Appeal from the County Court of Wabash County; the Hon.
CLARENCE E. PARTEE, Judge, presiding. Reversed and remanded with
Rehearing denied April 16, 1964.
Ethel A. Viehman died on July 17, 1963, leaving Camille C. Viehman, her daughter and only heir at law, her surviving. John Estes Schrodt is her brother and Mary L. Andrews is her sister. At the time of Ethel A. Viehman's death and for many years prior thereto, E. Guy Mundy, by appointment of the County Court of Wabash County, was acting as Conservator of her estate, and also Conservator for her daughter, Camille C. Viehman.
On August 6, 1963, John Estes Schrodt filed a petition in the County Court of Wabash County alleging that he was the brother of Ethel A. Viehman, reciting that her only child, Camille C. Viehman, was incompetent and requested the appointment of E. Guy Mundy as Administrator of the estate of Ethel A. Viehman, deceased. In this petition no mention was made of Mary L. Andrews. On August 14, 1963, Mr. Mundy filed an administrator's bond in the sum of $120,000, subscribed to the required oath, and letters of administration were duly issued to him.
The following day, August 15, 1963, Mary L. Andrews filed her petition in the same court alleging that she was the sister of decedent, and requesting that letters of administration be issued to her brother, John E. Schrodt. On the same day John E. Schrodt filed another petition praying that the letters of administration issued to Mundy be revoked, and that he, Schrodt, be appointed administrator. On the same day Schrodt and Mary L. Andrews also filed a motion to vacate the order appointing Mundy as administrator.
On August 23, 1963, Mundy filed two motions, one sought to strike the motion of Schrodt and Mary L. Andrews to vacate the order appointing him as administrator, and by the other motion Mundy sought to strike the petition of Schrodt to vacate the order appointing him, Mundy, as administrator.
On August 23, 1963, Mundy also filed his petition for an order confirming his appointment as administrator. On August 26, 1963, Mary L. Andrews filed an amended petition, alleging she was a sister of decedent and requesting that the appointment of Mundy as administrator be revoked and that letters of administration be issued to her "and/or John E. Schrodt."
Following a hearing of all the pending motions and petitions, at which hearing all parties were represented by counsel, the court entered an order denying the several motions and dismissing the several petitions. The effect of this order was to leave the order of August 14, 1963, appointing E. Guy Mundy, administrator of the estate of Ethel A. Viehman, deceased, in effect. It is to reverse that order and the court's several orders dismissing the several petitions, that this appeal is prosecuted by John E. Schrodt, and Mary L. Andrews.
There is no dispute about the facts. The record discloses that Ethel A. Viehman died on July 17, 1963, and at the time of her death was incompetent and under conservatorship; that her only child and heir, at the time of her death, was Camille C. Viehman, who was also incompetent and under conservatorship at the time of the death of her mother; that appellants, John E. Schrodt and Mary L. Andrews were brother and sister, respectively, of decedent; that appellee, E. Guy Mundy, at the time of the death of decedent, was, by appointment of the County Court of Wabash County, her duly appointed, qualified and acting conservator, and also the duly appointed, qualified and acting conservator for Camille C. Viehman; that the original petition filed by John E. Schrodt, recited that the daughter, Camille E. Viehman was incompetent, but it made no reference to appellant, Mary L. Andrews, and contained no recitals as to her relationship to decedent or her address, and she had no notice of the filing or pendency of the petition of her brother to have Mr. Mundy appointed administrator and knew nothing of his appointment until after he had qualified and after letters of administration had been issued to him.
The Probate Act provides:
"Revocation of Letters and Issuance of New Letters of Administration Preference"
"If the clerk of the probate court has not mailed as provided in this Article a copy of the petition for letters of administration to any person, whether or not named in the petition, who is entitled to administer or to nominate a person to administer in preference to the petitioner, the person entitled to preference within three months after the issuance of the letters may file a petition for issuance of letters to him or to his nominee. The person entitled to preference shall give ten days notice of the hearing on his petition to the person to whom letters were issued. Upon the hearing the court may issue letters to the person entitled to preference or his nominee and revoke the letters previously issued. The person whose letters are revoked shall forthwith deliver to his successor the estate of the decedent which has come to his possession subject to the proper disbursements made and proper expenses incurred by him before the revocation of his letters." (Ill Rev Stats 1963, c 3, § 102).
It is conceded that Camille C. Viehman, the only child of decedent was not qualified to act as administrator of the estate of her deceased mother. (Ill Rev Stats, c 3, § 94.) Not being qualified to act as administrator, she had no right to nominate. (Ill Rev Stats c 3, § 96.) Under the heading: "Persons Entitled to Preference in Obtaining Letters," the Probate Act provides: "The following persons are entitled to preference in the following order in obtaining the issuance of letters of administration, . . . (5) The brothers and sisters or any person nominated by them." (Ill Rev Stats, c 3, § 96.) "When several persons are claiming and are equally entitled to administer or to nominate an administrator, the court may grant letters to one or more of them or to the nominee of one or more, preferring those of the whole blood or their nominee to those of the half blood or their nominee. (Ill Rev Stats, c 3, § 97.) Section 101 of the same Act provides: "Upon the hearing of the petition for letters of administration, the court shall issue the letters to the petitioner or his nominee unless letters are sought by a person entitled either to administer or to nominate a person to administer in preference to the petitioner."
Counsel for appellee, in order to sustain the order appealed from, insists that since he was nominated by John E. Schrodt, a brother of decedent, one of two persons entitled to a preference, he stands in the same position as John E. Schrodt, had he, Schrodt, been appointed upon his own petition. Counsel argue that the statute did not require petitioner to give to his sister or to anyone else any notice; that notice to other members of the same class is not required; and that notice is only required to be given to persons entitled to administer, or to nominate in preference to petitioner. Counsel, therefore, conclude that ...