Appeal from the Circuit Court of Cook County; the Hon. IRVING
GOLDSTEIN, Judge, presiding. Order affirmed in part and reversed
in part, and cause remanded.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
Plaintiff, General Finance Corporation, appeals from an order of the Probate Division of the Circuit Court of Cook County dismissing its amended and supplemental complaint and an amendment thereto. Plaintiff's final pleading consisted of six counts and sought to set aside an order of the Circuit Court granting one of the defendants, Albert Hansen, leave to spread of record his disclaimer to any property to which he may have been entitled under the will being probated, to set aside the disclaimer as being executed in fraud of creditors, a decree that the disclaimer did not effect real property in a foreign jurisdiction, a finding that Illinois did not have jurisdiction over the estate of Peggy Buck Hansen since she was not a resident of Illinois, and that the estate was opened in Illinois fraudulently and under false pretenses.
Count I of the complaint alleged that on August 16, 1963, the plaintiff had obtained a judgment against Albert Hansen, one of the defendants, in Green Lake County, Wisconsin, in the amount of $20,250 and that execution on said judgment was returned not satisfied. At the time of entry of the judgment, Albert Hansen was married to Peggy Buck Hansen. The latter died testate on January 4, 1965, and was seized of certain real estate located in Green Lake County, Wisconsin. Albert Hansen filed an application for letters testamentary on February 19, 1965, in the Circuit Court of Cook County. On March 10, 1965, letters testamentary were issued and the will was admitted to probate. The table of heirship listed the decedent's heirs as her husband and four daughters. The will provided that Albert Hansen be executor; that he should receive one-third of the estate; and that the four daughters should receive the residue in equal shares. On May 12, 1965, an order was entered in the Circuit Court of Cook County granting leave to Albert Hansen to spread of record his disclaimer to any interest in the estate of Peggy Buck Hansen. On May 24, 1965, plaintiff filed a complaint in Cook County against Albert Hansen on his indebtedness, but was unable to obtain service. Still unable to obtain execution on its Wisconsin judgment, plaintiff was given leave in Cook County to withdraw its complaint and to register its foreign judgment against Albert Hansen. On March 18, 1966, a final judgment was entered in Cook County. Neither of those judgments, based upon the same indebtedness, has been satisfied in whole or in part. Plaintiff went on in Count I to claim that the order entered in Cook County allowing Albert Hansen to spread of record his disclaimer should be vacated because plaintiff did not have notice of the order thus violating its constitutional rights to due process.
The subsequent five counts adopted paragraphs one through eighteen of Count I. Count II further alleged that Albert Hansen's disclaimer was a fraud against his creditors, in violation of Ill Rev Stats 1963, c 59, § 4, and that the disclaimer was filed in the Wisconsin courts with the fraudulent intent of destroying plaintiff's judgment lien in that State. Plaintiff further alleged that the disclaimer constituted a voluntary conveyance and was subject to attack by creditors.
In Count III the plaintiff further alleged that Albert Hansen was vested of one-third interest in the Wisconsin real estate immediately upon the death of his wife, regardless of whether she died testate or intestate, and the Illinois court did not have the authority to grant leave to spread of record the disclaimer inasmuch as it applied to real estate located in Wisconsin.
In Count IV, plaintiff further alleged that the Illinois statute dealing with disclaimers (Ill Rev Stats 1963, c 3, § 15) is in derogation of the common law and must be strictly construed, and that consequently reference to "heir" in that section does not include a "surviving spouse." Plaintiff further claimed that the word "heir" is not synonymous with "surviving spouse" since the latter term connotes additional rights and privileges under the Probate Act. Thus under either theory Albert Hansen was not an "heir" and could not disclaim his inheritance.
