APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
BARRETT, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 9, 1975.
By her initial "Complaint in Chancery for Constructive Trust," filed on 20 February 1967, plaintiff sought to impose a constructive trust on the distributive share of $7,043.52 which each of the three defendants had received as sole heirs on final distribution of the net estate of intestate decedent Ambrose Chesokas (a.k.a. Ambrose Chasokas). That final distribution had been made pursuant to the approved final account of the administrator, John Kroulaidis, who is one of the three defendants herein because he was one of the three distributees.
On 25 May 1971, on motion of defendants, plaintiff's initial complaint was ordered stricken, with leave granted to plaintiff to file an amended complaint within six months, whereupon defendants were to answer or otherwise plead within thirty days thereafter. On 1 December 1971, plaintiff filed her first amended complaint. On 24 January 1972, defendants moved to strike that complaint on the grounds of laches and equitable estoppel owing solely to the lapse of time between the date (September of 1961) when plaintiff, by her own allegation in the amended complaint, had first learned of the facts alleged to constitute her cause of action and the date (20 February 1967) when plaintiff had filed her original complaint. On 3 January 1973, plaintiff's first amended complaint was ordered dismissed for want of equity, on grounds of "equitable laches." On 9 February 1973, plaintiff filed an amended motion to reconsider the dismissal order of 3 January 1973. After a hearing on 14 February 1973, plaintiff's amended motion to reconsider was denied. Plaintiff appeals from the denial of her amended motion to reconsider and from the order dismissing her first amended complaint, and seeks the reversal of each order and the remand of the cause of the trial court for further proceedings consistent with such reversals.
Since the only issue on this appeal is the propriety of the dismissal of plaintiff's first amended complaint, we shall, before considering plaintiff's contentions on appeal, summarize the allegations of that complaint and in that manner present the facts of the case as alleged in the complaint.
Plaintiff's first amended complaint is in three counts.
1. On 10 December 1956, one Ambrose Chesokas (a.k.a. Ambrose Chasokas) died intestate, domiciled in Illinois. On 13 December 1956, letters of administration were applied for by, and issued to, one John Kroulaidis, a self-alleged first cousin of decedent and an Illinois domiciliary.
2. On 26 December 1956, based on the testimony of John Kroulaidis, the probate court found that Ambrose Chesokas had died, leaving him surviving as his only heirs "unknown heir or heirs at law on the paternal side * * *." No publication of notice to "unknown heirs at law" was had. On 22 January 1957, the Table of Heirship entered on 26 December 1956 was vacated, and a new Table of Heirship, based on testimony which John Kroulaidis had given on 15 January 1957, was entered finding that Ambrose Chesokas had died leaving surviving as his only heirs John Kroulaidis, Stella Narducy, and Simon Kroulaidis, his first cousins on the maternal side.
3. On 13 September 1957, John Kroulaidis filed his final account as administrator of the estate of Ambrose Chesokas, which final account was approved and the said administrator discharged. The final account showed a net distributive estate in cash of $21,130.58, which was distributed in equal thirds of $7,043.52 to the three maternal first cousins.
4. Plaintiff is a half-sister and sole surviving heir of Ambrose Chesokas and none of the persons established in the Table of Heirship of 22 January 1957 as being heirs of Ambrose Chesokas are his heirs under the applicable intestate laws of the State of Illinois.
5. Even if the three alleged heirs were in fact the maternal first cousins of Ambrose Chesokas, the Table of Heirship was erroneous in that it should have contained a finding that the decedent's heirs on the paternal side were "unknown."
6. Even if the three alleged heirs were in fact the maternal first cousins of Ambrose Chesokas, they were not entitled to their distributive shares because the applicable laws of the State of Illinois required that the net distributive estate be deposited with the Cook County Treasurer for the use and benefit of "unknown heirs at law of Ambrose Chesokas, deceased."
7. John Kroulaidis, as administrator, knew or ought to have known that the Table of Heirship was erroneous and that the distribution to the alleged maternal first cousins was contrary to law.
8. As a result of the illegal distribution, each distributee has been unjustly enriched to that extent, and defendants, despite plaintiff's ...