Appeal from the Circuit Court of Cook County, Probate
Division; the Hon. FRANK M. SIRACUSA, Judge, presiding. Reversed
and remanded with directions.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Lorraine E. Steffens filed a petition to admit to probate the will of Mary B. Koss, under which she was the executrix and sole beneficiary. After a hearing thereon the will was refused probate and an order was entered denying the petition. Petitioner appeals from that order and from various other orders entered during the course of the proceedings. Appellee, the County of Cook (to which the estate of the decedent would escheat under the intestate laws if the will was refused probate) filed a motion in this court to dismiss the appeal on the ground that appellant failed to file a notice of appeal within the time allowed by section 76 of the Civil Practice Act.
Motion to Dismiss the Appeal
The order denying the petition to admit the will to probate was entered on November 23, 1965, and the notice of appeal was filed on January 20, 1966, 58 days from the entry of the order. At the time the judgment order was entered section 76 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 76) allowed 60 days to file a notice of appeal. Section 76 was amended on May 19, 1965, by an act effective January 1, 1966, shortening the period allowed for filing a notice of appeal to 30 days. In its motion appellee contends that the 30-day limitation in the new act is applicable to this appeal, notwithstanding that the 30-day period would expire prior to the effective date of the act. In support thereof appellee asserts that:
The new Section 76 was published in the 1965 Illinois Revised Statutes along with the old Section 76. The old Section 76 was preceded in the Statutes with the notation, "Text of Section 76 until Jan. 1, 1966," while the notation "Amendment of 1965, effective Jan. 1, 1966" preceded the new Section 76. By so doing the Legislature gave full notice that the time requirement for filing a notice of appeal, a procedural matter, was being changed.
In opposition to the motion appellant argues that article VI, section 7, of the Illinois Constitution (Ill Const art VI, § 7 (1964)) effective January 1, 1964, provides that "appeals from final judgments of a Circuit Court lie as a matter of right to the Appellate Court in the District in which the Circuit Court is located"; that the constitutional right attaches at the time the final appealable order is entered; that at the time thereof she was allowed 60 days in which to file a notice of appeal; and that the time period, being constitutional in nature, cannot be retroactively shortened by the legislature.
We believe that the case of George v. George, 250 Ill. 251, 95 NE 167, is directly in point. In that case a writ of error to review a decree entered on March 29, 1907, was issued on September 20, 1910, more than three years after the entry of the decree. When the decree was entered there was a five-year statute of limitations for prosecuting a writ of error, which period was shortened to three years by a new act effective July 1, 1907. The court held the five-year period to be applicable and stated at pages 253-256 that:
The jurisdiction of this court to review the judgments and decrees of trial courts in this class of cases by writs of error does not depend upon the statute. That jurisdiction is conferred by the constitution, and the right to sue out a writ of error is a constitutional right and must be allowed when claimed. (Schlattweiler v. St. Clair County, 63 Ill. 449.) Section 2 of article 6 of the constitution provides that the Supreme Court shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases. Section 8 of the same article provides that appeals and writs of error may be taken to the Supreme Court. In this case a freehold is involved, and the parties to this decree have a constitutional right to sue out a writ of error in this court to review that decree. It is not within the power of the legislature to deprive the Supreme Court of the jurisdiction to review such cases by writs of error or in any manner to abridge that jurisdiction, but the legislature may by proper enactment regulate the practice in respect to writs of error and may limit the time within which writs of error may be sued out of this court. Section 117 of the Practice act of 1907 does not attempt or pretend to confer jurisdiction upon the Supreme Court to review judgments and decrees by writs of error, but merely limits the time within which such writs may be sued out. It is strictly a statute of limitations and must be construed as such.
In that case [referring to Hathaway v. Merchants' Trust Co., 218 Ill. 580] we held that the section of the Administration act fixing the time for filing claims against an estate is not a statute conferring jurisdiction but is a limitation act, which will not be given retroactive effect in the absence of clear legislative intention, and that the act, as amended by the act of 1903 reducing the time for filing claims to one year [after the issuance of letters testamentary], does not apply to claims against an estate upon which letters testamentary had been granted before the act took effect. [In the instant case] there is nothing in section 117 of the Practice act of 1907 which indicates that the legislature meant it to be retroactive in its effect.
In addition to the general rule that limitation acts will not be given a retroactive effect in the absence of clear legislative intention, section 4 of the act to revise the law in relation to the construction of statutes *fn1 provides that no law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any right accruing or claim arising under the former law, or in any manner whatever to affect any right accruing or claim arising before the new law takes effect. The right of plaintiffs in error to sue out a writ of error from this court to review the decree of the superior court of Cook County, and thus begin a new suit, accrued at the time that decree was entered, and therefore was a right accruing under the law in effect at that time. The statute at that time provided that a writ of error should not be brought after the expiration of five years from the rendition of the decree or judgment complained of.
Defendants in error insist, however, that as this decree was rendered on March 29, 1907, and the new Practice act became effective on July 1, 1907, plaintiffs in error had almost three years within which to sue out this writ of error after that act became effective, and that as this must be held to be a reasonable time, the new limitation should prevail in this case. This act must be applied generally to all causes of action accruing before the act of 1907 became effective. It cannot be said that the act will apply in one case and not in another.
[1-3] Jurisdiction of the Appellate Court is now conferred by the Constitution, and the right to appeal is guaranteed by the Constitution. Therefore section 76 of the Civil Practice Act cannot be construed as a statute conferring jurisdiction but instead must be construed as a limitation act. Since a limitation act will not be given retroactive effect in the absence of clear legislative intention (George v. George, supra), and no such intention appears from an analysis of section 76, that limitation act which was in effect at the time the right to appeal accrued is applicable. *fn2 Thus, the petitioner in the instant case had 60 days from the entry of the final appealable order in which to file a notice of appeal. Marlas v. Virekeos, 14 Ill. App.2d 1, 142 N.E.2d 808, relied upon by the appellee, is inapplicable because at the time of that case Appellate Court jurisdiction was not conferred by the Constitution nor was the right to appeal guaranteed by the Constitution. In Exchange Nat. Bank v. Village of Skokie, 71 Ill. App.2d 215, 217 N.E.2d 336, a case relied upon by appellees which was subsequent to the effective date of section 7 of article VI of the Constitution, an argument based upon George v. George, supra, was not presented in opposition to the motion to dismiss. Our opinion was incorrect and is hereby overruled. *fn3
Since the notice of appeal was filed 58 days after the entry of the final appealable order, appellee's motion to dismiss the appeal is denied.
Admissibility of the Will to Probate
On May 26, 1965, the decedent (Mary B. Koss) purportedly executed her last will and testament in which she left her entire estate to a longtime friend, Lorraine E. Steffens (also known as Lorraine Hamann), who was also named as executor. Mary Koss died two days later, leaving no known heirs at law. The alleged will was witnessed by two persons, Armelia Warren and Marie Redmond, both of whom were employed as ...