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January 20, 1995


Appeal from the Circuit Court of Cook County. The Honorable Robert E. Cusack, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: Rakowski, J., and Zwick, J., concur.

The opinion of the court was delivered by: Egan

The Honorable Justice EGAN delivered the opinion of the court:

After a bench trial, the judge denied the petitioner's claims against her half-brother's estate for care during his lifetime. On appeal, the petitioner, Delores McGee, asserts that the judge erred (1) when, based on the Dead Man's Act (735 ILCS 5/8-201 (West 1992)), he refused to allow her testimony as to her care of her brother and his physical and mental condition; (2) he denied her statutory custodial claim under the Probate Act; (3) he denied her claim under the theory of quantum meruit; and (4) he allowed impeachment testimony on collateral matters.

On April 3, 1990, the petitioner filed a petition in which she asked the judge to issue letters of administration to LaSalle National Bank ("LaSalle") for her half-brother Joseph Rollins' estate. (LaSalle's predecessor, the Exchange National Bank, had been appointed Joseph's guardian in November 1957. LaSalle succeeded the Exchange National Bank in November 1980.) The petitioner signed an affidavit of heirship prepared by LaSalle's attorneys. In her affidavit, she stated that she was the decedent's sole heir. The judge issued an order declaring her the decedent's sole heir. In April 1990, LaSalle published notice of the decedent's death and the administration of his estate in the Chicago Daily Law Bulletin. This notice stated that creditors of the estate must file their claims before October 10, 1990.

On September 4, 1991, Edward Rollins, the decedent's brother; Demetris Rollins, the son of the decedent's other brother, Charles Rollins; and Margo Walker, Charles Rollins' daughter, filed a motion to amend heirship. Pursuant to this motion, the judge entered an amended order declaring that the heirs of the decedent were the petitioner, Edward Rollins, Demetris Rollins and Margo Walker.

On October 4, 1991, the petitioner filed a claim against the decedent's estate for $80,000. In a statement attached to this claim, she asserted the following. Her brother was a totally disabled veteran. She was a licensed practical nurse and provided nursing care, room and board for her brother beginning October 1, 1979, after their mother's death. Her brother required care twenty-four hours a day due to his physical and mental problems. He suffered from diabetes, hypertension, arthritis and incontinence. In addition, his five right toes and left lower leg had been amputated in 1987. She provided him with transportation, a room, personal care, clothing and meals. Her teen-age sons also helped with his care when the petitioner was working. Each year, someone from the Veteran's Administration ("V.A.") came to the petitioner's house to evaluate the decedent's care and environment.

For the first six years that she cared for Joseph, his guardian, LaSalle, paid her $450 per month. (She had been named the guardian of Joseph's person.) In 1986, she wrote LaSalle to ask for an increase in this monthly amount because she could no longer afford to care for her brother with the amount LaSalle had been paying her. LaSalle increased the monthly amount to $925 plus $40 for transportation, but informed the petitioner that this was the maximum amount it could pay her because it could not pay her more per month than it received from the V.A., minus deductions for Joseph's personal needs and transportation. In addition to other expenditures for the decedent's care, the petitioner purchased an electric recliner for him and repaired water damage caused by him.

On October 22, 1991, the petitioner filed a motion to excuse the delayed filing of her claim against the estate, and, on November 26, 1991, she filed a memorandum in support of her motion. She explained that the decedent was designated totally disabled by the V.A. and that LaSalle, as his guardian, paid her from the decedent's V.A. benefits for his care and maintenance.

The petitioner explained her delay in filing her claim against the decedent's estate after he died on February 9, 1990. She believed that she would inherit the decedent's entire estate because she took care of him for 11 years without the assistance of any of his other heirs and because a V.A. inspector had told her that she would inherit the decedent's estate upon his death. In addition, LaSalle never sent her a notice that she might be entitled to file a claim against the decedent's estate. Based on her care of the decedent, her lack of personal legal representation and her minimal contact with the other heirs (she had been raised in a foster family), she signed the affidavit stating that she was the decedent's sole heir.

