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In Re Estate of Knoes

OPINION FILED APRIL 19, 1983.

IN RE ESTATE OF JOHN KNOES, DECEASED. — (RICHARD S. SPECTOR, ATTORNEY IN FACT FOR HEIR CLAIMANTS AMALIE HENRIETTE LUBBE, ET AL., PETITIONER-APPELLEE,

v.

MARYANN HEIDINGER ET AL., RESPONDENTS-APPELLANTS.)



Appeal from the Circuit Court of Cook County; the Hon. Henry A. Budzinski, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 11, 1983.

This is an appeal from an order of the trial court reopening a decedent's estate for the purpose of amending the heirship table to include heirs which were unknown to the trial court at the time that the estate was closed. The order was issued pursuant to a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). *fn1 Respondents' contentions on appeal are that the court lacked jurisdiction to entertain the petition because the exclusive method for reopening a decedent's estate is by petition under section 24-9 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 24-9), and that no relief could be granted under section 72 in any event because the order closing the estate was not procured by fraud and petitioner was not in the exercise of due diligence prior to the time that the estate was closed.

On March 10, 1979, John Knoes died intestate. A petition for letters of administration was filed on May 10, 1979, by respondent Maryann Heidinger, the decedent's niece. On that day, Maryann Heidinger was appointed administrator of the estate, and the court received her testimony concerning the heirship of the decedent. That testimony was that she was the daughter of the decedent's sister, that her maternal grandparents had each been married only once, that her mother and the decedent were the only offspring of that marriage, and that to the best of her knowledge she and her brother, respondent Hans Heidinger, were the decedent's only niece and nephew. On June 7, 1979, the court entered an order declaring that Maryann and Hans Heidinger were the only heirs of the decedent. Notice of the decedent's death and the opening of the estate was published in the Chicago Daily Law Bulletin.

On July 8, 1980, petitioner Richard Spector, an attorney, wrote a letter to Russell McBride, the attorney for the administrator. The letter stated that petitioner had learned from an overseas correspondent that the decedent had a sibling who was not noted in the order declaring heirship, and that that sibling had a number of children living in Germany. The letter also stated that petitioner had no detailed information concerning these potential heirs, but that he was expecting to receive powers of attorney from them at some time in the future. Petitioner asked McBride to keep him informed of further proceedings concerning the estate.

The number and the substance of the subsequent communications between petitioner and McBride is sharply disputed. McBride stated that he telephoned petitioner and informed him that the estate had been open for 14 months and that he was in the process of closing it, but that he would delay the closing in order to give petitioner time to present his claim. McBride also stated that he made several more calls to petitioner seeking more information about the claim which petitioner could not provide. Petitioner stated that he called McBride after the July 8 letter was sent, and that McBride did not tell him that the estate was about to be closed, but that McBride did tell him that he would delay the closing. Petitioner also stated that McBride made no further inquiries into the matter.

On September 11, 1980, petitioner wrote to McBride, informing him that he had received several documents pertaining to the foreign heirs and that he was waiting for an affidavit of heirship to arrive. The letter stated that when the affidavit arrived, petitioner would contact McBride to arrange for a hearing to amend the heirship table, and that in the meantime McBride was free to examine the documents which had already been received.

On October 3, 1980, the circuit court issued a citation for removal of representative returnable on November 6, 1980. The citation recited that it was issued because of the administrator's failure to close the estate.

Petitioner stated that he called McBride on or about October 7, 1980, to inform him that the affidavit of heirship had arrived. During that conversation, McBride, told petitioner that he would do nothing to jeopardize petitioner's rights. McBride stated that this conversation never took place.

No report of proceedings was made of the November 6 hearing on the citation. McBride stated that he informed the court of petitioner's claim at that hearing, but that the court, noting that petitioner had not filed an appearance in the case, ordered that the estate be closed. McBride then presented the administrator's final account and the estate was closed.

Petitioner states that he first learned that the estate was closed on December 9, 1980. He filed a petition to reopen the estate on December 29, 1980. That petition was dismissed on February 9, 1981, because of a defect in the notice. On February 13, 1981, petitioner filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72, superseded without change of substance by Ill. Rev. Stat. 1981, ch. 110, par. 2-1401) seeking to vacate the order closing the estate. After hearing argument of counsel, the court granted the petition. The bulk of the foregoing facts were gleaned from the argument of counsel at that hearing, as no testimonial proceedings relevant to this appeal were conducted in the trial court.

Respondents appeal from the order vacating the order which closed the estate, contending that: (1) the court lacked subject matter jurisdiction to reopen the estate pursuant to section 72, because section 24-9 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 24-9) sets forth the only circumstances under which an estate may be reopened, and an estate may not be reopened for purposes of amending the heirship table under that section, and (2) even if section 72 may be utilized to reopen an estate, no relief under that section was available to petitioner because the order closing the estate was not procured through fraud, and petitioner was not in the exercise of due diligence in seeking to present his claim to the court prior to the entry of the order closing the estate.

The central question presented by this case is whether section 24-9 of the Probate Act of 1975 is the exclusive statutory authority for the reopening of a decedent's estate. If it is concluded that section 24-9 is an exclusive provision, then it must be concluded that the court ...


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