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In Re Estate of Lynn

JUNE 2, 1969.

IN THE MATTER OF THE ESTATE OF ALBERT A. LYNN, DECEASED. JOHN D. LYLE AND GLENN I. COFFEY, EXECUTORS OF THE WILL OF ALBERT A. LYNN, DECEASED, PETITIONERS-APPELLANTS,

v.

W. CLELL HILL, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Randolph County, Twentieth Judicial Circuit; the Hon. ALVIN H. MAEYS, JR., Judge, presiding. Reversed and remanded.

MORAN, J.

The executors of the estate of Albert A. Lynn, deceased, appeal from a judgment entered on March 22, 1968, by the Circuit Court of Randolph County in favor of the defendant, W. Clell Hill.

This action was brought by the executors against Hill, as a Petition for the Issuance of a Citation Against a Surviving Partner. Following the issuance of a citation, Hill filed an answer denying that he was a surviving partner and claiming that he had purchased the partnership business from the deceased prior to his death. Two days later, Hill filed a petition styled "Petition for an Order Directing Executors to Execute a Deed to W. Clell Hill" for certain real estate allegedly purchased by him as part of the partnership business. However, the petition only asked the court to direct the executors to file a petition for authority to execute a deed to him for the said real estate. The executors filed a reply denying the dissolution of the partnership and the purchase of the real estate in question by Hill. The trial court, sitting without a jury, found the issues to be in favor of Hill on both the Petition for Citation and the Petition for a Deed; found that the partnership had been terminated and that the deceased had sold his interest therein to Hill; and that there was a balance due the estate of $630.10 from Hill.

Hill's petition alleged:

"Your petitioner, W. Clell Hill, respectfully states:

"1. On or about the 15th day of October, 1957, the Decedent entered into an oral agreement with your petitioner whereby he agreed to sell to your petitioner his interest in the following described real estate, to wit:

"`That part of Lot 102 Armour's Survey to the City of Sparta, as described in a certain deed recorded in Book 173, on Page 257, Book 168 on Pages 350 and 352 of the Recorder's Office of Randolph County, Illinois; and

"`Lots 8, 9, and 10, in Block 2, in W.E. Borders' First Addition to the Village of Tilden: Both situated in Randolph County, Illinois.'

"along with the Decedent's interest in all other assets in the partnership known as Lynn Funeral Home, for the approximate sum of $44,000.00.

"2. At the time of the death of the Decedent, there remained unpaid to him on account of the said agreement, the sum of approximately $1,630.10. By the terms of the Will of the within Deceased, petitioner and his wife were bequeathed the sum of $1,000.00. Your petitioner is ready, willing and able to pay the balance, $630.10, and has in all other respects complied with the said agreement between petitioner and Deceased.

"3. Wherefore, your petitioner prays that an Order be entered by this Court directing John D. Lyle and Glenn I. Coffey, as Executors of the Will of Albert A. Lynn, Deceased, to file a Petition in this Court, praying for authority to execute a deed to your petitioner, conveying to him the interests in the real estate hereinabove described.

/s/ W. Clell Hill, W. Clell Hill."

After the hearing, the Circuit Court did not enter an order pursuant to the prayer of Hill's petition, but instead entered a judgment in Hill's favor directing the executors of the last will and testament of the decedent to execute a deed in Hill's favor on his paying the balance due on the oral contract.

The record discloses that the trial court lacked jurisdiction to enter the foregoing order and in such a situation we will take notice of it, although the parties have not raised the question. Kudla v. Industrial Commission, 336 Ill. 279, 168 NE 298. For this reason ...


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