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In Re Estate of Johnson

OPINION FILED JUNE 8, 1976.

IN RE ESTATE OF GERDA E. JOHNSON. — (HELEN NELSON, EX'R OF THE ESTATE OF MAYNARD NELSON ET AL., PLAINTIFFS-APPELLANTS,

v.

EVANGELICAL HOSPITAL ASSOCIATION ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. STANLEY THOMAS, Judge, presiding.

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

Plaintiffs, Maynard Nelson, individually, and his wife, Helen Nelson, filed a two-count complaint in the circuit court of Cook County against defendants, Evangelical Hospital Association, Christ Community Hospital, Holy Land Christian Mission, Grace United Church of Christ, Thomas Memorial Congregational Church, Peace Memorial Home, Magda Ahlstrom, Dagmar Jansson, Nils Johnson, Yngve Johnson, Carl Palmgren, Kjillvar Olsson, Stefan Olsson, Ragner Olson, and Maynard Nelson, executor of the will of Gerda E. Johnson. *fn1 Count I of the complaint sought specific performance of an alleged oral contract entered into by Gerda Johnson (decedent) and plaintiffs. Count II sought to set aside as invalid a certain will of decedent that had been admitted to probate. The trial court first dismissed Count II of plaintiffs' complaint, and later dismissed Count I. Plaintiffs now appeal from both dismissals.

Plaintiffs raise two issues for our review: (1) whether the plaintiffs' acceptance of the office of executor for decedent's will precluded them from contesting the validity of that will, and (2) whether there was an adequate remedy of law which barred their count for specific performance. Defendants raise two issues as to the procedural sufficiency in perfecting this appeal: (1) whether defendants were properly served with notice of the notice of appeal from the first order of dismissal, and (2) whether a notice of appeal was properly filed as to the second order of dismissal. A summary of the facts follows.

When Gerda Johnson died on April 21, 1973, she left two wills, one dated July 21, 1967, and one dated March 23, 1972. The 1967 will gave small bequests to six relatives living in Sweden and left the remainder of the estate to plaintiffs. The 1967 will named plaintiffs as co-executors. The 1972 will named all defendants as beneficiaries, left Maynard Nelson only an interest in the residue, and left nothing to Helen Nelson individually. The 1972 will named Maynard Nelson as executor and Helen Nelson as successor executor.

On September 19, 1973, on the petition of Maynard Nelson, decedent's 1972 will was admitted to probate, and pursuant to the directions in that will, Maynard Nelson was appointed executor.

On February 11, 1974, plaintiffs filed the instant two count complaint. The first count asked for specific performance of an alleged oral agreement entered into by decedent and plaintiffs. The complaint alleged that in 1967 decedent entered into an oral agreement to leave plaintiffs her entire estate, except for some minor bequests, in return for their promise to care for decedent until her death. Plaintiffs averred that they had provided for decedent's care, maintenance and medical needs from 1966 until her death. Plaintiffs attached a copy of the 1967 will as evidence of that agreement. Count II of plaintiffs' complaint asked that the 1972 will be set aside and declared not to be the last will of decedent. Count II alleged that decedent was very ill for two years preceding her death, and that "certain parties" connected with defendant charitable institutions had unduly influenced the execution of the 1972 will.

On the same day plaintiffs filed the two-count complaint, plaintiffs also filed a claim against decedent's estate. The claim, in contract and tort, was also based on the alleged 1967 oral promise made by decedent and prayed damages of $300,000 for breach of the alleged promise. That claim is still pending in the probate court.

Subsequent to the filing of the complaint and claim, Maynard Nelson, as executor, petitioned the court for the appointment of a special administrator to defend the estate against plaintiffs' complaint and claim. A special administrator was appointed and has been defending the estate to date.

While the complaint and claim were pending, Maynard Nelson died. Pursuant to the directions in the 1972 will, Helen Nelson, his wife, was appointed successor executor. After her appointment as successor executor, Helen Nelson petitioned the court for a final account covering the executorship of Maynard Nelson. Pursuant to the petition, the court awarded fees for services performed by Maynard Nelson, the special administrator, and the attorney for the estate up to the date of Maynard Nelson's death. Although the court awarded $2500 to the estate of Maynard Nelson for services performed during his executorship, it is unclear from the record whether that award has actually been paid.

On January 31, 1975, the trial court dismissed Count II of plaintiffs' complaint but denied defendants' motion to dismiss Count I. On February 4, 1975, plaintiffs mailed a copy of the notice of appeal from the January 31 dismissal to defendants, but did not actually file the notice of appeal until February 18, 1975.

On April 1, 1975, the trial court reconsidered its ruling on Count I of plaintiffs' complaint and dismissed Count I. On April 28, 1975, plaintiffs filed an amended notice of appeal consolidating an appeal from the April 1 dismissal with the earlier dismissal of January 31. On that date, plaintiffs also filed a separate notice of appeal from the April 1 dismissal.

At the outset we are presented with defendants' arguments challenging the procedural sufficiency of perfecting this appeal. Defendants first contend that plaintiffs improperly served them with notice of appeal from the January 31 dismissal of Count II.

Defendants rely entirely on Supreme Court Rule 303(d) which, in pertinent part, provides:

"No later than 7 days after the notice of appeal * * * is filed in the circuit court, the party filing it shall serve * * * a copy of the notice of appeal and notice of the date of filing upon every other party and upon any other person or officer entitled by law to notice of the appeal. Proof of service must be filed within 7 days after service is made, and ...


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