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03/28/89 In Re Estate of Daniel Barth

March 28, 1989

IN RE ESTATE OF DANIEL BARTH, A DISABLED PERSON (MAGDALENA


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Barth, Petitioner-Appellant, v.

First National Bank of Chicago, Respondent-Appellee)

536 N.E.2d 973, 181 Ill. App. 3d 279, 129 Ill. Dec. 923 1989.IL.406

Appeal from the Circuit Court of Cook County; the Hon. Richard E. Dowdle, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Petitioner Magdalena Barth (Magdalena) appeals the dismissal of her amended section 2-1401 petition *fn1 (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401), which sought to (1) vacate an order that appointed respondent First National Bank of Chicago (Bank) as the successor guardian of the estate of her son, Daniel Barth (Daniel), a disabled person; and (2) reinstate petitioner as his plenary guardian. Raised as issues are whether the circuit court: (1) properly considered the applicability of a section 2-1401 petition in this case; and (2) erred in dismissing the petition for failure to allege sufficient facts.

On November 12, 1986, Magdalena was appointed plenary guardian of Daniel's estate and person. On or about February 17, 1987, she resigned her office as guardian of Daniel's estate and nominated the Bank as the successor guardian of the estate. On February 17, 1987, the court accepted Magdalena's resignation as guardian of the estate and appointed the Bank to act as successor guardian. Letters of office for the Bank were issued the same day.

On March 12, 1987, the Bank, as guardian of Daniel's estate, filed a petition for leave to purchase residential real estate in Isaquah, Washington, alleging that Magdalena entered into a real estate contract for the purchase of a single-family home there in Daniel's best interests. The circuit court granted the petition. According to Magdalena, it was this intention to relocate that caused her to resign as guardian of Daniel's estate and nominate the Bank as successor guardian because, under the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 1-1 et seq.), a plenary guardian of the estate cannot be a nonresident of Illinois.

Magdalena filed with the court a guardian's first and final accounting, for her term as guardian of the estate, on July 6, 1987. She was discharged as guardian of the estate by order on the same day.

On October 22, 1987, Magdalena filed a petition "to terminate nomination of guardian for a disabled person and to reinstate prior guardian," alleging that she no longer desired the services of the Bank as guardian, because she decided against relocating in Washington and planned to remain in Illinois.

Several motions were then filed on December 12, 1987. Magdalena filed: (1) a combined petition, pursuant to section 2 -- 1401, to vacate the February 17, 1987, order appointing the Bank as successor guardian and, further, to order her reinstatement as guardian of Daniel's estate; (2) a petition to discharge and remove the Bank as guardian and modify the guardianship order; and (3) a response to the Bank's petition for the sale of the Isaquah real estate.

On the same day, the Bank filed: (1) a petition for the sale of the Isaquah real estate; (2) a petition for approval of successor guardian's fees and an amended petition for fees; (3) a motion to strike the petition to discharge and remove the Bank as guardian of Daniel's estate; and (4) a section 2-615 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) to dismiss Magdalena's section ...


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