Appeal from the Circuit Court of Henry county; the Hon. A.J.
SCHEINEMAN, Judge, presiding. Reversed and remanded.
JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.
The Commercial National Bank of Peoria, as Executor of the Estate of Robert Taylor, deceased, on July 26, 1949, filed in the County Court of Henry County, Illinois, in the matter of the Estate of Forrest L. Hallin, deceased, a claim based on a promissory note in the amount of $4,352.95, signed by Forrest L. Hallin, dated February 19, 1937, payable on demand to R.E. Taylor. On September 29, 1949, Lyman Gustus, as Administrator of the Estate of Forrest L. Hallin, deceased, entered his appearance on the back of the claim and consented to its allowance. The County Court of Henry County, on October 5, 1949, entered an order allowing the claim.
Luther Broodeen, an heir of the decedent, Forrest L. Hallin, on April 9, 1952, filed a motion to vacate the allowance of said claim and on October 6, 1952, he also filed a petition to the same effect. Both the motion and petition were filed in the County Court of Henry County. Motions to dismiss said motion to vacate and petition to vacate were filed by the Executor of the Taylor Estate and the Administrator of the Hallin Estate and both were granted by the County Court on December 23, 1952, and the petition to vacate was dismissed. An appeal was then taken to the Circuit Court of Henry County by the petitioner, Luther Broodeen. Luther Broodeen died and Agnes D. Broodeen, as Administrator of the Estate of Luther Broodeen, deceased, and individually was substituted as the petitioner. The Circuit Court of Henry County heard arguments on the motion to dismiss the petition filed by the Administrator of the Hallin Estate. While the matter was under advisement by the Circuit Court, the petitioner, on December 16, 1958, asked leave to amend the petition by adding additional allegations charging a fraud on the County Court in the allowance of said claim. The Executor of the Taylor Estate filed written objections to the amendment as offered and leave to amend was denied.
On February 2, 1959, the Circuit Court sustained the motion to dismiss and dismissed the petition to vacate the allowance of the claim. The petitioner thereupon filed a motion to vacate the order of the Circuit Court and requested leave of court to amend her petition by filing an entirely new and revised petition, which was tendered for filing with the motion. The motion to vacate the order dismissing the petition and the request for leave to file a new amended petition were denied.
The petitioner-appellant contends that the allowance of the claim under the circumstances alleged in the first petition was founded on fraud and mistake and the allowance of the claim should be vacated and the Taylor Estate required to prove its claim. Petitioner further argues that if the first petition was insufficient to show fraud and mistake the petitioner should be permitted to amend her petition.
The respondents'-appellees' theory is that the promissory note was a valid claim and the administrator was justified in consenting to its allowance. Respondents further contend that Luther Broodeen was guilty of laches in waiting more than two years to file his petition to set aside the claim and that the petition alleged no facts showing fraud, accident or mistake to justify the court in setting aside the judgment allowing the claim more than thirty days after its rendition.
The petition to vacate the allowance of the claim alleges that on July 26, 1949, the Commercial National Bank of Peoria, as Executor of the Will of Robert E. Taylor, deceased, filed its claim for principal and interest on a certain promissory note attached thereto in the amount of $4,352.95; that on or before October 4, 1949, Lyman Gustus, as Administrator of the Estate of Forrest L. Hallin, deceased, by endorsement on said claim waived service of process thereon and entered his appearance to said claim and consented to its allowance in the amount of $4,352.95; and that the same was thereupon allowed by the County Court on October 4, 1949. The petition further alleges that the note is dated February 19, 1937, and payable on demand to R.E. Taylor; that it is signed by the said Forrest L. Hallin and that the ten year Statute of Limitations on the prosecution of said note expired on February 19, 1947; and that the said Administrator of the Estate of Forrest L. Hallin, deceased, did not interpose or file any plea of the Statute of Limitations. The petition continued and alleged, in part, as follows:
"Your petitioner further shows that he had no knowledge or notice of said note or the filing of said claim thereon or the allowance thereof, until some weeks after the filing of the petition to sell real estate to pay debts in said estate, on or about October 6, 1949, when he prepared a pleading to said petition, and since said date petitioner has diligently investigated the facts with reference to said note and claim and finds there is no evidence which can be presented in this court to overcome the defense of the Statute of Limitations, if the same is interposed, to said claim, and, if said defense had been interposed, to said claim, and, if said defense had been interposed against the said claim, it would have been disallowed.
"Your petitioner further alleges that it was the legal duty of the said Gustus as administrator to raise the defense of the Statute of Limitations and file a pleading in answer to said claim and require the complainant to produce evidence to prove said claim before the same was allowed, and the failure to file such plea and answer and require such proof was a mistake, and the allowance of said claim should be set aside and vacated.
"Your petitioner shows that he is one of the heirs at law of the said Forrest L. Hallin, deceased, and has an undivided interest in all of the real estate and personal property in this estate." (Emphasis Added.)
The respondents-appellees to support their position rely heavily on Ford v. First Nat. Bank of Stuart, Iowa, 201 Ill. 120, 66 N.E. 316, stating that this case is squarely in point for the proposition that the allowance of a claim against an estate is conclusive so far as the personal property of the estate is concerned and that it is not within the function of the court to permit other persons to attack the allowance in the method here attempted for the reason that it would be an intolerable burden to require the claimant to litigate against all other parties. We cannot agree that the Ford case, supra, is authority for the decision of the trial court in the instant case. In the Ford case, supra, there was a petition by a creditor against an estate and other creditors asking for a re-classification of claims allowed. This petition by the creditor was filed more than a year after all of the claims had been allowed and classified. The petition did not allege nor did petitioner contend that the judgment classifying the claims was entered by fraud, accident or mistake. The County Court refused to re-classify the claims, which order of the County Court was reversed by the Circuit Court on appeal, and affirmed by the Appellate Court. The Supreme Court reversed the Circuit Court and Appellate Court and upheld the action of the County Court in denying a re-classification. The Supreme Court stated at pages 128 and 130 of 201 Ill. and at page 318 of 66 N.E., the following:
"Upon the allowance of a claim against an estate, each creditor, if he deems himself aggrieved, has a right to an appeal or to a writ of error, and failing to exercise this right the judgment is conclusive as to him, and in the absence of fraud, accident, or mistake the judgment of the county court cannot be vacated at a subsequent term by the court. . . .
"It is not contended by appellee that the judgment of the county court allowing the claim and classifying it as of the sixth class was entered by fraud, accident, or mistake, and appellants, having litigated their claims with the legal representatives of the estate, should not be compelled to again litigate them with the creditors of the decedent, who were all represented in court by the legal representative of said estate." (Emphasis Added.)
In Schmalz v. Strang's Estate, 298 Ill. App. 427, 19 N.E.2d 203, a claim was allowed on November 27, 1934, by consent of the administrator of the decedent's estate in favor of Anna Cowen, later represented by Mildred Strang Schmalz, her administrator. A motion to vacate the claim was filed on December 27, 1934, which was alleged to be later than thirty days after the judgment allowing the claim. The County Court and the Circuit Court, on appeal, dismissed the motion to vacate the claim but the Appellate Court reversed the judgment and remanded the cause with directions to hear the motion to vacate the claim, and if fraud or mistake entered into the allowance of the claim, the trial court was to vacate the ...