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In Re Estate of Barnes

OPINION FILED MAY 7, 1985.

IN RE ESTATE OF RALPH BARNES, DECEASED (PATRICIA BARNES, PETITIONER AND COUNTERRESPONDENT-APPELLANT,

v.

HENRY BARNES ET AL., RESPONDENTS AND COUNTERPETITIONERS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Arthur C. Perivolidis, Judge, presiding.

JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a dispute concerning the distribution of proceeds obtained through the prosecution and settlement of a wrongful death action filed under the Michigan Wrongful Death Act (Mich. Comp. Laws Ann. sec. 600.2922 (West Supp. 1985).) The trial court held that Illinois had the most significant contacts with the dispute and therefore Illinois law should control the distribution. However, pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308), the trial court certified the question to this court whether Illinois or Michigan law should apply. We granted leave to appeal.

The record reveals that on August 7, 1979, Ralph Barnes suffered fatal injuries while working on a construction project in Flint, Michigan. He was survived by his estranged wife, Patricia Barnes, his father, Henry Barnes, and his aunt, Octavia James. Patricia and Ralph Barnes had been separated for approximately three years and were living separate and apart at the time of Ralph's death. Patricia had filed divorce proceedings in 1976, but the petition was later dismissed for want of prosecution. She also admitted that after they separated she had caused her husband to be arrested on at least two occasions. The father and the aunt had a close relationship with the decedent. The aunt served as a mother figure to him and was receiving financial support from the decedent at the time of his death.

Patricia Barnes opened a probate estate in Illinois and was appointed administrator. In her representative capacity as administrator, Patricia filed a wrongful death action under the Michigan Wrongful Death Act (Mich. Comp. Laws Ann. sec. 600.2922 (West Supp. 1985)) in the United States District Court for the Eastern District of Michigan. All the named defendants were domiciled in Michigan, and Federal jurisdiction was based on diversity of citizenship.

On April 15, 1983, the Michigan attorney prosecuting the wrongful death action filed a petition for instructions with the circuit court of Cook County that had originally appointed Patricia administrator. Therein, the attorney stated that a $115,000 settlement offer had been made by the defendants in the Michigan lawsuit, and he recommended its acceptance. He further requested that the administrator be directed to execute settlement documents and that a distribution order be entered by the probate court, since there was a dispute amongst the various heirs of the estate. The Illinois court authorized the settlement. Patricia signed the settlement documents and caused the Michigan proceeding to be dismissed. After deduction for costs and attorney fees, $75,958.80 remained and is currently the only asset in dispute.

The Michigan probate code contains a specific statutory provision for the distribution of the proceeds of a Michigan wrongful-death action, whether they be obtained by judgment or settlement. (See Mich. Comp. Laws Ann. sec. 700.222 (West 1980).) The statute directs the personal representative of the deceased to file a "petition for authority to distribute the proceeds." In case of a settlement, the trial court then holds a hearing where all those named as beneficiaries under the wrongful-death statute are given an opportunity to prove damages. Under Michigan law, the class of persons entitled to recover includes all potential heirs of the decedent. (Crystal v. Hubbard (1982), 414 Mich. 297, 324 N.W.2d 869.) Unlike Illinois law, Michigan permits all potential heirs to recover for "lost companionship" as well as pecuniary loss. (Crystal v. Hubbard (1982), 414 Mich. 297, 324 N.W.2d 869; see also Mich. Comp. Laws Ann. sec. 600.2922(2) (West Supp. 1985) (giving specific authorization for recovery of loss of society and companionship of the deceased).) Following a hearing, the court is directed to distribute the proceeds "in such amounts as the court deems fair and equitable considering the relative damages sustained by each of the persons by reason of the decedent's wrongful death." Mich. Comp. Laws Ann. sec. 700.222(d) (West 1980).

Patricia never filed a petition for distribution in the Michigan court system. Instead, she filed a petition to close the estate with the Illinois probate court and requested that the entire settlement be distributed to her. Her claim appears to be premised on the theory that the settlement is part of the personal estate of Ralph Barnes which was not disposed of by will. Accordingly, under the Illinois intestacy laws of descent and distribution, she would be entitled to the entire estate as the surviving spouse. Ill. Rev. Stat. 1983, ch. 110 1/2, par. 2-1(c).