The petitioner also asserted that LaSalle received $100 per month in guardian or trustee fees; LaSalle was asking for $3800 in administrator fees; and its attorneys were asking for fees and expenses of $4208. LaSalle's attorneys proposed that the remaining $95,893.56 in the estate be distributed as follows: one-sixth each to the petitioner and Edward Rollins and one-third each to Demetris Rollins and Margo Walker.

On October 22, 1991, the judge issued an order regarding the petitioner's motion to excuse the delayed filing of her claim. He stated that the petitioner's knowledge of other heirs was determinative concerning her right to file her claim. On November 26, 1991, the judge entered an order that the petitioner's claim was time-barred because signing the petition for letters of administration gave her actual notice of the estate administration. We construe this order to be one dismissing her claim.

On December 5, 1991, the petitioner filed a motion to dismiss the probate estate for lack of jurisdiction or for reconsideration of the November 26, 1991, order. On December 20, 1991, the petitioner filed a notice of appeal from the judge's orders of October 22 and November 26. The appeal from these orders is No. 91-4104 in this court.

While the appeal in No. 91-4104 was pending, on May 14, 1992, the judge vacated the order of November 26, 1991. He decided that the petitioner's claim was not time-barred because she was a reasonably ascertainable claimant, but he nevertheless barred her claim for services rendered and expenses incurred during the decedent's lifetime because, he said, she should have asserted these claims in the guardianship proceeding rather than against the decedent's estate. On June 2, 1992, the judge reconsidered this order sua sponte. He vacated the portion of the May 1992 order that stated the petitioner's claim was barred, in effect reinstating her claim. The June 2 order makes the petitioner's appeal in No. 91-4104 moot, and that appeal is dismissed.

On August 14, 1992, the petitioner filed an amended claim against the estate. In count I, the petitioner asserted that she was entitled to $125,000 for services she rendered to the decedent and personal funds she expended for his care. In count II, the petitioner asserted a statutory custodial claim for $125,000 under section 18-1.1 of the Probate Act of 1975 ("the Act") (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 18-1.1 (now 755 ILCS 5/18-1.1 (West 1992)). LaSalle filed an answer which included two affirmative defenses, one of which was a claim that Section 18-1.1 of the Act was unconstitutional. The record does not contain an answer to the amended claim filed by the heirs. After a trial in which LaSalle and the heirs participated in the defense, the judge denied both counts of the petitioner's claim. Appeal No. 93-1415, which we consolidated with the now-dismissed appeal No. 91-4104, is from the order denying the petitioner's two-count claim.

We will first consider the petitioner's argument that the judge erred in applying the Dead Man's Act (735 ILCS 5/8-201 (West 1992)) to exclude her testimony concerning the extent of her care of the decedent and his physical and mental condition. The petitioner presented the testimony of three witnesses: herself; Karen Cook, a paralegal who prepared a compilation of the guardian's accounts for the ten years before the decedent's death; and Marshall Horsman, an expert who testified about the costs of nursing services and nursing homes.

The judge substantially limited the testimony of the petitioner's witnesses pursuant to the respondents' objections under the Dead Man's Act. The judge admitted Cook's compilation of the accounts subject to the respondents' objections as to any content referring to the care the petitioner provided to the decedent. The judge similarly limited Horsman's testimony. Horsman was prepared to testify to the value of the petitioner's services in caring for the decedent, but after voir dire by the respondents, the judge ruled that Horsman could only testify in a hypothetical manner. During voir dire, Horsman admitted that his opinion of the value of the petitioner's services was based on information he had received from the petitioner herself.

The respondents also objected to the petitioner's testimony that the decedent had lived with her and that she had cared for him. The trial judge sustained most of these objections, but some testimony was allowed to stand:

"MR. BRIDEWELL [representing the petitioner]: Did anyone else share the home with you there in Pomona?

A. Anyone else other than Joseph?

MR. LANGE [representing LaSalle]: Objection move to strike.

THE COURT: She may refer to him.

A. Yes, I lived with my children. I have five children ...

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