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05/27/94 MATTER ESTATE ORA B. DAY v. ESTATE ORA B.

May 27, 1994

IN THE MATTER OF THE ESTATE OF ORA B. DAY, DECEASED, LEONARD D. SCOTT. PETITIONER-APPELLANT,
v.
THE ESTATE OF ORA B. DAY, DECEASED, APPELLEE. AND LEONARD D. SCOTT, PLAINTIFF-APPELLANT, V. ROSEMARY CLEAVER AND MARIE CLARK, EXECUTORS OF THE ESTATE OF ORA B. DAY, DECEASED, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the Tenth Judicial Circuit, Marshall County, Illinois. No. 92 P 67, No. 93 CH 7. Honorable Robert A. Barnes, Jr., Judge, Presiding

Present - Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

In this case, we are asked to decide whether a contract purchaser of real estate from a decedent's estate is a person having an interest in the real estate within section 20-5(b) of the Probate Act of 1975 (755 ILCS 5/20-5(b) (West 1992)). We hold that the purchaser does come within the statute and should be made a defendant in the proceeding for court approval of the sale.

Rosemary Cleaver and Marie Clark were the sisters and only heirs of decedent Ora B. Day. They entered into a real estate contract where, as sellers, they agreed to sell decedent's five room home and approximately 20 acres of land in rural Marshall County to Leonard Scott (buyer) for $34,900. The contract identified both Cleaver and Clark as executors of the estate of Ora B. Day but, in fact, decedent died without a will, and Cleaver was administrator of his estate. The contract included the following provision:

"This Contract is contingent upon the court approval of the Estate of ORA B. DAY, Deceased, to sell said real estate."

Thereafter, in May of 1993, the sellers obtained an appraisal of the property estimating the fair market value to be $53,900. This appraisal was based primarily upon two comparable sales and described the parcel as consisting of 59.30 acres. Earlier the inventory filed in the probate proceeding listed the value of the real estate as $33,300 and described the property as consisting of approximately 20 acres.

Buyer filed a complaint for specific performance of the contract in chancery on June 3, 1993, and on July 28, 1993, Cleaver filed a petition to sell the real estate in probate. Paragraph six of the petition states:

"6. The nature and extent of all liens and other interests, if any, on the real estate, known to me, are: Complaint for Specific Performance was filed by Leonard D. Scott, Plaintiff in Marshall County Circuit Court, case No. 93-CH-07."

A hearing on the petition to sell was set for August 31, 1993, and notice was sent to both the attorney for Clark and the attorney for buyer. The record shows that Clark filed an entry of appearance and an objection to the petition to sell, asserting that the sales price was less than 65 per cent of the fair market value of the property. After hearing evidence and arguments of counsel, the trial court denied the petition to sell. Buyer later filed a petition to vacate the order and for rehearing, alleging that he should have been made a party defendant under section 20-5 of the Probate Act. The petition indicated that the buyer's attorney had appeared at the August 31 hearing to object to Clark's opposition to the petition but was not allowed to participate in the proceeding. The trial court denied the petition to vacate and expressly found that buyer was not an interested person.

After the petition to sell was denied, Cleaver filed a motion to dismiss the complaint for specific performance on the ground that sellers could not perform the contract since the probate court had refused to approve the sale. The trial court granted Cleaver's motion to dismiss with prejudice and later denied buyer's subsequent motion to reconsider. Buyer appealed from the order denying his petition to vacate and the dismissal of his complaint for specific performance. This court has consolidated the two cases for consideration on appeal.

We conclude that the circuit court of Marshall County erred in refusing to allow buyer's motion to vacate the order denying the petition to sell the real estate. Section 20-5 of the Probate Act prescribes the procedure for sale of a decedent's real estate. The representative of the estate must file a petition in the probate proceeding describing the real estate, any liens and other interests, and attaching a copy of the proposed contract of sale. The relevant part of section 20-5(b) is as follows:

"(b) All persons holding liens against or having an interest in the real estate * * * described in the petition, in possession or otherwise, whose rights are sought to be affected by the order, * * * shall be made parties defendant."

The sellers argue that only persons having an existing interest in real estate prior to the time the contract was executed have been held to be necessary defendants. (E.g., Alward v. Borah (1942), 381 Ill. 134, 44 N.E.2d 865 (owners of underlying mineral rights); Dicus v. Scherer (1917), 277 Ill. 168, 115 N.E. 161 (heirs of decedent); Marshall v. Rose (1877) 86 Ill. 374, (devisees of decedent).) However, we do not read the statute so narrowly, and we have not found any cases construing the language of this statute to either include or exclude contract purchasers as persons having an interest in the real estate sought to be sold. Our interpretation of the plain language of this provision is ...


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