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Gibbs v. Estate of Dolan

OPINION FILED JULY 22, 1986.

JOHN GIBBS ET AL., CLAIMANTS-APPELLANTS,

v.

ESTATE OF CHARLES F. DOLAN, APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Frank M. Siracusa, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Claimants, John and James Gibbs, filed a probate claim against the estate of Charles F. Dolan after the expiration of the statutory six-month claim period seeking to recover the purchase price of a motor coach pursuant to the revocation-of-acceptance provisions of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1983, ch. 26, par. 2-608). The circuit court ruled that the claim was time barred under section 18-12 of the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 18-12). Claimants appeal contending: (1) the notice by publication provisions of the Act violate the due process clauses of the Illinois and Federal constitutions; and (2) the Chicago Daily Law Bulletin is not a secular newspaper of general circulation.

Claimants, who are engaged in the travel business, purchased a used 1981 MCC-Barth Motorcoach from Motor Vacations Unlimited (MVU) on December 19, 1983. MVU was a sole proprietorship operated by decedent, Charles F. Dolan. The motorcoach never operated satisfactorily, and it was returned to MVU for repair on eight occasions accounting for 330 days out of the year that claimants "operated" it.

On March 14, 1984, Charles Dolan died testate. Claimants learned of his death the following day when they called about repair work then being done on their motorcoach. On March 27, 1984, letters of office were issued appointing Alice Dolan, Charles' widow, executor. Claim notices were then published in the Chicago Daily Law Bulletin on March 30, April 6, and April 13, 1984, indicating that the claim period would end on September 27, 1984.

In June of 1984, claimants, threatening legal action, met with representatives of MVU in an attempt to resolve the continuing problems which they were having with their motorcoach. Several weeks later, MVU offered to sell the motorcoach on behalf of claimants and to forego any commission on the sale. Claimants rejected the offer and subsequently, on July 31, 1984, MVU wrote, saying in part:

"In an effort to accommodate you and preserve our business relationship, it is our intent to permit you to return the 1981 MCC-Barth as a trade-in on a new or used coach of your choice and upon terms and conditions that are mutually acceptable to all parties involved. Furthermore, in the event a new or used coach is not purchased we will buy back the MCC-Barth at mutually acceptable terms. At this point, it is not possible to further define the terms of our agreement. These terms will be dependent upon whether you wish to purchase a new or used coach and the cost of such coach.

It is our further intention to resolve this matter to your satisfaction within six (6) months of the date of this letter. As you are undoubtedly aware, Motor Vacations Unlimited is in the process of reorganizing its business due to the sudden death of its founder and owner, Charles F. Dolan. We appreciate your cooperation and patience during this reorganization period."

Claimants rejected this offer and, instead, returned the motorcoach to MVU to have the engine replaced. In an exhibit filed during the circuit court proceedings, claimants acknowledge that they knew, as of June 1984, that: Dolan had died; the business operators then represented to them that "everything was tied up in the estate"; and that the business operators would "speak with their attorney to see what could be done legally through the estate." The motorcoach was in MVU's possession from June 28 to November 15, 1984, for repairs. During that time, on September 27, 1984, the probate claim period expired.

Decedent's business, MVU, continued in operation from the time of Charles Dolan's death in March 1984 until its sale in January 1985. Claimants have not noted nor does the limited appellate record provide evidence of authority for the continued operation of decedent's business, which may or may not have been in accord with section 19-6 of the Act. Ill. Rev. Stat. 1983, ch. 110 1/2, par. 19-6.

Following the replacement of the engine and after experiencing continued problems with the motorcoach, claimants filed a revocation of acceptance in accordance with section 2-608 of the UCC (Ill. Rev. Stat. 1983, ch. 26, par. 2-608) and a corresponding claim against decedent's estate on January 7, 1985. On April 15, 1985, responding to a motion to dismiss their claim as not timely, claimants filed a petition contending that section 18-3 of the Act, providing for notice by publication (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 18-3), violated both the State and Federal constitutions by depriving them of property without providing the notice minimally required by due process. Alternatively, they argued that the Chicago Daily Law Bulletin was not a secular newspaper of general circulation.

On July 2, 1985, after a hearing on claimants' petition, the circuit court ruled: (1) section 18-3 of the Act was not unconstitutional on its face nor as applied; (2) the Chicago Daily Law Bulletin was a secular newspaper of general circulation; and (3) the claim was not timely filed. Accordingly, the claim was dismissed and claimants appeal.

The estate has not filed a brief as appellee and this appeal is considered in accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 133, 345 N.E.2d 493. The Law Bulletin Publishing Company, with leave of this court, has filed a brief as amicus curiae responding to the contention that the Chicago Daily Law Bulletin is not a secular newspaper of general circulation.

I

Claimants initially contend that section 18-3 of the Act, providing for notice by publication, denied them due process of law since it was not reasonably calculated to apprise them of the six-month claims limitation period where the estate knew their names and addresses and, in ...


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