APPEAL from the Circuit Court of Scott County; the Hon. GORDON
D. SEATOR, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Section 8-1 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 8-1) permits the filing of a suit to contest a will within 6 months of the admission of the will to probate. The issue here is whether, in such a case, an amended complaint can be properly filed, over objection, after the expiration of the 6 months period when (1) the original complaint was filed within the 6 months period alleging that the original will was procured by fraud and undue influence at a time when the testator was of unsound mind, but making no reference to a codicil, and (2) the amended complaint refers, for the first time during the suit, to a codicil as being part of the will, alleges that both documents were procured as aforesaid, and requests that the admission to probate of both be set aside.
On April 13, 1977, the circuit court of Scott County admitted to probate documents bearing dates of May 20, 1966, and February 15, 1969, as the last will of Elsie M. Thomas and a codicil thereto. The codicil appointed a different executor than that named in the original will but otherwise republished and reaffirmed the earlier document. On October 6, 1977, a week prior to the expiration of the 6 months period, the original complaint described in the preceding paragraph was filed in the same court. Subsequently a motion to strike portions of that complaint or to make it more definite and certain was allowed in part. Petitioners then filed a first amended complaint which made no reference to a codicil and made minor changes in the allegations to the procurement of the execution of the May 20, 1966, instrument. A motion directed at that pleading was also allowed and the petitioners were given 10 days to amend. On October 10, 1978, nearly a year after the expiration of the 6 months period, petitioners filed a second amended complaint mentioning the codicil, attaching copies of both documents, and requesting the probate of those documents be set aside.
On November 13, 1978, pursuant to respondents' motion, the trial court dismissed the second amended complaint with prejudice. In a concise memorandum, the trial court explained its determination that: (1) as the probate of the codicil was not attacked within the statutory period, it cannot be set aside pursuant to an amended complaint filed after the expiration of the period, and (2) as the codicil republished and reaffirmed all dispositive provisions of the original will, any impropriety in the execution of the original will would not prevent those dispositive provisions from taking effect as a result of the codicil, the validity of which was not timely challenged.
Petitioners appeal disputing the trial court's reasoning that the validity of the codicil was not timely challenged. They maintain that: (1) the will and the codicil became one instrument after their admission to probate; (2) section 8-1 of the Probate Act of 1975 is not a limitation statute but one conferring jurisdiction; (3) the court obtained jurisdiction of the subject matter upon filing of the original complaint within 6 months; (4) the execution of the original will and codicil involve a single transaction; and (5) the 6 months period of section 8-1 did not prevent raising the question of the execution of the codicil by the second amended complaint because section 46(2) of the Civil Practice Act permits the amendment of a complaint, timely filed, to set forth a cause of action arising out of the same transaction as that alleged in the original complaint. Petitioners do not dispute the reasoning of the trial court that if the execution of the codicil could not have been attacked after the 6 months period, the codicil's republication and reaffirmation of the original will rendered moot any question of the situation concerning the original will's execution.
Respondents also interpret section 8-1 of the Probate Act of 1975 as a statute conferring jurisdiction on the court. They assert, however, that the will and the codicil are separate instruments whose executions are separate acts not arising out of the same transaction. They maintain that the trial court lacked subject matter jurisdiction to consider the validity of the codicil and that, even if the court had jurisdiction, it would be error for it to do so.
No issue exists as to who is entitled to serve as executor because neither the person originally named nor the entity named in the codicil was both willing and able to serve.
Petitioners rely partially upon a theory that a will and a subsequently executed codicil are so unified by their joint admission to probate that an action contesting the validity of the will automatically attacks the execution of both documents. We need not pass upon that theory in the abstract, however, because here the original and first amended complaints made specific mention of the May 20, 1966, document alone. The February 15, 1969, document was not mentioned until the filing of the second amended complaint. Accordingly, we reject application of that theory to this case.
As article VI, section 9 of the Illinois Constitution of 1970 vests the circuit courts> with jurisdiction of "all justiciable matters" with exceptions not applicable here, we question the parties' analysis of the problem here as involving a question of subject matter jurisdiction. All of the cases cited for support concern the jurisdiction of courts> existing prior to the effective date of the Judicial Article of 1962 which first introduced the concept of a unified trial court with plenary jurisdiction (Ill. Const. 1870, art. VI (1964)). In People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456, the supreme court held that in view of the foregoing constitutional change, a circuit court's jurisdiction in a criminal case was not dependent upon the sufficiency of the charge. Failure to file procedural requirements for the probate of a will was held not to deprive a circuit court of jurisdiction to enter a valid order admitting a will to probate in In re Estate of Marcucci (1972), 5 Ill. App.3d 484, 285 N.E.2d 141. See also Lopin v. Cullerton (1977), 46 Ill. App.3d 378, 361 N.E.2d 6.
We recognize, however, that some decisions seem to indicate that despite the plenary jurisdiction of the circuit court, that court acquires subject matter jurisdiction only by following the statutory procedure where the cause of action is purely a product of the statute. See Zalduendo v. Zalduendo (1977), 45 Ill. App.3d 849, 360 N.E.2d 386; People v. Byrnes (1975), 34 Ill. App.3d 983, 341 N.E.2d 729; In re Jennings (1975), 32 Ill. App.3d 857, 336 N.E.2d 786, aff'd & rem. (1977), 68 Ill.2d 125, 368 N.E.2d 864; Logsdon v. Nolen (1969), 108 Ill. App.2d 46, 248 N.E.2d 525; La Salle National Bank v. Hoffman (1971), 1 Ill. App.3d 470, 274 N.E.2d 640.
In any event, we do not deem the tardiness in filing the second amended complaint to have deprived the circuit court here of jurisdiction to hear the matters set forth therein. In Nupnau v. Hink (1965), 33 Ill.2d 285, 211 N.E.2d 379, the court held that the circuit court had jurisdiction of a will contest suit filed prior to the effective date of the Judicial Article of 1962 although necessary parties were not joined within the then required 9 months period for filing suit. The court stated: "By the express and unqualified words of the statute itself jurisdiction is invoked when a `complaint' is `filed' within the statutory period." (33 Ill.2d 285, 288, 211 N.E.2d 379, 381.) Similarly in Sinnet v. Bowman (1894), 151 Ill. 146, 37 N.E. 885, the trial court was held to have had jurisdiction to consider whether a will had been procured by fraud although that issue was raised in the will contest suit for the first time by an amendment filed after the expiration of the statutory time for filing suit. See also Stephens v. Collison (1911), 249 Ill. 225, 94 N.E. 664; Krunfus v. Winkelhake (1963), 44 Ill. App.2d 124, 194 N.E.2d 24.
1 Although we determine that the court had jurisdiction to consider the attack on the codicil made for the first time by the second amended complaint, we must also consider whether it was procedural error not to do so. This question turns upon application of section 46 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 46). Section 46(1) permits amendments to pleadings at "any time before final judgment * * * on just and reasonable terms, * * * adding new causes of action * * *." Section 46(2) states:
"The cause of action, cross demand or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross demand interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading * * * for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended."
Case law recognizes the liberality with which amendments under section 46(2) are to be allowed. In Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 15 N.E.2d 838, an action was brought under the Wrongful Death Act (Ill. Rev. Stat. 1937, ch. 70, pars. 1 and 2) which required that, as a condition precedent to bringing any such action, the complaint be filed within one year from the death giving rise to the suit. The supreme court held that under section 46, the trial court properly permitted the plaintiff to amend the complaint to change the theory of recovery. The original complaint had alleged that plaintiff's decedent, a pedestrian, was struck by defendant's milk wagon. The amended complaint alleged that ...