This is an appeal by Catherine Trapani, individually and as Executor of the Will of Joseph J. Trapani, Jr., deceased, petitioner-appellant, from an Order of February 27, 1958 of the Circuit Court of Winnebago County dismissing her appeal to the Circuit Court from an Order of February 14, 1957 of the Probate Court of Winnebago County.
It appears that Joseph J. Trapani, Jr. died testate on January 16, 1955, and his widow, Catherine Trapani, who had been appointed Executor under his Will, pursuant to her petition in the Probate Court for probate of Will etc., qualified as Executor and letters testamentary were issued to her June 27, 1956 upon the admission of the Will to probate. In addition to his widow, his heirs at law, devisees, and legatees were his children, Jo Anne M. Trapani, Joseph F. Trapani, and Marilyn A. Trapani. Jo Anne was an adult, and Joseph F. and Marilyn A. were and are minors. The children are the respondents-appellees herein. The minors appear by a guardian ad litem. So far as may be material, the decedent's Will gave, devised, and bequeathed all his property, equally, to his wife and children, and gave the Executor "full power . . . to compound or otherwise settle and adjust any and all claims, charges, debts and demands whatsoever against or in favor of my estate," and directed the Executor "to do each and every act and thing necessary or proper to the full and complete administration of this my last will and testament."
Joseph J. Trapani, Jr., the decedent, Guiseppe Trapani, his father, and Vincent Trapani, his brother, were partners in the Home Oil Co., of Rockford. They were engaged in the wholesale and retail sale of gasoline, oil, and other products.
Catherine Trapani, the Executor of Joseph J. Trapani, Jr., deceased, as petitioner, filed, on August 31, 1956, a verified petition in the Probate Court in the decedent's estate, alleging the partnership of the deceased in the Home Oil Co.; that the partnership and the petitioner had caused an audit to be made of the books and records of the partnership as of the date of the death of Joseph J. Trapani, Jr.; that it appeared therefrom that the net worth of the partnership as of then was $164,608.51; that the decedent was entitled to a one-third interest and that the value of his interest was $54,869.50; that certain partnership real estate had been occupied by the decedent and his family, the cost of which real estate had been taken into account in determining the value of decedent's interest in the firm, and it had been agreed, subject to the approval of the Court, that, in addition to receiving the sum of $54,869.50, this particular realty, which was described, should be conveyed to the decedent's estate; and that the petitioner believed the value of decedent's interest in the partnership had been fully and fairly determined, and that it was to the best interests of the estate that she be authorized to accept the foregoing as a full settlement and payment of decedent's interest in the partnership, pursuant to Ch. 106 1/2, Ill. Rev. Stats., 1955, par. 42. Two of the heirs, devisees, and legatees, Joseph F. Trapani and Marilyn A. Trapani, being minors, as indicated, a guardian ad litem was appointed for them, and answered the petition. A hearing was had on that petition, and on November 23, 1956 the Probate Court entered an order pursuant thereto, finding that it had jurisdiction of the parties and the subject matter of the cause; that the partnership was represented by counsel, the minor children were represented by their guardian ad litem, and the Executor represented by her counsel; that the net worth of the Home Oil Co., as of the date of the death of the decedent, was $271,860.43; that the value of the interest of the decedent therein is $90,620.14; that the decedent's estate should be found to be a general creditor of the partnership to the extent of $90,620.14, in accordance with the provisions of Ch. 106 1/2, Ill. Rev. Stats., 1955, par. 42, being Section 42 of the Uniform Partnership Act; and ordering that the value of the interest of the decedent was $90,620.14 and that the estate was a general creditor of the partnership in that amount. No appeal was taken from that order by anyone.
Following this, Catherine Trapani, Executor, then filed another verified petition December 11, 1956, in the Probate Court, this time for Authority to Compromise Claim of the decedent's estate against the partnership, alleging, in substance, that the Home Oil Co., did not have and at that time was unable to obtain sufficient cash with which to pay the general claim of $90,620.14, but that the partnership had offered to compromise and pay the claim by paying the decedent's estate a certain amount in cash, by conveying to the Executor certain described real estate, and by executing and delivering to the Executor certain installment notes, secured by a trust deed on certain realty, in certain amounts, and upon certain terms. The Petitioner-Executor alleged that she believed that it was to the best interests of the estate and of the beneficiaries under the Will that she be authorized, empowered and directed to accept the compromise and payment of the claim, as indicated, and that was the prayer for relief. This petition was set down for hearing, all parties except the partnership were given notice, a guardian ad litem was again appointed for the foregoing minors, notified, and answered the petition, and all adult parties in interest, including the partnership, were represented by their respective attorneys. On February 14, 1957, an Order was entered by the Probate Court on, and in conformity with the prayer for relief of, and granting this petition of the petitioner, Catherine Trapani, Executor, finding that written notice had been given Catherine Trapani, individually, all the children, and the guardian ad litem, that Catherine Trapani and the adult child were represented by certain attorneys, the guardian ad litem had answered and was present, the partnership appeared by certain attorneys, and Catherine Trapani, as Executor, was represented by counsel, being other counsel than represented her individually, and finding the Court had jurisdiction of the parties and the subject matter.
Then an appeal was taken to the Circuit Court by the petitioner, Catherine Trapani, Executor, from the Order of the Probate Court of February 14, 1957 on that last petition. On January 30, 1958, in the Circuit Court, Marilyn A. Trapani and Joseph F. Trapani, respondents, minors, by their guardian ad litem, theretofore appointed by the Circuit Court, moved to dismiss the appeal of the petitioner Catherine Trapani, as Executor, for the following reasons:
1. "The order on petition for authority to compromise claim entered by the Probate Judge on February 14, 1957 was, in fact, a consent order entered by agreement of the parties, all of whom were represented by counsel.
2. "Said order was in the nature of a contract among the parties litigant, to which the Court gave its formal approval and without the consent of all parties the same cannot be opened, changed or set aside.
3. "Said order, being a consent order, cannot be reviewed by appeal.
4. "The appellant, Catherine Trapani, was the petitioner whose petition prayed for the adjudication contained in said order of the Probate Court and she cannot be heard to complain of an order which she, herself, induced the Court to enter."
Also, on January 30, 1958, the petitioner Catherine Trapani, Executor, filed a motion in the Circuit Court in her appeal, to dismiss her petition theretofore filed in the Probate Court for authority to compromise the claim of the decedent's estate against the partnership, and that motion requested the ...