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Estate of Franke

APRIL 21, 1970.

ESTATE OF ALFRED A. FRANKE, DECEASED. LOUIS DARDANO, CONSERVATOR OF THE ESTATE OF MARY DAMICO, INCOMPETENT, CLAIMANT-APPELLEE, CROSS-APPELLANT,

v.

THE FIRST NATIONAL BANK OF CHICAGO, EXECUTOR OF THE WILL OF ALFRED A. FRANKE, DECEASED, RESPONDENT-APPELLANT, CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. JOHN E. PAVLIK, Judge, presiding. Order reversed and cause remanded with directions.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

ON REHEARING

This appeal arose out of a claim filed by Mary Damico in the amount of $81,973, by which she sought to impose a constructive trust against the estate of the decedent, Alfred A. Franke, on the ground that the decedent held and invested her income which she had allegedly earned as decedent's housekeeper over a number of years. The trial court allowed the claim in the amount of $28,080, representing compensation of $20 per week for her services from 1939 to the date of the decedent's death, to be paid in due course of administration. The court specifically found that the claimant failed to prove the existence of a constructive trust. The executor appeals from the order awarding $28,080 to the claimant, and she has cross-appealed from the determination that no constructive trust had been established.

After the claim had been filed and prior to the trial of this matter, the incompetency of Mary Damico, on the ground of "a severe case of senility," was suggested of record. Louis Dardano, the nephew of Mary Damico, was appointed conservator of her person and estate, and was substituted as claimant. For convenience, Mary Damico shall hereinafter be referred to as "claimant" and Louis Dardano as "conservator."

Decedent died in Chicago on November 5, 1966. At the time of his death he was the owner of a rooming house on North Winthrop Avenue in the city and occupied the first floor of the building as his residence. Claimant also resided in the apartment and performed housekeeping chores for decedent in that building and in several other rooming houses decedent had owned.

A petition to admit the decedent's will to probate was filed in December 1966. Proof of will was taken by the trial court on February 17, 1967, and the trial judge initialed the order form admitting the will to probate "O.K. 2-17-67 H.J.K." next to the names of the two witnesses who testified at the hearing. The order admitting the will to probate and the order appointing the executor were stamp dated February 27, 1967, and filed with the Clerk of the Circuit Court on the same day.

On November 17, 1967, the executor presented a petition alleging that a clerical error had been committed in the dating of the order admitting the will to probate and the order appointing the executor, and requesting that an order be entered nunc pro tunc as of February 17, 1967, that these orders were in fact entered on February 17, 1967, rather than the February 27th date appearing on the orders. The court allowed the petition and entered the nunc pro tunc order.

Claimant filed the instant claim on November 24, 1967, seeking to impress a constructive trust on the estate, on the theory that she had earned $20 per week as housekeeper for the decedent for the period from 1928 until the death of the decedent, but that the decedent had withheld the earnings from her and invested the same for her benefit. On December 14, 1967, claimant moved for the vacation of the November 17th nunc pro tunc order. The motion was sustained over objection of the executor and an order was entered on January 8, 1968, vacating the nunc pro tunc order.

At the hearing on the claim, John P. Corcoran, a real estate broker who had known decedent since 1939, testified that claimant worked for the decedent as his housekeeper in the six rooming houses the decedent had owned over the years. The witness stated that the decedent did not tell him what financial arrangements the decedent and the claimant had; he testified that the decedent stated to him on at least 50 occasions that he was investing claimant's money for her, but that the decedent did not tell him how much money was being invested. Decedent told the witness that he was "making money for [claimant] and investing her money."

Frank Lukasik, a building contractor, testified that he was employed by decedent in 1964 and 1965 to correct some building violations on the decedent's rooming house. Lukasik testified that while negotiating the repairs contract he was continuously reassured by the decedent that decedent had sufficient funds to pay for the work. The witness testified that decedent boasted about his prowess and successes in the stock market. He also testified that the decedent told him he was investing over $1,000 per year for claimant, but the decedent did not say whether it was her wages or salary being invested. Lukasik testified that decedent told him that the reason why he was handling all of claimant's financial affairs and "investing her money" was because claimant was unable to handle such matters herself. The witness further testified that he observed claimant performing general household chores in decedent's rooming house.

Mrs. Frances Dardano, the wife of the conservator, testified over objection that she had known the decedent and the claimant since 1948 or 1949 when Mrs. Dardano and her husband were married. She testified that she had a conversation with the decedent in 1949 concerning the claimant's employment as decedent's housekeeper, and decedent told Mrs. Dardano that he was paying claimant $20 per week for her services but that he was withholding the money from her and investing it for her because she was unable to manage her own financial affairs. Mrs. Dardano testified that decedent "always handled [claimant's] affairs."

The trial court found that no constructive trust had been established by the evidence. The court also found that claimant did work for the decedent as his housekeeper from 1939 until the decedent's death, and further observed that "the evidence indicates that $20.00 a week was the amount that [claimant] was to receive, and of course, that amount is less, if anything, than a reasonable amount for services such as she was rendering."

The executor first maintains that the trial court erred in vacating its November 17, 1967 nunc pro tunc order which changed the dates of the orders admitting the will to probate and appointing the executor, from February 27, 1967, to February 17, 1967. It is argued that since the order appointing the executor was actually entered on February 17th, the claim herein, filed November 24, 1967, was not filed within the nine-month statutory period set for the filing of claims in decedents' estates, then in effect. (See Ill Rev Stats 1965, c 3, par 204.)

It does not appear from the record that the order appointing the executor was presented to or acted on by the trial court on February 17, 1967, the day the court heard the proof of the decedent's will. Both the order admitting the will to probate and the order appointing the executor were filed with the Clerk of the Circuit Court on February 27, 1967, which is also the court's order entry date stamped on both orders. The trial judge who entered, and later vacated, the nunc pro tunc order was not the same judge who heard the ...


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