Appeal from the Superior Court of Cook County; the Hon. WALKER
BUTLER, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 30, 1964.
Plaintiffs appeal from an order of the Superior Court dismissing for lack of jurisdiction their complaint to contest the will of Minna Rathje, deceased. *fn1
Plaintiffs, who are beneficiaries under a prior will, filed their original and amended complaints within the statutory nine-month period following the date of admission of the will to probate. Named as defendants were the executor under the probated will and the three beneficiaries thereunder, one of whom (the executor) happens also to be an heir of the decedent. As shown by the Declaration of Heirship on file in the Probate Court prior to probate of the will, there are some half dozen other heirs who were not made defendants. On this basis the named defendants moved to dismiss the amended complaint for failure to join all necessary parties within the time prescribed by law.
Plaintiffs filed countermotions asking the court to dispense with the necessity of joining the heirs as parties under the circumstances, or to permit them to be added as defendants in a second amended complaint to be filed nunc pro tunc as of the date of filing of the amended complaint.
After a hearing, the plaintiffs' motions were denied; the defendants' motion was allowed; and an order was entered dismissing the cause "inasmuch as this court is without jurisdiction in that all necessary parties to this cause of action were not made parties hereto and the time in which they may be made parties has expired."
The governing statutory language is found in Sections 90 and 91 of the Probate Act (Ill. Rev Stats 1961, c 3, §§ 90, 91) which read in pertinent part as follows:
Within nine months after the admission to probate of a domestic or foreign will in the probate court of any county of this State, any interested person may file a complaint in the circuit court of the county in which the will was admitted to probate to contest the validity of the will. . . .
The executor under the will or administrator with the will annexed and all heirs, legatees, and devisees of the testator shall be made parties to the suit.
Considering plaintiffs' first motion first, the argument is made that they should be excused from including the omitted heirs as parties because as heirs they have no interest in defending the will, and the presence of the heirs before the court would, therefore, serve no useful purpose; citing McCreery v. Bartholf, 305 Ill. 325, 137 N.E. 242; Krzeminski v. Krzeminski, 285 Ill. 113, 120 N.E. 560; and Crescio v. Crescio, 365 Ill. 393, 6 N.E.2d 628. *fn2 We agree with no part of this contention. The cases relied on were decided prior to the enactment of Section 91 of the Probate Act in 1939 which remained unchanged at the times pertinent to this litigation. Whatever latitude the courts may then have had in determining the essentiality of parties was effectively eliminated by the mandatory declaration of necessary parties in the statute. Furthermore, it cannot be assumed that success by the plaintiffs in the instant litigation would automatically be followed by probate of the prior will which they espouse. The possibility exists, therefore, that the heirs might eventually take decedent's estate, and thus have an interest in the litigation, if not in the defense of either will.
As to the second motion of plaintiffs, the request for a nunc pro tunc filing is inappropriate, the essential requisites for such relief being absent. A nunc pro tunc order, or an order permitting a nunc pro tunc filing, may properly be entered only for the purpose of making a present record of something previously done but unrecorded. Wiggins v. Union Trust Co. of East St. Louis, 266 Ill. App. 560, 562; In re Estate of Young, 414 Ill. 525, 534, 112 N.E.2d 113. It is corrective in character, not creative.
If allegations of fact calling for application of the nunc pro tunc principle were present in this case the fundamental question argued here would never be reached. Rather than affirm on so limited a ground, however, we shall consider, as have all parties and the trial court, that the question presented for decision is whether, under the circumstances of this case, the plaintiffs should be permitted to amend their complaint for the purpose of adding the heirs as defendants after expiration of the nine-month period following admission of the will to probate.
In the briefing of this question defendants have urged that Section 91 be read as though it were a part of Section 90, while plaintiffs contend that the two sections should be considered separately and not construed together. Both arguments conclude that construction of these sections in consolidated or separated form would be dispositive of the issue in the case. We think not. We shall attempt to make the proper interpretation of both parts of the statute regardless of their location in the same or different sections of the act, for surely they both have a bearing on the question presented, and neither can arbitrarily be ignored or given more weight than the other. The intention of the legislature must be deduced from examination of the whole statute. People ex rel. Nordstrom v. Chicago & N.W. Ry. Co., 11 Ill.2d 99, 106, 142 N.E.2d 33.
It is beyond dispute that the time limit for filing suit proclaimed in Section 90 is not the authorization of an affirmative defense in the nature of a statute of limitations (which would affect only the remedy and would be subject to waiver), but is rather a condition precedent to liability which must be complied with if the jurisdictional grant of the statute is to be invoked. This characteristic emerges from the fact that the cause of action is a creature of the legislature and not the codification of a common-law right. Masin v. Bassford, 381 Ill. 569, 571, 46 N.E.2d 366; Heuberger v. Schwartz, 41 Ill. App.2d 28, 30, 190 N.E.2d 163; and, by analogy to the Injuries Act, Wilson v. Tromly, 404 Ill. 307, 309, 89 N.E.2d 22.
Nor can there be any doubt that the time limit thus established constitutes an expression of public policy in favor of early determination of the ultimate validity or invalidity of wills admitted to probate. As stated by this court in Pedersen v. Dempsey, 341 Ill. App. 141, 143, 93 N.E.2d 85:
The statute limiting the time for filing a bill to contest a will was first fixed at five years, then reduced to three, then to two, and ultimately to its present period of nine months. The reason for these reductions in the time within which the validity of a will may be questioned is the pressing importance of securing an orderly settlement of estates, to prevent embarrassment to creditors and others, and to avoid as much confusion as possible in the vast amount of property rights and titles that pass through probate. So important has this been deemed by courts and legislatures that neither fraud and concealment, nor the admitted incompetency of an attesting witness nor even the insanity of an heir can upset an order of probate after the time allowed. (Citing cases.)
See also Heuberger v. Schwartz, 41 Ill. App.2d 28, 30, 190 N.E.2d 163.
Among the cases relied on by plaintiffs are two which were decided before the enactment of Section 91. In McCreery v. Bartholf, 305 Ill. 325, 137 N.E. 242 (1922), all necessary parties had been brought before the court by the original bill. After expiration of the statutory period, and after trial had begun, the complainant asked that his bill be dismissed. Thereupon one of the defendants sought to substitute himself as complainant to carry on the litigation. Applying strict construction of the statute authorizing the cause of action, the court denied the permission requested and dismissed the entire cause, holding that the would-be complainant could have made such a move before the time had run, but by his failure to act within the statutory period, he had lost his right to conduct the contest in his own name. The court stated flatly: "In this State the right to contest a will is purely statutory, and such right can be exercised only in the manner and within the limitations prescribed by the statute." (Page 326.)
Insofar as this decision is apropos at all (in the light of the later statute) it favors the position taken by the trial court in the instant case and urged upon us by the defendants. It is cited by plaintiffs, however, who ...