Count V of the complaint alleged that Albert Hansen fraudulently and through misrepresentation opened Peggy Buck Hansen's estate in the Circuit Court of Cook County in violation of section 54 of the Probate Act in order to obtain an order granting leave to spread his disclaimer of record; and that one or more of the co-defendants, his daughters, entered into a conspiracy with Hansen to defraud the plaintiff out of the payment of the aforesaid judgment. Count V further alleged that all orders of the Circuit Court were void and the court had no jurisdiction because: decedent had no real estate or mansion house in Illinois; she had no place of residence in Illinois; and approximately 96 percent of her estate was located in Green Lake, Wisconsin, at the time of her death. Plaintiff further claimed that, had the true facts been set out in the application for admission of the will to probate, the Illinois court would not have issued letters testamentary. Plaintiff further alleged that the petition for the admission of the will was false in that it gave decedent's address as 12 South Michigan Avenue, Chicago, the location of the Chicago Athletic Association, of which decedent was not a member. She did not reside at that address, and she was hospitalized and died in Wisconsin. Inventories filed in both Illinois and Wisconsin courts showed that the deceased had total assets of $65,650.25 in Wisconsin and $190 in Illinois. Plaintiff alleged further that, upon information and belief, the inventory filed in the Circuit Court of Cook County was false, since the location of the inventoried items in Illinois was not disclosed. Plaintiff in Count V prayed that the court find that it did not have jurisdiction to admit the will to probate because allegations of deceased's residence were false, because she did not possess any real estate in Illinois and because 96 percent of her estate was located in Wisconsin.
In Count VI, in addition to adopting paragraphs one through eighteen of Count I, plaintiff also adopted the paragraphs set forth above in Count V. Plaintiff further alleged in Count VI that on May 11, 1965, ancillary probate proceedings were filed in Green Lake County, Wisconsin. Certified and exemplified copies of decedent's will and Albert Hansen's disclaimer were filed in those proceedings. The petition filed in Wisconsin indicated that the deceased was a resident of Chicago at the time of her death, but an affidavit of one of her daughters stated that deceased was a Wisconsin resident at the time of death. A final account was filed in the ancillary proceedings on October 18, 1965 stating that decedent did not own any real estate or tangible personal property outside Wisconsin. A letter from the attorney of record in Wisconsin to the Wisconsin Department of Taxation stated that the deceased was a resident of Chicago, Illinois, but had no estate in Illinois. Another letter signed by the Public Administrator in Wisconsin stated that decedent was a resident of Green Lake County, Wisconsin, at the time of her death. Plaintiff further alleged that, without notice to plaintiff defendants conveyed all of their interest in the aforementioned real estate to a third party and that these conveyances were effectuated through the fraudulent collaboration of all of the defendants with the intent of defeating any interest plaintiff may have had in the real estate. Plaintiff further alleged that the probate proceedings instituted in the Circuit Court of Cook County constituted a fraud by defendants upon the court and upon the plaintiff.
A motion to strike and dismiss was allowed by the trial court and this appeal follows. The issue presented to this court is the sufficiency of General's complaint.
[1-3] Plaintiff contends in Count I that the order of of the Circuit Court of Cook County granting leave to Albert Hansen to spread his disclaimer of record violated its constitutional rights to due process of law, since plaintiff was not given notice of the proceedings. In proceedings for the admission of a will to probate, notice is required only to be given to heirs and legatees of the deceased. McGee v. Vandeventer, 326 Ill. 425, 158 N.E. 127 (1927). This entire matter arose in the course of the probate of the estate of Peggy Buck Hansen. Plaintiff was not a creditor of that estate nor did it ever assert any claim against the decedent during her lifetime. It is clear that plaintiff was not entitled to notice of any proceedings prior to filing its complaint nor was Albert Hansen required to give notice to his creditors that he was disclaiming all interest in his wife's estate. As will be discussed further in this opinion, no person can be required to accept any devise or bequest. People v. Flanagin, 331 Ill. 203, 162 N.E. 848 (1928). The method and requirements of filing a disclaimer are set forth in section 15b and c of the Probate Act (Ill Rev Stats 1963, c 3, § 15b and c). Section 15b requires that the disclaimer describe the interest to be disclaimed and be properly signed and acknowledged. Albert Hansen complied with the requirements of the Probate Act. The document was in proper form and was filed within 10 months after decedent's death as required. Plaintiff has in no way been denied due process by virtue of the fact that it did not get notice of the disclaimer.
In Count II, plaintiff argues that the disclaimer was a fraud upon creditors, in violation of Ill Rev Stats 1963, c 59, § 4, which provides as follows:
"Every gift, grant, conveyance, assignment or transfer of, or charge upon any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to disturb, delay, hinder or defraud creditors or other persons, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with like intent, shall be void as against such creditors, purchasers and other persons."
Section 15d of the Illinois Probate Act provides in part as follows:
"Unless the decedent or donee of the power has otherwise provided by will, the property or interest therein or part thereof disclaimed . . . shall descend or be distributed. . . . In every case the disclaimer shall relate back for all ...