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In Re Estate of Mears

OPINION FILED DECEMBER 13, 1982.

IN RE ESTATE OF FRANCES A. MEARS, DECEASED. — (RUTH KOONTZ CORDIS, PETITIONER-APPELLANT,

v.

GORDON BRADY ET AL., RESPONDENTS-APPELLEES.)



Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Glennon, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 19, 1983.

Frances A. Mears died testate and her will was admitted to probate in the circuit court of Livingston County. The principal beneficiary of that will is Illinois Wesleyan University of Bloomington, which receives all of the residue of the substantial estate after the payment of a number of specific monetary legacies. The testator was widowed and childless and her heirs were 53 known nieces and nephews of the whole and half blood and descendants of other such nieces and nephews as predeceased her. Other heirs, if any, were unknown.

Within the time limited by law (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 8-1(a)) the petitioner, an heir and legatee of the testator, filed a petition to contest the validity of the will and named therein as respondents all the heirs and legatees, but did not name as a respondent the executor to whom letters had issued. In the body of the petition it was alleged that the executor had been nominated in the will and that letters had issued to him.

The executor filed a special and limited appearance for the purpose of contesting the jurisdiction of the circuit court. It alleged the failure to name him as a party respondent and that the time for filing a proper petition had expired. Illinois Wesleyan University, joined by several of the heirs, filed a motion to dismiss on the same grounds.

The circuit court of Livingston County held a hearing on the appearance and the motion and dismissed the petition with prejudice, holding that the failure to join the executor deprived it of jurisdiction. The petitioner appeals and we reverse.

The trial court placed great emphasis on a portion of section 8-1(a) of the Probate Act of 1975. That section, after limiting the period for filing a petition to contest the validity of a will, provides: "The representative, if any, and all heirs and legatees of the testator must be made parties to the proceeding * * *." (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 8-1(a).) The court stressed the word "must" and held that its jurisdiction derived from the statute. Undoubtedly the statute mandates the joinder of the representative, but the court was in error in determining that its jurisdiction flowed from the statute.

Jurisdiction is the life-spirit of the judiciary and is just as difficult of description as is the life-force of homo sapiens. However, while the origin of the life-force of humans remains a divine mystery, the origin of jurisdiction is secular and may be traced. A brief sketch of its origin and subsequent career in this State may be helpful in illuminating the question presented in the case at bar.

Let us accept for purposes of discussion a simplistic definition of jurisdiction as being the power to adjudicate. In the history of this State that power has found itself engaged in a tug-and-pull imbroglio between the courts> and the legislature.

The Illinois Constitution of 1818 represented a legislative dominance of the matter. Article IV, section 4, of that document provided in part: "[T]he said justices [of the supreme court], respectively, shall hold circuit courts> in the several counties, in such manner and at such times, and shall have and exercise such jurisdiction as the general assembly shall by law prescribe."

The legislature moved at an early date to implement this provision. Section 26 of "An Act regulating and defining the duties of the justices of the supreme court," approved March 31, 1819, provided:

"And be it further enacted, That the said circuit courts> shall be holden at the respective court-houses of said counties; and the said justices respectively, in their respective circuits, shall have jurisdiction over all causes, matters, and things at common law and in chancery, arising in each of the counties in their respective circuits, where the debt or demand shall exceed the sum of twenty dollars." 1819 Ill. Laws 380.

Article IV, section 4, of the Illinois Constitution of 1818 provided for the appointment of the justices of the supreme court and judges of the inferior courts> by the legislature. After the appointment of circuit judges, the same strictures on jurisdiction were placed on them by the legislature. Section 18 of "An Act regulating the Supreme and Circuit Courts>. In force July 1, 1829" provided:

"The said circuit courts> shall be holden at the respective court houses of said counties, and the said judges respectively, in their respective circuits shall have jurisdiction over all matters and suits at common law and in chancery, arising in each of the counties in their respective circuits, where the ...


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