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In Re Estate of Dunn

JUNE 30, 1965.

IN RE ESTATE OF SETHARD P. DUNN, DECEASED. FREDERICK B. THOMAS AND ROSE GAITHER, PETITIONERS-APPELLANTS,

v.

EZEKIEL J. MORRIS, JR., AND JOHN A. SANDERS, EXECUTORS-APPELLEES.



Appeal from the Circuit Court of Cook County, Probate Division; the Hon. PAUL M. WRIGHT, Judge, presiding. Affirmed.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

Sethard P. Dunn, founder and pastor of the Church of God of Chicago, died testate November 13, 1959. By the terms of his will admitted to probate January 22, 1960, the trustees of the Church were named executors and were directed to pay all his just debts, taxes and funeral expenses. It further provided for certain bequests to his wife, relatives, friends and the remainder of the estate to be paid to the Church of God of Chicago as residuary legatee.

Ezekiel J. Morris, Jr. and John Sanders, trustees of the Church, were appointed executors. They filed, and the court approved, an inventory on March 25, 1960, showing personal assets of the estate in the amount of $153,818.18.

On March 16, 1961 the executors' final account was filed and hearing was had thereon in the probate court, notice of said hearing having been given to the heirs, devisees and the residuary legatee. "And it appearing to the court that all assets have been collected, no claims have been filed against said estate; that the Federal Income Tax, Personal Property Tax, court costs and all other costs and expenses of administration have been paid and said estate has been distributed according to the Last Will and Testament of said decedent," the final account was approved, executors were discharged and the estate declared settled.

On October 10, 1961 the probate court on its own motion, "it appearing to the court that certain irregularities may exist herein, and for the best interests of the estate and all parties of interest," appointed an amicus curiae for the purpose of investigating all matters pertaining to the estate and to report to the court forthwith.

On December 11, 1961, appellant-petitioners, Frederick B. Thomas and Rose Gaither, together with Eddie Dillon, *fn1 represented by counsel, filed a petition as "members of the Church of God, together with all other members of the Church of God," charging that gross irregularities existed in the administration of the estate; that the final account filed and approved was not a true account of the actions of the executors; and that they believed the probate court was imposed upon. The petitioners further charged that funds constituting part of the estate, not listed in the inventory, were converted to the use of the executors and others unknown; that the executors having dissipated all the cash funds of the estate now threatened to mortgage or otherwise dispose of real estate belonging to the estate; and that "solely by virtue of their position as officers of this court they have seized control of the Church of God, dissipated the cash inheritance of the membership and violated their oaths of office and their obligations" to the court. Petitioners prayed the approval of the "Final Account" be set aside and the estate reopened.

The executors filed an answer alleging that the Church was a religious corporation, and that petitioners were disgruntled former members thereof. They denied the charges made against them and stated they acted in good faith, rendering a true accounting, which actions and accounting had been approved by the court. They asked the petition be dismissed and the final account stand approved.

On February 2, 1962, the amicus curiae filed his report wherein he stated that he (1) conferred with the members of the Church who presented the petition; (2) discussed the allegations with their attorney; (3) appeared in court when the petition was filed and thereafter; (4) examined the court file; (5) conferred with an attorney for the executors; (6) examined his records; and (7) conferred with an assistant to the probate court. After reciting the charges made in the petition and answer thereto, he concluded "that the allegations of the petition would, if proven, justify the reopening of the estate, and that the evidence submitted to the undersigned by the executors, if sustained by the proper proof, would entitle them to a dismissal of the petition." He reported that the petition created an issue of fact which could not be resolved without a hearing or trial "in accordance with the established rules of procedure." The amicus curiae further reported that on December 22, 1961, Judge James Cooney dismissed a petition seeking the same relief on the ground that the petitioners, who were members of the "Church," a religious corporation, were not individually parties in interest to permitting them to seek the relief that was sought, and that the present petition was in the name of the "Church," a religious corporation, by Rev. Thomas and Rose Gaither, as agents of the "Church," and also individually as members of the Church. There existed the question of whether the petitioners were such parties in interest as would entitle them to the relief sought. The petition raised a question of fact and law as to whether the named individuals were, in fact and in law, agents of the "Church" and authorized by it to file and prosecute the instant petitions.

On May 11, 1962, other counsel was substituted for by the petitioners, and all future notices, by order of court, were to be served upon them.

On July 6, 1962 the court overruled the motion to strike and dismiss "the second petition of said Rev. Frederick B. Thomas and Mrs. Rose Gaither," vacated the order approving the final account and reopened the estate "for all intents and purposes."

Petitioners, on September 24, 1962, obtained an order that their attorneys be given notice of all proceedings relating to the estate, and that they be given 90 days within which to file objections to the final account. On December 27, 1962, they requested a further extension of sixty days. Although the executors answered by objecting thereto, on March 13, 1963, by stipulation of the parties an order was entered granting petitioners an extension until May 17, 1963.

On September 4, 1963 the executors, after notice served upon the attorneys for petitioners, filed a verified petition to vacate the nunc pro tunc order of June 29, 1962, reopening the estate. The court, after finding that the petitioners had failed, though given several continuances, to file specific objections to the final account, and that petitioners had failed to appear upon proper notice given their attorneys, ordered that the June 29 nunc pro tunc order be vacated; that the final account stand approved and that the executors be discharged.

On September 25, 1963, without notice, petitioners Frederick B. Thomas and Rose Gaither "members in good standing of the Church of God, a religious corporation" filed in the probate estate a "Petition For The Removal Of Ezekiel J. Morris, Jr. and John S. Sanders, Co-executors Of The Above Estate, Because Of Waste, Mismanagement And Embezzlement Of The Assets Of The Estate." The petition was filed and presented by counsel, other than previously indicated in the record, as representing the petitioners. The probate court allowed the petition to be filed instanter, and citations issued against the executors, returnable on October 14, 1963. The same attorney, on October 8, 1963, after serving notice on counsel for the executors, presented a petition in his own name to vacate the order of September 4, 1963. He asked that he be permitted to formally enter his appearance as attorney for the petitioners and requested that the court declare that the orders of September 25, 1963, granting the petitions for citations and allowing the citations to issue, amounted to a vacating and setting aside of the order of September 4, 1963.

After hearings on the pleadings, briefs and oral arguments, the probate court denied the petition to vacate its order of ...


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