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Berber v. Hass

JANUARY 26, 1965.

MILDRED BERBER AND ALBERT HASS, PLAINTIFFS-APPELLANTS,

v.

ERNST HASS AND ELAINE HASS, HIS WIFE, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. JOHN J. LUPE, Judge, presiding. Order affirmed.

MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 2, 1965.

This appeal is taken from an order entered June 28, 1963, in the Superior Court of Cook County, Illinois, which dismissed the appellants' amended complaint. The dismissal of the action was urged by the appellees on the ground that the matter had been determined by a court of competent jurisdiction and was not open to collateral attack.

Mildred Berber and Albert Hass, brother and sister, filed their complaint in chancery against their brother Ernst Hass and his wife, Elaine. The complaint charged that Ernst Hass, while acting as executor of his mother's estate, improperly conveyed property belonging to the estate to himself and his wife, and asked that the deed be set aside as a fraud on the court and on the beneficiaries.

As their defense, the appellees pointed out that the entire matter was brought to the attention of the Probate Court, that a full hearing was had on the matter at which the appellants were present and represented by counsel, and that the Probate Court accepted the final account of Ernst Hass as executor and discharged him, declaring the estate closed. The claim was, therefore, that the complaint filed in chancery was barred by the previous judgment of the Probate Court.

The following information was before the Probate Court at the time it authorized the closing of the estate: Augusta Hass, mother of the appellants and of the appellee Ernst Hass, died January 31, 1962, leaving a last will and testament in which she appointed Ernst Hass and Mildred Berber coexecutors of her estate. Soon thereafter, Mildred Berber resigned, leaving her brother Ernst Hass as sole executor of their mother's estate.

Section 5(b) of the Will of Augusta Hass gave Ernst Hass a nine-month option to buy certain realty constituting the bulk of the decedent's estate at the valuation given it by the Cook County Assessor before the application of any State of Illinois Department of Revenue equalization factor. This allowed Ernst Hass to purchase a building and the land on which it is situated having a market value of over $100,000 for $47,373.

The appellee, Ernst Hass, obtained an order from the Probate Court on July 26, 1962, permitting him to sell the property to himself and his wife at the assessed valuation on the condition that the conveyance should be conditioned on, and executed simultaneously with, the deposit into the estate of the proportionate portion of the same sum. In other words, the court insisted that the transfer of title take place at the same time as, and not until, the appropriate sum of money was deposited into the estate account. The following day, July 27th, Ernst Hass conveyed the property to himself and his wife. The money, however, was not deposited into the estate account until October 26, 1962 — some three months later.

All this was brought to the attention of the Probate Court before the closing of the estate. No appeal was taken from the order of the Probate Court, and this action in equity was brought to set aside the conveyance. The first question we must answer is whether the appellants have used the proper method of challenging the action taken by the Probate Court.

[1-3] The appellants claim in their brief and in oral argument that the proper forum for setting aside a deed to real estate is a court of equity. As a general statement this may be true, but the rule is not universally applicable. It is well settled that Probate Courts may give relief of an equitable nature where justice so requires. In re Estate of Baughman, 20 Ill.2d 593, 170 N.E.2d 557 (1960). We do not say that Probate Courts have general chancery powers, but it has often been held that they will proceed in equity in cases of an equitable character pertaining to the administration of estates. In re Estate of O'Donnell, 8 Ill. App.2d 348, 132 N.E.2d 74 (1956). In re Estate of Thompson, 328 Ill. App. 103, 65 N.E.2d 131 (1946). We are of the opinion that this order of the Probate Court, setting forth conditions under which decedent's property may be disposed of, is a matter pertaining to the administration of estates such as to give the Probate Court equity powers to supervise the sale and set such sale aside where proper. These appellants, therefore, should have appealed from the Probate Court order rather than instituting a separate suit to set aside the deed, for the Probate Court had authority to approve or disapprove the conveyance.

The appellants have cited cases where it was held that instituting a new action in a court of equity was proper, but those cases are easily distinguishable from the case at bar. In re Estate of Klock, 282 Ill. App. 245 (1935), dealt with a situation where the Probate Court was asked to pass on the validity of an antenuptial agreement. It was held that the Probate Court was without authority to pass upon the matter. The court in its opinion cited Rook v. Rook, 111 Ill. App. 398 (1903), quoting:

"While it has been held that county and probate courts may exercise such equitable jurisdiction in the settlement of estates and allowance of claims, as is adapted to their organization and mode of proceeding . . ., and that whenever within the scope of the statutory jurisdiction confided to them, the relief to be administered, the right to be enforced, or the defense to an action properly pending before them, involved the application of equitable principles, their powers are commensurate with the necessity demanding their exercise, whether legal or equitable in their nature, . . ."

The test set forth in this passage is whether the claim is the type adapted to settlement in the Probate Court. The court, in deciding the Klock case determined that a Probate Court is not the proper place to thrash out whether or not an antenuptial agreement was procured through fraud. The Probate Courts are to supervise the administration of estates; the fraud alleged in the Klock case is too far removed from this area to be efficiently processed in the Probate Court, and it was so held.

In re Estate of Braje, 294 Ill. App. 377, 13 N.E.2d 821 (1938), is also cited by appellants in support of their claim that this matter was properly brought before a court of equity. In that case a suit was brought 18 months after the estate was closed, alleging that the deceased and his wife were never legally married. It was held that the ...


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