Appeal from the Circuit Court of Cook County, County
Department, Probate Division; the Hon. JOHN E. PAVLIK, Judge,
presiding. Cross-appeal dismissed; cause reversed and remanded
with directions to proceed in accordance with this opinion to
answer and trial on the merits.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT.
This case involves the question of whether section 24 of the Limitations Act (Ill Rev Stats 1967, c 83, par 24a) applies to a proceeding to contest a will under section 90 of the Probate Act (Ill Rev Stats 1965, c 3, par 90) where a petitioner has been nonsuited. On motion of respondent Feigenholtz the circuit court dismissed the action on the ground that section 24 did not apply and the suit was not filed in proper time.
Petitioners, by their mother as next friend and guardian, had commenced an action on July 1, 1960, in the United States District Court for the Northern District of Illinois to contest the purported will of their father, Oscar J. Breault, deceased, which had been admitted to probate in the Probate Court of Cook County on October 14, 1959. The complaint alleged undue influence of respondent, Harold L. Feigenholtz, over decedent; prayed that the instrument purporting to be his will and the probate be declared void, and that his estate be distributed among his heirs according to law.
Petitioners were citizens of Kentucky and respondents citizens of Illinois. The complaint in the district court was based upon the diversity jurisdiction of that court and alleged that the amount in controversy exceeded $10,000 exclusive of interest and costs.
Considerable other litigation has surrounded decedent's estate, arising largely out of the exercise by decedent in his will of a power of appointment given him by his mother, Kathryn Breault, over her testamentary trust. The result of such other litigation affected the status of solvency or insolvency of the Oscar J. Breault estate in the determination of whether the trust property became an asset of the estate.
On December 19, 1966, the Federal District Court, after having earlier denied a motion to dismiss for want of the jurisdictional amount, while the cause was at issue and awaiting trial, dismissed the cause for want of the jurisdictional amount. This order was affirmed by the United States Court of Appeals for the Seventh Circuit.
Subsequently, on August 17, 1967, the present action was commenced in the Circuit Court, Probate Division, in the Oscar J. Breault estate, which was within one year after the dismissal by the district court. In the instant complaint petitioners alleged the filing and dismissal of the action in the Federal District Court and the bringing of this action within one year of such non-suit, pursuant to c 83, Ill Rev Stats 1967, par 24a, to contest the purported will on the ground of undue influence of Harold L. Feigenholtz.
Respondent Feigenholtz filed motions to dismiss on the grounds: First, that section 24 of chapter 83 was inapplicable to a proceeding to contest a will filed pursuant to section 90 of the Illinois Probate Act; second, that plaintiffs (petitioners) were not "interested persons" under section 90 of the Illinois Probate Act since the estate was insolvent and they were deprived of nothing by the will; and third, that the cause of action filed in the circuit court was not the same action as had been commenced in the Federal District Court. The circuit court sustained the first grounds and denied the others. Plaintiffs appealed and respondent Feigenholtz cross-appealed.
An action to contest the validity of a will is a statutory action and can be exercised only in the manner and within the limitations prescribed by statute. In re Estate of King, 91 Ill. App.2d 342, 235 N.E.2d 276 (1st Dist 1968); McQueen v. Connor, 385 Ill. 455, 53 N.E.2d 435 (1944).
At the time the will contest was commenced in the Federal Court on July 1, 1960, section 90 of the Illinois Probate Act read as follows:
"Within nine months after the admission to probate of a domestic or foreign will in the probate court of any county of this State, any interested person may file a complaint in the circuit court of the county in which the will was admitted to probate to contest the validity of the will. . . ." (Ill Rev Stats 1959, c 3, par 242.)
At the time the present action was filed in the circuit court on August 17, 1967, said section 90 read as follows:
"Within 9 months after the admission to probate of a domestic or foreign will in any court of this State, any interested person may file a petition in the proceeding for the administration of the testator's estate to contest the validity of the will. . . ." (Ill Rev Stats, c 3, par 90).
That the action to contest the will on the ground of undue influence was filed in the Federal District Court within the required statutory period for filing a will contest set forth in section 90 of the Illinois Probate Act, is self-evident. However, at the time of the Federal ...