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Marion v. In Re Estate of Wegrzyn

MARCH 20, 1968.

OSCAR MARION AND SOPHIE MARION, CLAIMANTS-APPELLANTS,

v.

IN THE MATTER OF THE ESTATE OF STANLEY WEGRZYN, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County, County Department, Probate Division; the Hon. JOHN E. PAVLIK, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Claimants appeal from an order refusing to strike defendant's answers to the bills of particulars and from a dismissal of their claims.

On June 2, 1966, claimants filed claims alleging performance of services for decedent in his tavern from April 1944 to August 1954. Oscar Marion claimed $13,000 and Sophie Marion $13,180. On August 26, 1966, defendant moved for a bill of particulars requesting that claimants set out whether the contract for services was oral or written, the nature of the work performed and whether any money or consideration was paid to claimants during decedent's lifetime. Claimants filed their particulars stating that they had been employed by Mary Wegrzyn, deceased wife of decedent, on or about June 1944; that their services were terminated on September 21, 1956; that decedent was fully aware of these employments. They then described their work and alleged that Oscar was due $49,303.50 at the prevailing rate of $1.50 per hour and that Sophie was due $26,551.20 at $1.25 per hour. Amended claims were filed and answers thereto demanded strict proof, denied the services and asserted a bar of the Statute of Limitations. On motion of defendant amended claims were stricken on the ground that they were barred by the five-year limitation of the Statute of Limitations *fn1 and second amended claims were filed on January 4, 1967. These alleged that personal services were rendered to decedent from June 1944 to September 1956 and that on numerous occasions within the last five years decedent acknowledged that he was indebted to and owed claimants money for services performed by them. Defendant's answers to the amended claims were ordered to stand as answers to the second amended claims. On March 21, 1967, defendant asked leave of court to answer the bills of particulars and filed answers neither admitting nor denying the allegations inasmuch as the coexecutors had insufficient knowledge.

On April 19 the claimants moved to strike the answers as not in compliance with section 37(3) of chapter 110, Illinois Revised Statutes (1965). This section provides:

If a bill of particulars, in an action based on a contract, contains the statement of items of indebtedness and is verified by oath, the items thereof are admitted except in so far as the opposite party files an affidavit specifically denying them, and as to each item denied states the facts upon which the denial is based, unless the affidavit is excused by the court.

Claimants urge error in the court's refusal to strike defendant's answers to the bills of particulars. These sworn answers stated that the coexecutors had insufficient knowledge to form a belief as to the truth and veracity of the claims and asked for strict proof. Plaintiffs contend that defendant's failure to specifically answer each item constituted an admission under section 37(3). The Historical and Practice Notes to that section state that section 37(3) "should be read with Section 40(2)" which states:

Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his pleading that he has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has had no opportunity to deny.

We find no logic in an interpretation under which a defendant who has sworn he has no knowledge of the facts and is seeking specific information is deemed to have admitted those very facts because he has not denied them. The court did not err in refusing to strike the answers to the bills of particulars.

We would also point out that the bills of particulars related to the original claims. A bill of particulars is deemed to be part of the complaint which it particularizes (Louis v. Barenfanger, 81 Ill. App.2d 104, 226 N.E.2d 85). Therefore, when the original claims were superseded by the second amended claims, the bills of particulars no longer applied. See Cantow v. Foute, 335 Ill. App. 574, 82 N.E.2d 696 (abst.).

Furthermore, when the court refused to strike the answers to the bill of particulars, this action could be construed as an exercise by the court of its statutory discretion to excuse an affidavit of denial. Ill. Rev Stats, c 110, § 37(3), quoted above.

There was no evidence introduced at the trial as to the nature and extent of the claimed services. It was stipulated that two witnesses would testify to certain wage scales for general work in a tavern and for a bartender.

Other evidence was submitted by claimants consisting of the depositions of six persons to show that decedent had acknowledged that he was indebted to and owed money to claimants for services rendered to him. Three of the witnesses testified to the same conversation of April 1965. One stated that decedent had said to the claimants:

You have done so much for me during the time you have worked for me. I will ...


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