Appeal from the Circuit Court of DuPage County; the Hon.
WILLIAM C. ATTEN, Judge, presiding. Judgment affirmed.
MR. JUSTICE PETERSEN DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 4, 1966.
This is an appeal from an order of the Circuit Court of DuPage County dismissing plaintiff's complaint in a proceeding against the $10,000 bond of the Executor of the Estate of Walter Baker, deceased. The principal question for our decision is whether or not the amended complaint states a cause of action. A better understanding of the question involved in this appeal will come about if we review the context of prior litigation between the parties hereto, for the basic factual situation upon which this appeal arises, is set forth therein.
In Pratt v. Baker, 48 Ill. App.2d 442, 199 N.E.2d 307, (2nd Dist 1964), in an appeal involving two claims filed by George Pratt as Conservator for Gilbert Baker, alleged to be incompetent, against the Estate of Walter Baker, deceased, we held that those claims were barred by the failure to file within the time allowed by law. One claim was based on promissory notes signed by Walter Baker and dated some 40 years ago. The other claim was for services rendered by Gilbert Baker to the deceased during a period of nearly 30 years, beginning in 1930. The Probate Court of DuPage County, applying the general Statute of Limitations, disallowed the claim on the notes; the Court also disallowed the claim for services rendered more than 5 years prior to the claim, allowing only that portion of the claim based upon the rendering of services within the five-year period not barred by the general statute. We reversed the judgment that had been rendered in favor of the conservator.
In that case, inter alia, it was argued that the defendant Executor was estopped from raising the non-claim statute as a defense by reason of his failure to have a guardian ad litem appointed for Gilbert Baker, when he knew of Gilbert's incompetence. At page 446, the Court held that there was ample precedent against the use of estoppel to avoid the effect of the statute on non-claim and that neither an executor, legatee or distributee could waive the limitation on the presentation of claims. At page 443, on the subject of Gilbert Baker's incompetency, the Court stated:
"It appears that Gilbert Baker, although not insane, was mentally defective and regarded as not employable. He was taken into the home of his brother, Walter Baker, who provided room and board and some spending money, and Gilbert Baker performed such farm labor as was within his ability. He could do some types of physical labor if told what to do, but he was not competent to operate a tractor."
It is the same question of Gilbert Baker's alleged incompetency, and the related question of whether or not Roger Baker, as Executor of the Estate of Walter Baker, knew of this incompetency and failed to take the proper steps, that again emerge as the nub of the amended complaint, that is questioned in this present appeal. Let us look then at the substance of this amended complaint.
The amended complaint alleges that the defendant, having personal knowledge of the fact that Gilbert Baker was under a legal disability and not capable of managing his financial affairs, had one or more of the following duties:
(a) To advise the Court that an interested person was under a legal disability;
(b) To have a guardian ad litem appointed; and
(c) To indicate on the face of the petition for Probate that an interested person was under a legal disability.
The amended complaint further alleged that the defendant had violated these alleged duties; and it alleged that he had violated his Executor's Bond by one or more of the following acts or omissions:
(a) Defendant caused to be filed the Appearance and Waiver of Notice of Gilbert Baker, contrary to the law which allows for filing only for persons not under legal disability;
(b) Defendant failed to advise the Court of the legal disability of an interested person until long after the ...