Subsequently, the father, Henry Barnes, and the aunt, Octavia James, filed a counterpetition asserting that the distribution of the proceeds of the Michigan wrongful-death action should be made according to Michigan law. Accordingly, both the aunt and the father would be entitled to damages for lost companionship to the extent they could prove injury. (Crystal v. Hubbard (1982), 414 Mich. 297, 324 N.W.2d 869; Mich. Comp. Laws Ann. sec. 600.2922(2) (West Supp. 1985).) The trial court found that Illinois had the most significant contacts with the dispute because all the beneficiaries were domiciled in Illinois. Accordingly, the trial court ordered that Illinois law should control the distribution of the wrongful-death proceeds. We vacate this order and remand for further proceedings.

The issue here is not so much whether Illinois or Michigan law should control, but rather what Illinois law, if any, could possibly apply to the distribution of a Michigan wrongful-death recovery. Two candidates present themselves for consideration — the Illinois intestacy laws of descent and distribution (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 2-1(c)) and those portions of the Illinois Wrongful Death Act governing distribution of proceeds recovered under the Act (Ill. Rev. Stat. 1983, ch. 70, par. 2). Neither of these statutes has any application to the case at bar. Thus, the Michigan statutory scheme for distribution is the only remaining logical choice.

Patricia Barnes implicitly contends that the wrongful-death recovery is an asset of the estate and therefore she, as the surviving spouse, is entitled to all the proceeds under the Illinois law of intestate succession. (See Ill. Rev. Stat. 1983, ch. 110 1/2, par. 2-1(c) (providing that the surviving spouse takes the entire estate where there are no surviving descendants of the decedent).) This contention is clearly without merit.

• 1 The term "estate" as used in our probate act refers to all interests in property, real or personal, to which the deceased may be entitled. (In re Estate of Rudder (1979), 78 Ill. App.3d 517, 519, 397 N.E.2d 556.) A cursory examination of the Michigan Wrongful Death Act reveals that, like our own statute, the Michigan act does not post-humously award damages to the decedent. (See Ill. Rev. Stat. 1983, ch. 70, pars. 1, 2; Mich. Comp. Laws Ann. sec. 600.2922 (West Supp. 1985).) Rather, the purpose of the Michigan statute is to compensate those survivors designated in the Act for damages they suffered as a result of the wrongful death. Thus, the damages recovered under the Michigan statute are not intended as compensation to the decedent or his estate; they belong exclusively to the beneficiaries enumerated in the statute. (See Carder v. Marhoff (E.D. Mich. 1956), 143 F. Supp. 920 (applying Michigan law).) Accordingly, a wrongful-death recovery under the Michigan Act cannot be considered an asset of the estate and, therefore, cannot pass under our intestacy laws to the surviving spouse. Accord, Carder v. Marhoff (E.D. Mich. 1956), 143 F. Supp. 920 (applying Michigan law); cf. Vukovich v. Custer (1952), 347 Ill. App. 547, 107 N.E.2d 426, rev'd on other grounds (1953), 415 Ill. 290, 112 N.E.2d 712 (damages recovered under Illinois Wrongful Death Act are not part of decedent's estate); see also Ill. Rev. Stat. 1983, ch. 70, par. 2 ("every such action shall be for the exclusive benefit of the surviving spouse and next of kin").

The only other Illinois law which could apply to the case at bar would be the provisions of the Illinois Wrongful Death Act pertaining to the distribution of proceeds recovered under the Act. (Ill. Rev. Stat. 1983, ch. 70, par. 2.) Section 2 provides that, in the case of settlement, the circuit court shall distribute the proceeds to the surviving spouse and next of kin in the proportion "that the percentage of dependency of each such person upon the deceased bears to the sum of the percentages of dependency of all such persons upon the deceased person." (Ill. Rev. Stat. 1983, ch. 70, par. 2.) However, there is no indication that this statutory provision was ever meant to apply to anything other than recoveries obtained under our own wrongful-death statute.

• 2 Indeed, a contrary conclusion would lead to anomalous results. Under Illinois law, damages recoverable for wrongful death are set with reference to the pecuniary loss suffered by the surviving family members as a result of the death. (Ill. Rev. Stat. 1983, ch. 70, par. 2.) Accordingly, damages recovered are distributed to the beneficiaries based upon their economic dependence on the deceased, thereby resulting in an equitable distribution reflecting the damages each beneficiary suffered. However, the Michigan act emphasizes loss of companionship and injury to family relationships as a basis for awarding damages. (Mich. Comp. Laws Ann. sec. 600.2922(2) (West Supp. 1985).) As recently noted by the Michigan Supreme Court in Crystal v. Hubbard (1982), 414 Mich. 297, 325-26, 324 N.W.2d 869, 880:

"There exists * * * an assumption that some positive relationship exists between almost all relatives. The wrongful death act, with its emphasis on compensating lost companionship, appears designed to compensate for the destruction of family relationships — those implicitly assumed to ...


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