Appeal from the Circuit Court of Cook County. The Honorable Arthur C. Perivolidis, Judge presiding.
Released for Publication February 16, 1995.
The Honorable Justice Rakowski delivered the opinion of the court: Egan, P.j. and Mcnamara, J., concur.
The opinion of the court was delivered by: Rakowski
JUSTICE RAKOWSKI delivered the opinion of the court:
The Travelers Indemnity Company (Travelers) filed a Petition to Re-open the Estate of Harold Beider (Harold) and For Leave to File a Claim against the estate. Travelers contended that it was a creditor of the estate, that it did not receive timely notice of Harold's death, and that it only became aware of Harold's death after the estate was closed. The trial court granted Marlys Beider's (co-executor of the estate, hereafter Marlys) 2-619 motion to dismiss the petition. (735 ILCS 5/2-619 (West 1992).) We affirm.
On November 14, 1984, Harold Beider signed a promissory note. Harold agreed to make quarterly payments beginning on January 10, 1985, and concluding on October 10, 1991. Pursuant to its financial guarantee bond with Harold's lender, Greycas, Inc., Travelers acted as a surety with respect to Harold's obligations under the promissory note, agreeing to pay Greycas, Inc. the amounts due in the event of Harold's default. Harold defaulted on April 10, 1988, July 10, 1989, January 10, 1990, April 10, 1990, July 10, 1990, and October 10, 1990. Following each of these defaults, Travelers paid the amounts due and demanded indemnity from Harold by mailing a letter to his residence at 1100 North Michigan in Wilmette, Illinois. On September 23, 1990, Harold indemnified Travelers for the amount Travelers paid as a result of his January 10, 1990, default.
On October 12, 1990, Harold died. Harold's wife, Marlys Beider, and Theodore Borkan were named independent co-representatives of Harold's estate and petitioned the Circuit Court of Cook County for the admission of Harold's will to probate and for the issuance of letters testamentary. Marlys published notice of probate to unknown creditors in the Chicago Daily Law Bulletin on October 29, 1990, November 5, 1990, and November 12, 1990.
Subsequent to Harold's death, Travelers continued to send demand letters to Harold at the Wilmette address. On April 30, 1991, the six month period for filing claims expired under Section 18-3 of the Probate Act of 1975 (Act) (755 ILCS 5/1--1 et seq. (West 1992)) and on July 15, 1992, the estate was closed. On November 4, 1992, still unaware that Harold was deceased, Travelers filed a law division suit against Harold, personally, to recover the $54,976 owed. Finally, in December 1992, when it first learned of Harold's death, Travelers filed its Petition to Re-Open the Estate and For Leave to File a Claim.
Section 18-12 states in part:
"Limitations on payment of claims. (a) Every claim against the estate of a decedent, except expenses of administration and surviving spouse's or child's award, is barred as to all of the decedent's estate if:
(1) Notice is given to the claimant as provided in Section 18-3 and the claimant does not file a claim with the representative or the court on or before the date stated in the notice; or
(2) Notice of disallowance is given to the claimant as provided in Section 18-11 and the claimant does not file a claim with the court on or before the date stated in the notice; or
(3) The claimant or the claimant's address is not known to or reasonably ascertainable by the representative and the claimant does not file a claim with the representative or the court on or before the date stated in the published notice as provided in Section 18-3.
(b) Unless sooner barred under subsection (a) of this Section, all claims which could have been barred under this Section are, in any event, barred 2 years after decedent's death, whether or not letters ...