APPEAL from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of La Salle
County; the Hon. WALTER DIXON, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
This cause was originally commenced in 1960 as a proceeding in the circuit court of La Salle County to recover escheated property, and Joan Clarke Baxter and James Clark claim to have been made parties to that suit as "unknown owners". The trial court entered a decree dismissing the claim of the original plaintiffs, Nellie Gregory and Betsy Alice Clark, and holding that Joan Clarke Baxter and James Clark could not recover because of the limitation provisions of the Escheat Act. The original plaintiffs appealed to the appellate court and Joan Clarke Baxter and James Clark sought leave to file a cross appeal which the appellate court denied without opinion. We have granted leave to appeal from the appellate court's denial of that motion.
An understanding of the legal issues presented requires a detailed recitation of the background of this litigation. Walter Clark died intestate in La Salle County in 1950 leaving a substantial estate and no known heirs. In 1956 Walter Clark's estate was escheated to La Salle County. Thereafter in 1960 Nellie Gregory and Betsy Alice Clark commenced this action under the Illinois Escheat Act (Ill. Rev. Stat. 1959, chap. 49, par. 7), to recover the property, alleging that they were descendants of two first cousins of the decedent. The county of La Salle and "unknown owners" were made parties to that action. Thereafter 21 other claimants filed similar proceedings in the circuit court of La Salle County and these cases were consolidated with this case. In 1963 four additional claimants, including Eva Gladys Warner, filed their petitions under the Escheat Act in the Federal District Court, alleging jurisdiction on the basis of diversity of citizenship. All parties in the State proceedings were allowed to intervene in the Federal proceeding except for the present appellants who were denied leave to intervene on the ground that the limitations of the Escheat Act had run.
The claimants to the escheated property of Walter Clark involved in these separate proceedings are of three classes. The first, Nellie Clark Gregory and Betsy Alice Clark (plaintiffs in the circuit court), claims through illegitimate children of an aunt of the deceased. The second, Joan Clarke Baxter and James Clark (appellants here), claims through a child of an uncle of decedent. Therefore, the Gregory-Clark claim is through an illegitimate first cousin of decedent, while the Baxter-Clark claim is through another first cousin.
The third class of claimants, including Eva Gladys Warner, intervenor here and one of the plaintiffs in the Federal action, consists of first cousins once removed and their claim is premised upon the theory that neither of the two groups claiming through first cousins were capable of taking.
The issue of the right of the Gregory-Clark group to take is dependent on whether they can inherit through an illegitimate. This question was decided adversely to them in the circuit court, but that decision was reversed by the appellate court in Gregory v. County of La Salle (Jan. 1968, Docket 67-5), 91 Ill. App.2d 290, and the cause remanded, and is now pending.
The impediments to the Baxter-Clark claim are based upon the assertions that they are barred by the Escheat Act and that their rights have been previously adjudicated in both the State and Federal proceedings.
At the time of the death of Walter Clark, section 7 of the Escheat Act (Ill. Rev. Stat., 1949, chap. 49, par. 7,) allowed a claimant five years after an escheat order in which to file as an heir and claim escheated property. This statute also provided that persons who are infants, or of unsound mind or beyond the limits of the United States, had an additional five years after their disabilities were removed to claim escheated property. This section was amended in 1961 to provide as follows:
"The county treasurer shall keep just and true accounts of all moneys paid into the treasury, and if any person appears within 10 years after the death of the intestate and claims any money paid into the treasury as aforesaid as his, on legal representation such person may file a petition in chancery in the circuit court of such county, stating the nature of his claim and praying such money may be paid to him; * * * And if any person appears and claims any lands vested in the county as aforesaid, within 5 years after the judgment was rendered, such person * * * may file his petition in chancery in the circuit court of such county in which the lands claimed lie, setting forth the nature of his claim and praying that the lands be relinquished to him; * * * And all persons who fail to appear and file their petitions within the times limited, aforesaid, shall be forever barred, saving, however, to infants and persons of unsound mind the right to appear and file their petition as aforesaid, at any time within 5 years after their respective disabilities are removed: * * *.
"All persons beyond the limits of the United States, as to whom a right to petition under this Section is otherwise barred by this amendatory Act of 1961 or will be barred within one year after the effective date of this amendatory Act of 1961, may file a petition pursuant to this Section at any time within two years after such effective date. As amended by act approved August 21, 1961." Ill. Rev. Stat. 1961, chap. 49, par. 7.
The effect of this amendment of 1961 was to establish a two-year limitation period as to persons living beyond the limits of the United States, as did Baxter and James Clark.
The Gregory-Clark petition to recover escheated property was timely filed in 1960, and the complaint and the counterclaim of the county of La Salle joined "unknown owners" and "unknown heirs or devisees of Walter Clark, deceased." Publication for "unknown owners" was duly made, but no appearances were filed.
The Federal court proceeding was instituted by Eva Gladys Warner in 1963 during the pendency of the State proceeding but before any hearing had been held.
In September, 1965, plaintiffs in the State proceeding (Gregory-Clark) joined with Baxter and Clark in seeking leave to intervene in the Federal proceeding as a matter of right, contending that their legal interests and rights would be prejudiced and adversely affected. This motion was denied as to Baxter and Clark on December 13, 1965, on the ground that their claim was barred by the statute of limitations and that ...