Appeal from the Circuit Court of Cook County; the Hon. Frank
M. Siracusa, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
The petitioners are beneficiaries of a testamentary trust under the estate of Mary Norris. They sued the respondent, William Wirtz, as executor of the estate and trustee of the residuary trust. The petitioners filed their complaint as a supplementary proceeding arising out of the estate. Mary Norris' estate had been closed before the petitioners brought their complaint, however. After learning that the estate had been closed, the petitioners requested to have it reopened. They later withdrew their petition to reopen the estate but left standing their supplementary complaint. The trial court dismissed the complaint, and the petitioners appealed. On appeal, this court determined that although the trial judge had acted properly in dismissing the petitioners' complaint, his order was ambiguous in that it failed to specify whether the dismissal was with or without prejudice. On remand, the trial court held that the dismissal was with prejudice. Petitioners now appeal once again, claiming that their complaint should have been dismissed without prejudice.
Petitioner Susan Norris is the daughter of James and Mary Norris. The second petitioner, Valerie Kalas, is the sister of Mary Norris. Susan's father, James Norris, died in February 1966. James' will was admitted to probate in April 1966. Under the terms of the will, any property which remained after the closing of the estate was to be divided into two trusts, one for the benefit of Mary Norris (trust A) and the other for the benefit of Susan Norris (trust B). William Wirtz, the respondent in the present case, was appointed trustee of both trusts and executor of James' estate. Mary Norris was named co-executor.
Under the terms of the trusts set up in James Norris' will, William Wirtz had nearly unbridled discretion to invest the funds and distribute the income of the trusts to the beneficiaries. According to an action filed by Susan Norris in the Federal district court, Wirtz engaged in fraud and self-dealing in administering the trusts set up by her father's will. See Norris v. Wirtz (7th Cir. 1983), 719 F.2d 256, 258.
In his will, James Norris gave his widow, Mary Norris, a power of appointment over the assets of trust A. Mary died on January 3, 1976, and by her will, exercised the power of appointment. In her residuary clause, Mary devised the assets of trust A to William Wirtz, as trustee. The beneficiaries of the residuary trust were Susan Norris, Valerie Kalas, and Mary's brothers, George and Jerry Walenta. Wirtz was also named the sole executor of Mary Norris' estate.
On September 15, 1977, Wirtz filed a final account in the estate of James Norris. This account reflected a transfer of assets from James Norris' estate to William Wirtz, as trustee of trust A.
Wirtz also filed accounts in the estate of Mary Norris. According to the petitioners, Wirtz never notified them that he was filing such accounts. On March 3, 1983, Wirtz filed a final account in the estate of Mary Norris, and the estate was closed and Wirtz discharged, all without notice to the petitioners.
Unaware that Mary Norris' estate had been closed, the petitioners filed a supplementary complaint arising out of the administration of the estate. This suit, filed on July 28, 1983, was brought pursuant to circuit court rule 12.1, which provides that an action to contest the admission or denial of a will, to construe a will, to enforce a contract to make a will, or to appoint a testamentary trustee shall be designated a supplementary proceeding and shall bear the same number as the estate to which it relates. Circuit court of Cook County rule 12.1(c).
In count I of the complaint, petitioners claimed that they had no knowledge of whether Wirtz had ever funded trust A. They also contended that Wirtz, in his capacity as executor of the estate of Mary Norris, failed to send them copies of the accounts that he had filed in the probate court and that he had never notified them of any proceedings conducted with regard to the estate. In fact, according to the petitioners, Wirtz never accounted to them at all for his administration of the estate during the entire seven years that he was executor. Petitioners alleged that Wirtz had breached his duty as executor of Mary Norris' estate, and they sought an order compelling Wirtz to account for his administration of the estate.
In count II of their supplementary complaint, the petitioners claimed that they had no knowledge of whether Wirtz had funded the residuary trusts of Mary Norris' estate. They also contended that Wirtz had failed, with only one exception, to pay any income to the beneficiaries of the residuary trusts in accordance with the terms of Mary Norris' will. The will provided that the income and principal from the trusts should be paid to the beneficiaries for their comfortable care and maintenance. According to the petitioners, despite numerous requests, only Valerie Kalas had received any payment. Petitioners claimed further that Wirtz had breached his fiduciary duty as trustee because he failed to seek an accounting from the executor of the estate, he failed to exercise reasonable care and diligence in the administration of the trust assets, and he failed to render an accounting to the trust beneficiaries. Petitioners prayed for sanctions against Wirtz and for an order compelling him to fund the residuary trusts, pay income from the trusts to the beneficiaries, and render an accounting to the beneficiaries.
When he received the supplementary complaint, the presiding judge of the probate division informed the petitioners that Mary Norris' estate had been closed. Accordingly, on September 12, 1983, the petitioners filed a petition to reopen the estate pursuant to section 24-9 of the Probate Act of 1975. (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 24-9.) Wirtz requested a bill of particulars with regard to the petition to reopen the estate, and the petitioners provided one. Incorporated into the bill of particulars was the petitioners' supplementary complaint. The complaint was attached as an exhibit and made part of the bill of particulars.
On November 3, 1983, the petitioners filed a document entitled "Withdrawal of Petition to Reopen Estate." This document simply recited that the petitioners were withdrawing their petition since a portion of the relief they sought had been obtained.
On November 9, 1983, Wirtz filed a motion to dismiss the petition to reopen the estate and the petitioners' supplementary complaint as well. In response to Wirtz' motion to dismiss, the petitioners contended that the court could not dismiss their petition to reopen the estate since they had already withdrawn it. They also claimed that since Mary Norris' estate had been closed, their complaint against Wirtz was a nullity and should simply be ignored by the court as if it had never existed.
The court heard arguments on Wirtz' motion on November 15, 1983, and determined that the petitioners had effectively withdrawn their petition to reopen the estate. The court held further that the petitioners' supplementary complaint could not be treated as if it had never been filed. Instead, the court dismissed the complaint for "bookkeeping purposes." Although the judge observed that he did not wish to dismiss petitioners' complaint ...