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03/24/87 In Re Estate of Thomas B. Rice (Estate of Thomas B. Rice

March 24, 1987

IN RE ESTATE OF THOMAS B. RICE (ESTATE OF THOMAS B. RICE,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Petitioner-Appellee, v.

Universal Scheduling Company, Respondent-Appellant)

507 N.E.2d 78, 154 Ill. App. 3d 591, 107 Ill. Dec. 414 1987.IL.354

Appeal from the Circuit Court of Cook County; the Hon. Frank R. Petrone, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Thomas B. Rice was a member of the respondent, Universal Scheduling Company (hereinafter USC), partnership. Rice died on November 16, 1983. Letters of office issued on February 23, 1984, naming Redina Friedman and John P. Wilson as co-executors. *fn1 About a year after the estate was opened, the executor caused a citation to be issued against USC to discover assets. USC responded by furnishing the estate with the requested documents. Thereafter, on November 18, 1985, more than two years after decedent's death, a citation was issued against USC to recover assets. The assets sought to be recovered by the estate were alleged as additional compensation for personal services due to the decedent for the three-year period prior to his death. Respondent filed an answer and counterclaim alleging that the decedent devoted virtually no time to the business during the last three years of his life and that his conduct constituted a breach of the partnership agreement and resulted in overcompensation and unjust enrichment of the decedent. The estate moved to dismiss this "Third Additional Defense and Counterclaim" because it was not filed within six months after the issuance of letters of office and, therefore, was barred by the statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13-209; Ill. Rev. Stat. 1985, ch. 110 1/2, par. 18-12). On February 27, 1986, the trial court entered an order dismissing the defense and counterclaim with prejudice. This timely appeal followed.

The issue presented in this case is whether a decedent can assert a claim against a living person or an existing entity two years after death and then attempt to bar the defense or counterclaim *fn2 which arises out of the same transaction because it was not filed within six months after the issuance of letters of office.

Except for expenses of administration and spouse's or child's award, "[a]ll claims against the estate of a decedent . . . not filed . . . within 6 months after the entry of the original order directing issuance of letters of office are barred as to all of the decedent's estate." (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 18-12.) The purpose of this section of the Probate Act is to encourage the prompt settlement of claims and the early closing of estates. (Estate of Garawany (1980), 80 Ill. App. 3d 401, 404, 399 N.E.2d 1024.) We must determine whether this laudatory statutory purpose has been served in this case.

Where the assertion of a claim by a decedent may invite a defense or counterclaim, is it the duty of the executor to withhold the claim until the passage of six months and then invoke section 18 -- 12 as a bar? We think not.

Code pleading was adopted in this State because procedural pitfalls of common law pleading often denied litigants an opportunity to have their differences determined on the merits. (Miller v. Enslen (1978), 60 Ill. App. 3d 865, 868, 377 N.E.2d 282.) The Code of Civil Procedure applies to probate proceedings. (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 1-6.) The Code provides that "[t]his Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 1-106.

Where a plaintiff brings an action against a defendant, "a defendant may plead a set-off or counterclaim barred by the statute of limitation." (Ill. Rev. Stat. 1985, ch. 110, par. 13-207.) This section has been liberally construed. Even if the plaintiff's action is dismissed, the counterclaim survives. The savings clause of section 13-207 "opens the door and exposes the initiating party to otherwise stale claims. The clause does not contain a provision which closes the door if the initiating party's claim is later dismissed. In sum, once the statute of limitations is waived, it remains waived even if the claim which triggered the waiver is later dismissed." (Emphasis in original.) Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, 34, 458 N.E.2d 1331, appeal denied (1984), 99 Ill. 2d 530.

The language of section 13-207 is broad. It applies "to any action." There is no language in section 13-207 that makes special mention of decedents' estates. We conclude that the words used in section 13-207 that "a defendant may plead a set-off or counterclaim barred by the statute of limitation . . . to any action . . . by the plaintiff or person under whom [plaintiff] claims" is broad enough to apply to a decedent's estate. (Emphasis added.) This is consistent with the requirements that the Code of Civil Procedure be liberally ...


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