APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
C. SPRINGSGUTH and the Hon. CHARLES C. LEARY, Judges, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The case, as it appears before this court on appeal, actually is composed of two separate appeals from proceedings involving the administration of an estate, the cases being consolidated upon appeal. The first appeal was from the appointment of one of two petitioning nephews as administrator. The issues before us in that case are (1) whether the judge erred in denying a petition for change of venue and (2) whether the judge erred in refusing to allow evidence as to which of two equally preferred heirs was "better" and in appointing one heir administrator because most of the heirs (although not a majority of those permitted by section 9-3 of the Probate Act of 1975 to nominate an administrator) (Ill. Rev. Stat. 1977, ch. 110 1/2, art. IX, par. 9-3) chose him. The sole issue in the second appeal is whether the trial court erred in allowing attorney's fees to the attorney of the unsuccessful petitioner, that attorney having represented the decedent before his death and the estate afterward until the contest over which petitioner should be administrator arose.
It all began on September 6, 1976, when Alfredo Roselli died. Alfredo, while having no children of his own, was a member of a large family; his parents had 10 children. Of these only one son was living at the time of Alfredo's death, and he died shortly thereafter. Alfredo's heirs are eight nephews and nieces and one great nephew and two great nieces; of the eight nephews and nieces, two lived in Italy and one in Canada.
From 1942 until just before his death, Alfredo Roselli lived on Rutherford Street in Chicago. His assets, consisting solely of cash, were deposited in banks in Cook County. About a month before he died he sold his house intending to travel to Italy; he did, however, intend to return to Cook County to live. During the period before the date on which he intended to leave for Italy, he resided at a hotel, the Stouffer's Oak Brook Inn located in Du Page County. On August 27, 1976, he was removed from the Inn in a coma and taken to the Hinsdale Sanitarium and Hospital in Du Page County where he died.
At the hospital, a Mrs. Stickler, in going through the patient's effects, discovered a card with attorney John Panici's name on it. She contacted Panici and advised him that Alfredo was in a coma and asked for the name of the Roselli's family physician which Panici gave her. Panici had represented Alfredo on several matters, including estate matters when Alfredo's wife died, and in the sale of his (Alfredo's) house. Furthermore, when Alfredo indicated to Continental Illinois National Bank and Trust Company that he wanted a living trust and a will drawn up, he informed the bank that Panici was his attorney. Also, on August 27, 1976, Vincent Roselli, a nephew who was very close to Alfredo, contacted Panici. Because no one knew how long Alfredo would be in a coma, and medical bills were mounting, they discussed the need for a conservatorship so Alfredo's funds could be reached to pay the bills. Alfredo had an estate worth $300,000 but, of course, it could not be touched unless a conservator was appointed. Apparently Alfredo died before a petition to appoint a conservator was actually made.
As we noted, Alfredo had a will drawn up. Under that will, the principal beneficiary was charity. The will also made certain bequests to his relatives: Vincent Roselli was the principal beneficiary he and his wife would have received $20,000; Ida Valenti, his sister, would have received $5,000. There was no bequest to Luigi Roselli, the nephew who was later appointed administrator, although Luigi's wife was left $2,000, the amount to go to her sons if she did not survive Alfredo. The will was never signed.
As stated earlier, Panici was Alfredo's attorney before and at the time of his death. On September 27, 1976, Panici, acting for Vincent Roselli, filed a petition in the circuit court of Cook County asking that letters of administration be issued to Vincent. On September 30, 1976, the circuit court of Du Page County, upon a motion filed by Luigi Roselli, a nephew who had not been on good terms with his uncle when he died, appointed Luigi administrator to collect of Alfredo's estate. Thereupon, the circuit court of Cook County on October 15, 1976, entered an order restraining Luigi from proceeding on any estate matters. On March 31, 1977, the Du Page action was transferred to Cook County; the Cook County court having previously, on March 15, determined that the proper venue was Cook County. Despite the transfer on March 31, no petition to have Luigi appointed as administrator was filed in the Cook County action until June 21, 1977, although the petition was notarized as early as April 26, 1977.
