Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. ROBERTS, Judge, presiding. Affirmed in part, reversed in part
and remanded with directions.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken from a judgment entered in the Circuit Court of Cook County in favor of plaintiffs Helen C. Andrykowski, individually and as administrator of the estate of Phillip J. Arendt, George Arendt, Frank Arendt, Walter Arendt, Edward Arendt, John Arendt, George Andrykowski, and Judy Andrykowski, a minor by her next friend. From the record it appears that Emma R. Arendt (also known as Emma R. Arndt) died testate in Chicago, Illinois on November 23, 1947 seized in fee simple of a certain parcel of real estate located at 5015 North Spaulding Avenue, Chicago, which parcel is improved with a two-flat building and was the decedent's sole asset. The will of Emma Arendt was filed with the Probate Court of Cook County, Illinois on May 6, 1948. On October 29, 1956 application was made for its admission to probate after proper notice had been given. The Probate Court of Cook County, after a hearing, admitted the will to probate without contest on December 21, 1956, and letters testamentary were issued to John Theis, the executor named in the will and one of the defendants in this case. The will contained the following provisions, among others:
"THIRD: I give, devise and bequeath to my husband PHILLIP JOSEPH ARNDT, the right during his lifetime to occupy the real estate and improvements thereon known as 5015 North Spaulding Avenue, Chicago, Illinois, and to collect the income therefrom, subject, however, to the payment by my said husband of all real estate taxes levied against said property and the payment of all bills for repairs and improvements at any time made on said premises.
"FOURTH: I give, devise and bequeath all the rest, residue and remainder of my Estate, real, personal and mixed, of every kind and character, as follows towit:
"An undivided one-third thereof to my brother, ROBERT THEIS, him and his heirs forever.
An undivided one-third thereof to my brother, GEORGE THEIS, him and his heirs forever.
An undivided one-third thereof to my brother, JOHN THEIS, him and his heirs forever."
The said real estate had been the sole property of Emma R. Arendt prior to the time of her marriage to Phillip J. Arendt, and the legal title was in her name alone at the time of her death. Phillip J. Arendt, the life tenant under the said will, occupied said property for approximately nine years after the death of his wife, collected and retained all of the rents therefrom, and made no accounting of the same to anyone. He died intestate on October 2, 1956 in Chicago, Illinois and a petition was filed with the Probate Court of Cook County by Helen C. Andrykowski, one of the plaintiffs here, for letters of administration, which were issued on November 19, 1956. The only asset listed in the inventory in the said estate was an alleged one-half interest of Phillip in the aforesaid real estate of his deceased spouse.
On January 28, 1957 the said Helen C. Andrykowski, as administrator, filed an ex parte petition in the Probate Court of Cook County for an order whereby the said court would give the administrator leave to file, on behalf of Phillip J. Arendt, a renunciation of the will of Emma R. Arendt. No notice was given, and the Probate Court, without hearing, entered an ex parte order which provided that the court "approved" the election to renounce the will, and directed the administrator of the estate of Phillip J. Arendt, on behalf of said decedent, to file a renunciation of the said will in the estate of Emma R. Arendt. The administrator did file with the Clerk of the Probate Court of Cook County, on behalf of the deceased Phillip J. Arendt, a renunciation of the will of Emma R. Arendt, which renunciation was executed by the said administrator of the estate of Phillip.
On April 23, 1958 Helen C. Andrykowski, individually and as administrator of the estate of Phillip J. Arendt, together with the other plaintiffs herein mentioned, filed their complaint in the Circuit Court of Cook County for a partition of the aforesaid real estate, claiming an undivided one-half interest therein pursuant to the aforesaid renunciation. A motion to strike the complaint was filed. The plaintiffs thereupon by leave of court filed an amended complaint.
Count I of the amended complaint prayed for a declaratory judgment, setting out, among other things, that an actual controversy existed between the parties to this action with respect to the title to the real estate as to whether or not the plaintiffs are seized of an undivided one-half interest in the property in common with the defendants, and it further set out the contentions of the defendants that the provisions of the will of Emma R. Arendt vested the entire fee simple title to the property in the defendants after the death of Phillip, and that the right of the surviving spouse to renounce the provisions of the will was a personal right which after the death of the surviving spouse could not be exercised by anyone on his behalf.
The plaintiffs alleged that on the death of Emma R. Arendt an undivided one-half interest in the real estate in common with the defendants was vested by operation of law in Phillip Arendt, her surviving spouse, and upon his death it vested by operation of law in the plaintiffs individually, and that the admission of the will of Emma to probate two months after the death of Phillip did not alter or affect the title so vested, and alleged in the alternative that if the admission of the will did affect the title, the renunciation was proper and nullified and rejected the effect of the provisions of the will of Emma. The plaintiffs prayed for a declaratory judgment. Count II was a complaint for partition.
An answer was filed by John Theis to Count I of the amended complaint, and leave was given him to defer answering Count II until after a final determination was made on Count I. On November 7, 1958 the court entered an order transferring Count I of plaintiffs' amended complaint to the law side of the court for hearing on the question of the declaratory judgment.
The parties entered into an agreement for the sale of the property and the substitution of the money received for such sale as the subject matter of the suit. The property was sold and all of the parties having any possible interest to the fee in the real estate executed and delivered quitclaim deeds. The money was deposited with the Chicago Title and Trust Company subject to the further order of the court. On June 13, 1960 John Theis filed a petition setting up that agreement and asking for an order substituting the proceeds of the sale for the real estate originally sought to be partitioned, and for a finding that all of the plaintiffs and all of the defendants now have no right, title or interest to the said real estate. On the same day the court entered an order reciting that the proceeds from the sale of the real estate, which is the subject matter of the suit, is substituted for and "in lieu of the said real estate as the subject matter of this cause of action," and the court ...