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Commercial National Bank v. Bruno

OPINION FILED APRIL 18, 1979.

COMMERCIAL NATIONAL BANK OF PEORIA, ADM'R, APPELLANT,

v.

IOLANDA B. BRUNO ET AL., APPELLEES.



Appeal from the Appellate Court for the Third District; heard on appeal from the Circuit Court of Peoria County, the Hon. John A. Whitney, Judge, presiding.

MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Respondents, Iolanda B. Bruno and Santo Di Pietro Bilotti, appealed from the judgments of the circuit court of Peoria County entered in favor of petitioner, Commercial National Bank of Peoria (hereafter bank), against each of said respondents in the amount of $15,307.25 and costs. The appellate court reversed (56 Ill. App.3d 552), and we allowed the bank's petition for leave to appeal.

Sam Bilotti, also known as Sam Belotto, died intestate on April 9, 1975. The attorney for the bank, which had acted as Bilotti's conservator during his lifetime, met with respondents, who were the niece and nephew of the decedent. They gave the attorney the names of five nieces and nephews of the decedent whom respondents had not seen in more than 20 years, but who were believed to be residing in France or Australia. Respondents were unable to provide addresses for any of the other nieces or nephews.

The bank filed a petition for letters of administration, and notice of the hearing was published in a local newspaper. The bank was appointed administrator and filed an affidavit of heirship listing the respondents as heirs, and naming the five unlocated nieces and nephews, but stated that it was not known whether they were living and that there might be unknown heirs "some of whom may be minors." Upon completing the administration the bank filed a final report and account showing distribution of $23,140 to each respondent, and on March 9, 1976, an order was entered discharging the bank and closing the estate.

On December 15, 1976, an attorney in fact for the five nieces and nephews of whom the bank's attorney had been advised, and an additional nephew, filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72) praying that the order discharging the administrator be vacated and "the estate herein be reopened for the purpose of pursuing the administrator for the statutory shares due the heirs represented by your petitioner as attorney in fact." The attorney in fact also filed a petition for citation asking that an order be issued against the bank directing it to appear in open court "and give testimony as to the whereabouts of all funds due and owing the heirs represented by your petitioner" and that the bank "be directed and commanded to produce in open court all funds due and owing the heirs represented by your petitioner."

Following the filing of the petition and citation, the bank filed a petition for an order for partial refunding of distribution asking that each respondent be required to refund the sum of $15,426.68 "plus a reasonable amount to cover further costs." It also filed a petition to amend the order of heirship.

The circuit court denied the petition filed pursuant to section 72 of the Civil Practice Act. On its own motion it ordered that the order of discharge entered on March 9, 1976, be vacated, that the estate be reopened, and that the bank be reinstated as administrator. The order stated that the court's actions were taken pursuant to the provisions of section 24-9 of the Probate Act of 1975 (Ill. Rev. Stat. 1975, ch. 3, par. 24-9). The hearing on the citation filed on behalf of the foreign heirs was continued to a date certain, and although a docket entry shows it was later taken under advisement, no subsequent order was entered.

Under the amended order of heirship approved by all counsel, respondents would be entitled to inherit one-third of the decedent's estate. Following the taking of testimony and consideration of briefs, the circuit court entered judgment in favor of the administrator and against each of the respondents in a sum which equaled two-thirds of the amounts received in the original distribution.

Section 24-9 of the Probate Act of 1975 in pertinent part provided:

"If a decedent's estate has been closed and the representative discharged, it may be reopened to permit the administration of a newly discovered asset or of an unsettled portion of the estate on the petition of any interested person. If the petition asks the appointment of the former representative or a successor designated by the will, the court may order such notice of the hearing on the petition to be given to any interested persons as it directs or the court may hear the petition without notice." (Ill. Rev. Stat. 1975, ch. 3, par. 24-9.)

In reversing the judgments the appellate court held that in order to invoke the provisions of section 24-9, it was necessary that there be either newly discovered assets or an unsettled portion of the estate, and absent the showing that there was either, the circuit court erred in reopening the estate.

The bank contends that since all parties have admitted that respondents were overpaid by mistake, and that this fact was clearly set out in the petition filed by the six heirs who did not receive their distributive shares, the appellate court erred in reversing the circuit court's order reopening the estate. In discussing this same contention the appellate court said:

"The petitioner bank in its brief asserts that the trial court arrived at the correct result in ordering that the estate be reopened even though the reasoning used by the trial court in relying on section 24-9 of the Probate Act of 1975 was erroneous. It is interesting to note that the record discloses that the section 72 petition filed in the trial court by the alleged nieces and nephews was directed against the petitioner bank in that the prayer of the petition requested that the estate be reopened for the purpose of pursuing the administrator for the statutory shares due the heirs and that further the administrator be assessed with all costs and reasonable attorney's fees for prosecuting the cause. Coupled with the filing of the section 72 petition was the filing of a petition praying for citation proceedings to issue against the petitioner bank. At the hearing on these petitions counsel for the petitioner bank contested the allegations contained in them and the relief requested, yet in this appeal now contends that a section 72 petition was the correct and ...


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