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In Re Estate of Zeno

FEBRUARY 11, 1972.

IN RE ESTATE OF CHARLES ZENO — (BERTHA MCMILLAN ET AL., PETITIONERS-APPELLANTS,

v.

LOUISE RAY ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. J.E. PAVLIK, Judge, presiding.

MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 14, 1972.

This appeal is taken from an order denying appellants' petition to reopen the estate of Charles Zeno for the purpose of correcting the table of heirship therein.

Charles Zeno (hereinafter referred to as "decedent") died intestate on December 19, 1964.

On January 6, 1965, on his own petition, the Public Administrator of Cook County was appointed administrator of decedent's estate and Letters of Administration were issued to him.

On January 19, 1965, Louise Ray, Barbara Beason (hereinafter referred to as "administrators") and Elphege Louis Daniel petitioned the court to revoke the Letters of Administration issued to the Public Administrator and to issue Letters to them. This petition stated that "Elphege L. Daniel," a non-resident of Illinois, was an heir of decedent and had nominated Ray and Beason as administrators. On that same date the court heard the testimony of Edward M. White, an attorney for the petitioners, to the effect that he acquired knowledge of the heirship and family of decedent through conversions with "Daniel" and Ray, whom decedent had held out to be his sister. Those conversations revealed that decedent was twice married but both wives predeceased him and no children were born of either union, nor were any adopted. Decedent was the illegitimate child of Joseph Harrison and "Mary Daniels." Mary Daniels had no other natural born or adopted children but was one of ten children born of the union between Lusignow and Cecile Daniels. Six of Mary Daniels' brothers and sisters, including Elphege, never married or had any children. The others married and had children but those children died without issue before decedent. All of Mary Daniels' siblings except Elphege Louis Daniel predeceased decedent. The court found that decedent left "Elphege Louis Daniel, his maternal uncle, as his only heir at law and next of kin" and granted the relief sought, appointing them administrators and revoking the letters of administration to the Public Administrator.

On April 22, 1965, on motion of the administrators, the court ordered that a partial distribution of the estate be made to Elphege Louis Daniel.

On May 2, 1966, the administrators filed their final account of the estate of decedent which indicated that there was $21,610.30 on hand after the payment of expenses and the advance, and that this amount was distributed to Elphege Louis Daniel. Accompanying the final account were vouchers, one of which was for the amount of $21,610.30 and signed by "Louis Daniel."

On September 28, 1966, Bertha McMillian and Bessie Truehill Leverette (hereinafter referred to as appellants) petitioned the court to reopen the estate and to order the administrators and their surety to refund and redeposit all funds. This petition, sworn to by appellants, alleged that decedent left specified heirs *fn1 and that Louise Ray knew of their existence but knowingly and fraudulently withheld that information from the court.

On October 17, 1966, the administrators filed a motion to dismiss, alleging that the petition did not set forth any facts showing that the appellants are heirs of decedent, that the court lacked jurisdiction to reopen the estate, that the appellants are guilty of laches, that the petition did not set forth facts constituting fraud and that the petition did not set forth any grounds for relief against the surety.

On October 31, 1966, the appellants moved that the court order the administrators and their surety to redeposit all funds into the estate. In support of that motion an affidavit of Bertha McMillian was filed listing the sole surviving heirs of decedent. That affidavit stated decedent's mother, "Mary Daniels Zeno" who died in 1898, had one brother, "Louis Daniels," who would be 106 years old at the time, and a sister Aurelia Zeno, who married but had no children. The affidavit further stated that decendent's father had five brothers and sisters two of whom had no children, two others died leaving two surviving children each and the last had six children, one being the affiant and another who had died leaving two surviving children.

An amended petition, filed by appellants on December 19, 1966, with leave of court, stated that the verified petition of Elphege Louis Daniel for the appointment of the administrators falsely and fraudulently alleged that Daniel was the maternal uncle and sole surviving heir of decedent. Additionally, the petition alleged that the administrators withheld information of appellants' relationship to the decedent.

On January 16, 1967, the administrators moved that the court dismiss the amended petition. This motion was in substance the same as their motion of October 17, 1966.

On January 23, 1967, the amended petition was stricken and the court granted appellants leave to file ...


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