On June 21, 1977, a hearing was held. No court reporter was present but a narrative report of the proceedings, certified as required under Supreme Court Rule 323(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 323(c)), is in the record. Panici informed the judge that he intended to produce evidence showing that Vincent was closer to the decedent, and knew more about decedent's affairs; that Luigi had to take legal action to collect monies due him from the deceased and that the will which the deceased had drawn up named Vincent as legatee but not Luigi. Luigi objected to all of this as not going to the issue of the qualifications necessary for a person to be appointed administrator. He further pointed out that both he and Vincent were qualified under the statute but that he had the appearances and consents of eight of the 11 heirs, including himself, and that this should be controlling. (Luigi had the consent of one other nephew who lived in the United States, and the consent of the nephews and nieces who lived outside the United States and those of the grand nephew and grand nieces; Vincent had the consent of his sister, Ida Valenti, who, like himself, lived in Illinois.) The judge inquired if this was all the evidence either side intended to offer and received affirmative replies. He then asked if they could act as co-administrators; Vincent refused. The judge then indicated that he would appoint the person preferred by eight of the 11 heirs, although he recognized that the consents were not binding on him. He also stated that evidence as to who was "closer" to the deceased was inadmissible. At this point, Panici moved for a change of venue and a hearing. The judge denied the motion for change of venue as untimely and set the hearing for June 27, 1977.
At the June 27 hearing, Ida Valeni, with the permission of the court, moved to have herself and her brother, Vincent, appointed as co-administrators. They then renewed their motion for a change of venue. It was again denied. The judge also repeated his statement that Luigi was appointed because he had the consent of the majority of the heirs. He further stated he was only willing to hear evidence as to why he could not appoint Luigi; in other words, evidence showing that Luigi was not qualified under the statute. Since the appellant failed to produce any evidence to this effect the appointment of Luigi was allowed to stand and a bond was set in the amount of $75,000.
The last day Panici represented Vincent was June 27, 1977. On November 17, 1977, he filed a claim in the estate for attorney's fees in the amount of $3,025, both for services rendered before the decedent's illness ($400, there was no objection to this claim) and for services rendered from August 27, 1976, to July 28, 1977 ($2,625). At the hearing, the administrator agreed that he did not dispute the amount of time, hours, etc., but only contended that Panici was not entitled to recover any amount from the estate because he had acted merely as a volunteer, Vincent never having been appointed administrator. The judge rejected this argument and awarded the amount claimed.
Vincent and Ida appealed from the court's actions denying the motion for change of venue and appointing Luigi administrator. The estate has appealed from the allowance of Panici's claim for fees for services rendered on and after August 27, 1976.
1-3 The first issue before this court is whether the trial judge erred in denying the motion for change of venue. The law in Illinois is well settled that a litigant has an absolute right to a change of venue when his petition asserting prejudice on the part of the trial judge is duly made, verified and filed in accordance with the statutory requirements set forth in the venue act. (Ill. Rev. Stat. 1977, ch. 110, pars. 501-17; Stark v. Ralph F. Roussey & Associates (1972), 5 Ill. App.3d 665, 284 N.E.2d 24, appeal denied (1972), 52 Ill.2d 597; Frede v. McDaniels (1976), 37 Ill. App.3d 1053, 347 N.E.2d 259, appeal denied (1976), 63 Ill.2d 556.) Since there is no dispute as to the form of the petition, the only question is whether the motion is timely filed. A motion must be filed at the earliest practicable moment; except as provided in section 3 of the venue act *fn1 (Ill. Rev. Stat. 1977, ch. 110, par. 503), it comes too late if filed after the trial judge has ruled on a substantive issue in the case or after the hearing has begun. (Roherty v. Green (1965), 57 Ill. App.2d 362, 206 N.E.2d 756; Sansonetti v. Archer Laundry, Inc. (1976), 44 Ill. App.3d 789, 358 N.E.2d 1142, appeal denied (1977), 65 Ill.2d 584; Fennema v. Joyce (1972), 6 Ill. App.3d 108, 285 N.E.2d 156.) This requirement that it be filed at the earliest practical moment is designed to preclude counsel from first ascertaining the attitude of the trial judge on a hearing relating to some of the issues of the case and then, if the court's judgment should not be in harmony with counsel's theory, asserting the prejudice of the court as grounds for allowing a change of venue. (Roherty v. Green (1965), 57 Ill. App.2d 362, 206 N.E.2d 756; H. Watson Development Co. v. Bank & Trust Co. (1978), 58 Ill. App.3d 423, 374 N.E.2d 767.) In the instant case, the appellants did not move for change of venue until after the court had ruled that it would not consider evidence as to who was "closer" to decedent, but would select Luigi because he had the majority vote. As the court stated in Watson (58 Ill. App.3d 423, 431, 374 N.E.2d 767, 773): "In the case at bar, the petition did not come until after the plaintiffs' counsel had participated in a lengthy discussion of the matters at issue, during which the judge indicated his position on at least one of the issues. The subsequent request for a change of venue, therefore, came too late."
The appellants contend that the proceeding on June 21 was only a pretrial hearing, and that, for that reason, the motion was timely, citing Roherty v. Green (1965), 57 Ill. App.2d 362, 206 N.E.2d 756; Frede v. McDaniels (1976), 37 Ill. ...