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In Re Estate of Biewald

OPINION FILED SEPTEMBER 5, 1984.

IN RE ESTATE OF MARY BIEWALD, DECEASED (CLARENCE BIEWALD, PETITIONER-APPELLANT,

v.

ANNA MARIE JENSEN, ADM'R OF THE ESTATE OF MARY BIEWALD, RESPONDENT-APPELLEE).



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

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Mary Biewald died intestate on June 26, 1982. She had been married to Clarence Biewald in 1931, but they were legally divorced in 1959. Nevertheless, they continued living together at their residence at 2609 North Neva Street in Chicago until Mary's death. At the time of Mary's death, Mary owned the real estate located at that address. After Mary's death, Anna Marie Jensen, Mary's first cousin once removed, filed a petition for letters of administration, which indicated that Mary's only heirs were certain identified first cousins and first cousins once removed. Thereafter, the circuit court entered an order declaring that the first cousins and first cousins once removed were Mary's heirs and an order appointing Ms. Jensen as the administrator of Mary's estate.

Clarence Biewald filed a petition to amend the order of heirship, alleging that he was the "surviving spouse" of Mary Biewald and requesting that the court declare him to be the sole heir of Mary. A hearing was held on the petition, with Clarence being the only witness. He testified that he married Mary on September 19, 1931, and that he was legally divorced from her in 1959. He also testified that despite the divorce, from the time of their marriage until Mary's death, they lived together continuously and held themselves out to the public as husband and wife. At the conclusion of the hearing the circuit court denied the petition to amend the order of heirship, ruling that Clarence was not the surviving spouse of Mary because their marriage had been terminated by divorce. Clarence now appeals from the order denying the petition.

Clarence also appeals from three orders of the circuit court relating to the real estate located on Neva Street.

The record on appeal shows that Ms. Jensen, the administrator, filed a petition to recover the real estate on Neva Street from the possession and control of Clarence, alleging that Clarence had refused to vacate the first floor apartment of the building located on that property and that he unlawfully withheld possession thereof from her. In response to the petition, Clarence filed an answer and affirmative defenses. The answer admitted that Clarence refused to surrender possession of the premises to petitioner, but denied that his actions were in violation of the parties' legal rights. The first affirmative defense was that the administrator had agreed with Clarence that Clarence could occupy the premises for the remainder of his lifetime. The second affirmative defense was that Clarence was the surviving spouse and only heir of Mary, and that section 20-1(b) of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 20-1(b)) barred the administrator from taking possession of his residence. Subsequent to the filing of the answer and affirmative defenses, Clarence filed a motion for leave to file a jury demand with regard to the petition to recover possession of the real estate. Thereafter, the circuit court entered an order denying Clarence leave to file a jury demand and an order granting a motion by the administrator to strike both affirmative defenses. In the latter order, the circuit court also granted the petition to recover possession of the real estate and ordered Clarence to vacate and surrender possession of the property. Clarence now appeals from the entry of these orders.

The administrator also filed a petition to sell the Neva Street real estate, alleging the existence of a contract for the sale of the property and that it was in the best interest of the estate to sell the property. Clarence filed an answer to this petition, alleging that he was an heir of Mary Biewald. He also alleged that his "claim" against the estate would be irrevocably prejudiced if the sale was for inadequate consideration and that there had been no independent written appraisal of the real estate. The circuit court granted the petition to sell and entered a decree of sale of real estate. Clarence also appeals from the entry of this decree.

I

• 1 We first consider whether the circuit court erred in denying the petition of Clarence to amend the order of heirship to declare him to be the sole heir of Mary Biewald. The answer to this issue depends upon whether Clarence was the "surviving spouse" of Mary Biewald within the meaning of section 2-1 of the Probate Act (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 2-1). That section provides in part:

"The intestate real and personal estate of a resident decedent * * *, after all just claims against his estate are fully paid, descends and shall be distributed as follows:

(c) If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse."

Since his marriage to Mary had been dissolved by court decree in 1959, and the divorce decree completely dissolved their marriage, Clarence was not a surviving spouse at the date of Mary's death. (See In re Estate of Morrissey (1976), 38 Ill. App.3d 981, 983-84, 349 N.E.2d 642.) Clarence candidly concedes that the circuit court followed existing law in denying the petition to have him declared the sole heir of Mary. However, he argues that we can and should change the existing law and that we should find him to be the heir of Mary. In making this argument, he relies on the following language from Stanley v. Illinois (1972), 405 U.S. 645, 651, 31 L.Ed.2d 551, 558-59, 92 S.Ct. 1208, 1212-13:

"The Court has frequently emphasized the importance of the family. * * *

Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony."

In Stanley, the Supreme Court held that as a matter of due process of law, an unwed father was entitled to a hearing on his fitness as a parent before his children were taken away from him and that by denying him a hearing and extending one to all other parents whose custody of their children is challenged, the State denied the unwed father the equal protection of the laws guaranteed by the fourteenth amendment to the United States Constitution. Thus, ...


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