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02/17/88 In Re Estate of Robert W. Kendler

February 17, 1988

IN RE ESTATE OF ROBERT W. KENDLER, DECEASED (ROBERT W.


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Kendler, Jr., et al., Petitioners-Appellants, v.

Evelyn Lang Kendler et al., Ex'rs of the Estate of Robert

W. Kendler, Respondents-Appellees)

519 N.E.2d 1163, 166 Ill. App. 3d 191, 116 Ill. Dec. 948 1988.IL.220

Appeal from the Circuit Court of Lake County; the Hon. Terrence J. Brady and the Hon. Stephen E. Walter, Judges, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Petitioners, Robert Kendler, Jr., and Joanne Kendler McLogan, are heirs of Robert W. Kendler, deceased. They appeal from an order of the circuit court of Lake County which dismissed their petition for vacation of a surviving spouse award and for denial of the application for a spouse's award made by respondents, the co-executors of Kendler's estate. The heirs assert that the dismissal of their petition was error because the challenged award was improperly granted by the trial court without consideration of non-probate assets received by the surviving spouse. We affirm the lower court.

Robert Kendler's will was filed and letters of office were issued to Evelyn Lang Kendler, Kendler's surviving spouse and co-executor of his estate, on December 14, 1982. That same day, pursuant to an application by the co-executors, a surviving spouse's award was granted to Mrs. Kendler. On July 12, 1983, petitioners, who are children of decedent by his prior wife, filed their appearances in the trial court. A year later, on July 20, 1984, a verified petition to vacate the spouse's award and deny the application for the award was filed by the heirs. In essence the petition alleged that, in light of the trial court's failure to consider substantial non-probate assets which Evelyn Kendler had received upon her husband's death, the award was improper and should be vacated. Respondents filed both a verified answer and a motion to dismiss the petition on July 30. In a memorandum reply to the motion to dismiss the heirs stated that notice of admission of the will to probate had been sent to them on December 15, 1982. They also indicated that, by letter of August 10, 1983, the co-executors' attorney had furnished their attorney with a stamped copy of the December 14, 1982, spousal award and had informed them that, at the time of his death, the decedent and his surviving spouse owned in joint tenancy all of the stock in five named corporations.

A motion to strike respondents' motion to dismiss was filed by petitioners on August 7, 1984. An order entered that same day indicates that the motion to strike was to be considered as matter in opposition to the motion to dismiss. On December 11 the trial court entered an order dismissing the petition with the provision that it was not a final order for execution or appeal. The December 11 order was made final by another Judge's order entered on March 17, 1987, and this appeal followed.

Petitioners aver, as a threshold issue, that the trial court erred in not granting their motion to strike respondents' motion to dismiss. They argue that respondents' motion was not filed within the time for pleading; that respondents' verified answer was already pending before the court; that the issues had, therefore, been framed; and that respondents were thus precluded from presenting a motion to dismiss. Petitioners' position cannot be supported.

The first point the heirs raise, regarding the time for pleading, is not accurate. The record reveals that the petition was filed on July 20 and the motion to dismiss was filed 10 days later. While petitioners do not specify what they mean by "time for pleading," respondents' motion was filed well within either the 30 days allowed by Supreme Court Rule 181 (107 Ill. 2d R. 181) for attacking or pleading to a complaint or the 21 days allowed by Supreme Court Rule 182(c) (107 Ill. 2d R. 182(c)) for motions attacking pleadings other than a complaint. 107 Ill. 2d R. 181.

Petitioners' other issues spring from the apparent assumption that the answer was filed before the motion. However, we need not decide these questions because, in our opinion, petitioners have waived them. It is a matter of record that respondents filed an answer on the same day they filed their motion and that the heirs filed a motion to strike respondents' motion on August 7. However, an order entered on August 7 indicates that the court, as well as the parties, considered the entire matter only in the context of the motion to dismiss. The order represents that the matter was before the court on, among other things, "the petition to vacate spousal award and motion to dismiss said petition." It is then ordered "that Petitioner's motion to strike the motion to dismiss is taken as material in opposition to the motion to dismiss." Finally, according to the order, "the petition and motions will be heard by the court" at a time certain. The order reflects no objections from petitioners to either the treatment of their motion to strike or to the understanding conveyed by the order that the first item of business involved the Disposition of the motion to dismiss. There is no indication that the heirs insisted on resolution of their motion to strike prior to consideration of the merits of the motion to dismiss. Nor ...


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