APPEAL from the Circuit Court of Morgan County; the Hon.
HOWARD LEE WHITE, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
While serving as executor of the estate of Frank Caldwell, deceased, in the Circuit Court of Morgan County, claimant Dr. Arthur K. Beams filed a claim against that estate on December 31, 1973. Respondent Robert E. Bradney was appointed special administrator to defend against the claim. He filed a motion requesting that the claim be dismissed on the grounds that it was not filed within 6 months of the issuance of letters testamentary as required by section 204 of the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 204). Upon hearing, the motion was allowed, and the claim was dismissed in bar of action. Claimant appeals.
Section 204 provides in part:
"All claims against the estate of a decedent, except expenses of administration and surviving spouse's or child's award, not filed within 6 months from the issuance of letters testamentary or of administration are barred as to the estate which has been inventoried within 6 months from the issuance of letters." (Ill. Rev. Stat. 1973, ch. 3, par. 204.)
No question is presented here of any inventory being filed after the 6 months' period. The case revolves around the date upon which letters testamentary were issued. Claimant contends that this occurred on July 2, 1973, less than 6 months prior to the filing of the claim on December 31, 1973. Respondent contends that letters were issued on June 4, 1973, more than 6 months before the claim was filed.
The will, naming claimant Dr. Beams as executor, was filed on April 9, 1973, and on May 10, 1973, a petition was filed requesting that the document be admitted to probate and that letters testamentary issue to claimant. The petition was heard on June 4, 1973. The terms of the court's order resulting from the hearing are sharply disputed. The parties agree that the testimony of two attesting witnesses was heard and that the will was admitted to probate. They also agree that Dr. Beams filed an executor's bond and an acceptance of office and that the bond was approved. They disagree as to whether letters testamentary were ordered to issue to Dr. Beams at that time or whether the issuance of letters was to be contingent upon proof of heirship being made. The docket entry of June 4, 1973, ended as follows: "ORDERED that Letters Testamentary issue to Arthur K. Beams upon proving heirship herein; See Written Order. Note: Hold Letters until proof of heirship is completed." On the other hand, a written order of the same date signed by the judge and placed on file ended in these words "It is ordered that letters testamentary issue to Arthur K. Beams" and made no reference to any requirement of prior proof of heirship. Probate Rule 5(1) of the Morgan County Circuit Court stated:
"Except on petition for letters of administration to collect, proof of heirship shall be given before letters are issued, unless such procedure is waived by the court."
A docket entry of July 2, 1973, noted that proof of heirship has been made and ordered letters to issue. The letters on file bear a file mark and an issuance date of July 2, 1973.
Respondent contends that Rule 5(1) is violative of section 75 of the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 75) which provides in part:
"When a Will is admitted to probate, the court shall issue letters testamentary to the executor named therein if he qualifies and accepts the office * * *."
He also argues that the written order of June 4, 1973, prevails over the docket entry of that date and that, therefore, letters were ordered to issue on June 4, 1973.
In support of his argument that the written order controls over the docket entry, respondent cites the following:
"The records of a judgment should be distinguished from the judge's minutes, which are merely memoranda which the judge makes upon his own docket for his own convenience, to enable him to see that the clerk accurately makes up the record." 46 Am.Jur.2d Judgments § 153, at 414 (1969).
Respondent also calls our attention to the early case of McCormick v. Wheeler, Mellick & Co., 36 Ill. 114, 85 Am.Dec. 388, the ruling in which involved the priority of liens against real estate. The judge's minutes reflected that the court had set aside a sale of certain real estate involved, but ...