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In Re Estate of Stith

FEBRUARY 10, 1969.




Appeal from the Circuit Court of Marshall County, Tenth Judicial Circuit; the Hon. EDWARD E. HAUGENS, Judge, presiding. Judgment affirmed in part and reversed in part.


Appellees, University of Illinois, University of Nebraska, University of Southern California, California Institute of Technology and Shriner's Hospital for Crippled Children, filed their petition in the Circuit Court of Marshall County seeking to vacate three orders entered by the trial court in probate proceedings respecting the estate of Richard Barnes Stith. The three orders sought to be vacated were successive orders extending the period during which the surviving spouse, Signa Marie Stith, appellant, could elect to renounce the will of her husband. The trial court vacated the last two extensions of time, from which orders the surviving spouse has appealed, and declined to vacate the first of such extensions, from which order appellees have cross appealed.

Richard Barnes Stith died testate in September, 1964, leaving surviving him a son and a widow, the appellant herein. His will was duly admitted to probate on November 9, 1964. The bulk of his estate was left to a testamentary trust from which his widow and son were to receive $6,000 each per year, the residuary beneficiaries being appellees.

On August 30, 1965, appellant filed her verified petition requesting an extension of the period of time during which she could file her renunciation and on the same day an order was entered extending such time to February 5, 1966. The petition alleged that there was pending in Nebraska, a petition for the discovery of assets and claims totaling $29,000 which had not been allowed, all of which affected her share in the estate.

On February 3, 1966, a second verified petition for the extension of the renunciation period was filed and pursuant to this petition the period was extended to February 5, 1967. The petition alleged that litigation was pending affecting the interest of the surviving spouse and referred to litigation in Nebraska and Illinois as well as the discovery petition. It appears that the discovery petition had in fact been dismissed by stipulation in December, 1965, and that the claims totaling $29,000 had been allowed on January 6, 1966, with the consent of the executor.

A third verified petition for extension of time to file her renunciation was filed by appellant on January 5, 1967. This petition alleged that a will construction action had been filed in the circuit court in September, 1966. Pursuant to this petition the period was extended until 90 days after the determination of such action.

Appellees were given notice by mail of the hearing on the admission of the will to probate. None of such appellees filed its appearance in the proceeding or otherwise participated therein prior to August 27, 1967. Appellant did not give notice to any of the appellees of the filing of any of the three applications for extension of time. Notice was given to Jefferson Trust and Savings Bank, executor, of the first application and the executor consented to the two subsequent extensions.

On August 27, 1967, appellees filed their petition which is the subject of this appeal. The petition was filed in the pending probate proceeding and sought to vacate the three orders of extension. The petition sets forth the contents of the three applications for extension of time, the procedure involved and the orders entered pursuant thereto. In particular, the petition alleged that at the time of the first two extensions, no litigation was then pending affecting the share of the surviving spouse because claims filed in the estate did not constitute such litigation and even if so considered, such claims had been allowed by consent prior to the granting of the second extension. Further, the only proceeding pending in Nebraska was ancillary administration of the estate and hence there was no pending litigation in Nebraska affecting the widow's share. The petition asserts that the applications for extension of time were false and fraudulent and therefore the orders entered pursuant thereto were void for want of jurisdiction. It should be noted that the petition does not assert as grounds for relief, any impropriety in the manner of giving notice, it being conceded that notice to the appellees was not required. Nor do appellees in their petition seek any relief based on lack of notice to them.

At the hearing on the petition the attention of the court was directed to the record concerning the filing and allowance of claims. In addition, there was testimony to the effect that the only proceeding in Nebraska was the ancillary administration and the only proceedings in Illinois were the administration of the estate of Richard Barnes Stith and the will construction case filed in September, 1966.

The trial court, in a detailed memorandum opinion, found that claims filed in a probate proceeding but unallowed did constitute pending litigation affecting the share of the surviving spouse. It further found that claims allowed less than thirty days before application for extension of time did not constitute such pending litigation and that ancillary administration did not constitute such litigation. The trial court, by its order entered in accordance with such opinion, declined to set aside the first order but did set aside the second order on the grounds that it had no jurisdiction to enter such order and also vacated the third order because it had been entered during a period of time invalidity extended.

Appellant on this appeal argues that each of the extensions of time was properly granted and that in any event the allegations of appellees' petition are insufficient to support the relief sought and granted. Accordingly the trial court properly declined to vacate the first order of extension but erred in vacating the second and third orders of extension.

On the other hand, appellees argue that the allegations in each of the first two petitions were false and fraudulent and hence the orders entered pursuant thereto were void because the trial court lacked jurisdiction to enter them. Accordingly, appellees argue the trial court properly vacated the second extension order but erred in declining to vacate the first.

The statute upon which the extensions of time were predicated is chapter 3, section 17, Ill Rev Stats 1965, which provides, "In order to renounce a will the testator's surviving spouse shall file at the time and place provided for herein a written instrument signed by the surviving spouse and declaring the renunciation. The time of filing the instrument shall be as follows: (a) within 10 months after the admission of the will to probate or (b) within such further time as may be allowed by the court if, within 10 months after the admission of the will to probate or before the expiration of any extended period, the surviving spouse files a verified petition therefor setting forth that litigation is pending that affects the share of the surviving spouse in the estate. The place of filing the instrument shall be in the court in which the will was admitted to probate. The filing of the instrument is a complete bar to any claim of the surviving spouse under the will. As amended by act approved Aug. 24, 1965."

There would appear to be no disagreement between the parties concerning the general principles relating to renunciation, namely, that the benefits to which a surviving spouse may be entitled under chapter 3, section 16, Ill Rev Stats 1965, are only available after renunciation of the decedent's will has been accomplished in accord with the provisions of section 17. Pearce v. Pearce, 281 Ill. 194, 118 N.E. 84, and Schaffenacker v. Beil, 320 Ill. 31, 150 N.E. 333. However, there is disagreement in the interpretation and application of section 17, subsection (b), chapter 3, Ill Rev ...

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