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Wisemantle v. Hull Enterprises

OPINION FILED DECEMBER 31, 1981.

ROBIN WISEMANTLE ET AL., CO-EXECUTORS OF THE ESTATE OF MELODY HAMERLA, DECEASED, PLAINTIFFS-APPELLEES,

v.

HULL ENTERPRISES, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, JR., Judge, presiding. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

This interlocutory appeal (Ill. Rev. Stat. 1979, ch. 110A, par. 308) was filed to obtain review of an order denying a "Motion to Quash Summons" which was filed by First Bank and Trust Company of South Bend, Indiana (First Bank), in its capacity as executor of the Indiana domiciliary estate of Donald G. White. The executor's motion asked the court to quash the summons which plaintiffs (Robin Wisemantle and Mary Garrett, co-executors of the estate of Melody Hamerla) had served upon Cleta M. Glenn in her capacity as administrator of the Illinois ancillary estate of Donald G. White. We find that the dispositive issue in this case is whether the service of summons upon the administrator of an ancillary estate constitutes service upon the representative of the decedent's domiciliary estate. The answer is no, and we conclude that this appeal must be dismissed. The following facts are material to our decision.

1. Two airplanes collided while flying near Francisville, Indiana, on October 30, 1977, and all the occupants on both planes were killed. Melody Hamerla was a passenger on the plane piloted by John Herr, Jr., and Donald G. White, an Indiana resident, was the pilot of the other plane.

2. Hamerla's will was admitted to probate in Illinois, in the Will County circuit court, and plaintiffs were appointed executors of her estate.

3. Omni Aviation Managers, Inc., an insurance claims adjustment company, offered plaintiffs $65,000 in return for a release of all claims which they had, as Hamerla's representatives, arising out of the Indiana aircraft collision. Because there was a dispute over whether plaintiffs accepted this offer, both Omni and the estate of Herr petitioned the Will County court for an order compelling plaintiffs to accept the $65,000 and to execute a general release. Following a hearing, these requests were denied.

4. Donald G. White's will was admitted to probate in Indiana, his domicile, and First Bank and Trust Company of South Bend, Indiana, was appointed executor of White's domiciliary estate.

5. Plaintiffs petitioned the probate division of the Circuit Court of Cook County for an order opening an ancillary estate for White in Illinois, based on the allegations that (a) they were creditors of Donald G. White, and (b) White died leaving, as an asset in Illinois, a cause of action for indemnification against the insurance company which provided him with aircraft liability coverage. However, the only connection between this "asset" and Illinois is that the insurance company does business in Illinois.

Apparently without notice to White's heirs or the executor of the Indiana estate, a judge of the probate division of the Circuit Court of Cook County issued an order opening an Illinois estate for Donald G. White and appointing, as administrator, Cleta M. Glenn. The validity of this order has not been challenged, and we treat it as valid.

6. Plaintiffs then filed a tort action in the Circuit Court of Cook County. The complaint accuses Donald G. White of negligently causing Hamerla's death. The named defendants include "Cleta M. Glenn, Administrator of the Estate of Donald G. White, Deceased, [and] Gene R. Duffin, Personal Representative of the Estate of Donald G. White, Deceased." However, First Bank is not named as a defendant in either its individual capacity or as the executor of the Indiana domiciliary estate.

Summons was served upon Glenn, the administrator of the Illinois ancillary estate, and the parties refer to this as the only summons served upon any representative of Donald G. White.

7. First Bank, the executor of the Indiana domiciliary estate, filed a special and limited appearance on behalf of "the Estate of Donald G. White" and moved to quash the summons which was served upon Glenn.

(We note that appellant's main brief states that it has been submitted on behalf of "Defendant, Estate of Donald G. White," but both the special appearance and the motion to quash were filed by First Bank, and we assume that the appellant is First Bank in its capacity as executor of White's Indiana domiciliary estate. We also note that the only record reference to Gene R. Duffin is in the caption of the complaint, and he is not mentioned in the briefs.)

8. Following a hearing, the trial court denied First Bank's motion to quash the summons served upon Glenn, and the court entered an order which includes the following discussion of the question of law which it certified for interlocutory appeal:

"Did the Estate of Donald G. White, deceased, invoke the benefits and protections of the Illinois courts> by means of the petition of Omni Aviation, Inc., in the Probate Proceedings in the Circuit Court of Will County?

If the petition had been successful, the clear result would have been that the probate court would have ordered [plaintiffs] to accept the $65,000 and execute releases to the Estate of White and the Estate of Herr. It appears to this court that Omni Aviation was acting for and on behalf of the Estate of White in seeking to invoke the benefits and protections of Illinois courts>. ...


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