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Estate of Arcicov

APRIL 8, 1968.




Appeal from the Circuit Court of Cook County, Probate Division; the Hon. JAMES M. CORCORAN, Judge, presiding. Order reversed and petition dismissed.


This is an appeal from an order of the Probate Division of the Circuit Court of Cook County, which amended a table of heirship in a decedent's estate after the estate had been closed for five years. The petition to amend was in the nature of a petition under section 72 of the Civil Practice Act.

The petition filed by "The County of Cook" on February 21, 1962, shows that Alex Arcicov died intestate on December 12, 1955, a resident of Chicago. Letters of administration were issued to the then Public Administrator on December 13, 1955. After a hearing in which Joseph Majewski, respondent in the instant proceedings, testified that he was the only surviving child of the decedent and his first wife, a declaration of heirship was entered in the Probate Court of Cook County on January 19, 1956. The declaration found that Alex Arcicov, also known as Alexander Arcicov, also known as Andrzej Majewski, deceased, left him surviving as his only heir at law and next of kin, Joseph Majewski, a son, the respondent here.

The petition alleges that on April 23, 1956, October 31, 1956, and November 8, 1956, hearings were had in the Probate Court on motions of the Public Administrator to vacate the table of heirship. On November 8, 1956, the court overruled the motion to vacate the table of heirship, and on November 30, 1956, the estate was closed and distribution of the assets was made. The petition further alleges:

"9. Subsequently, documents, affidavits and certificates of birth, death and marriage certificates, relating to the decedent and Josef Majewski have been received by the State's Attorney of Cook County.

"10. That on January 27, 1962, an affidavit executed by Tesfil (sic) Krupinski, a nephew by marriage, but not by consanguinity, alleges that one Josef Majewski is not the heir of decedent, was received by the State's Attorney of Cook County. Said affidavit is attached to and made a part hereof.

"11. That said documents tend to prove that Josef Majewski in fact was not an heir of said decedent and thus falsely and mistakenly testified at the hearing on January 13, 1956.

"12. On information and belief based on the aforementioned documents, petitioner has reason to believe that the decedent `did in fact leave him surviving no known heirs at law.'

"13. Apropos above, the order of heirship entered on January 19, 1956, the escheat rights of Cook County, as provided for by paragraph 9, Section 11 of the Probate Act have been precluded.

"Prayer: That the above estate be re-opened; that the Order entered January 19, 1956, be vacated; that additional hearings be held so that a proper Order as to a true and correct heirship may be entered."

Subsequent to the filing of the instant petition, hearings were had and numerous documents, many in the Polish language, were received in evidence and over objections of respondent. On June 19, 1964, an order was entered in the Probate Court, which decreed "that the heretofore entered Table of Heirship be and is hereby amended to show that the decedent, Alexander Arcicov, died a resident of the County of Cook, State of Illinois, leaving no known heirs or legal representatives capable of inheriting the same." This is the order with which we are now concerned.

On appeal, the determinative contention of Joseph Majewski, the respondent, is that "the order amending the original declaration of heirship is void for want of jurisdiction of the subject matter and the court therefore erred in failing to sustain the defense of res judicata." Respondent's other contentions, which relate to the evidence admitted and the findings and conclusions of the trial court, need not be considered, and the motion of respondent to strike certain portions of the supplemental record, which was taken with the case, is hereby denied.

The contentions of petitioner, the County of Cook, include: (1) The trial court had jurisdiction to amend the original order of heirship; (2) Orders declaring heirship and closing an estate can be set aside at any time upon proper grounds; and (3) The order of heirship could be vacated because it was obtained by fraud.

The petitioner argues, "Traditionally, and by the very nature of heirship proceedings, orders setting forth a table of heirship or closing an estate have been subject to later amendment. As to heirships, ...

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