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December 5, 1995


Appeal from Circuit Court of Logan County. No. 92CH25. Honorable David L. Coogan, Judge Presiding.

Petition for Rehearing Denied and Released for Publication January 18, 1996. As Corrected July 30, 1996.

Justices: Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, P.j., Honorable James A. Knecht, J., Concurring

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In November 1992, plaintiff, Cathy Schwartz, filed a partition lawsuit against defendant, Judith E. Cortelloni, Schwartz' half sister, alleging that under the will of their maternal great-aunt, they owned 160 acres of Logan County farm-land as tenants in common. Schwartz sought a division of the property and an accounting of the rents and profits collected by Cortelloni during her possession of the land. In July 1994, the trial court granted Schwartz the relief she requested.

Cortelloni appeals, arguing that (1) the trial court erred by (a) denying the motion to disqualify Schwartz' counsel, which was based on counsel's prior representation of Cortelloni, (b) admitting documents obtained through abuse of discovery procedures, and (c) allowing the partition complaint and finding that Schwartz, a child born out of wedlock and adopted by others, should take an equal share of a remainder interest under a will as a descendant of her biological mother; and (2) treating an adopted child under a will as a descendant of both her adopted and biological parents while her unadopted sibling is treated as a descendant of only her natural parents denies equal protection of the law to the unadopted child. Because we agree with Cortelloni's first argument, we reverse.


On June 25, 1945, Katherine Wakeman executed a will, granting a life estate in the farmland in question (hereinafter the Lawndale 160) and in an additional 120 acres in Logan County to her niece, Katherine J. Malerich, with a remainder interest to the blood lineal descendants of Malerich. The terms of the will provided that "upon the death of my niece, Katherine J. Malerich, I give and devise the remainder in fee in each of the above tracts of farmland to the blood lineal descendants or descendant of my said niece surviving at her death." At the time of Wakeman's execution of the will, Malerich and her husband, James E. Malerich, had one daughter, Judith (the defendant, now Judith Cortelloni, born July 15, 1944). In 1948, Wakeman died owning both the Lawndale 160 and the 120-acre property.

In July 1955, following the death of her husband, Malerich was appointed guardian of Judith's estate in Logan County circuit court (guardianship case No. 275). In September 1956, the Gehlbach law firm (consisting of Charles Gehlbach--John Gehlbach's now-deceased uncle--and John Gehlbach) appeared as attorneys for Malerich, in her role as Judith's guardian, in a petition to sell Judith's interest in four lots owned by Judith's father prior to his death (case No. 275). John Gehlbach testified that he represented the best interests of Judith when the Gehlbach law firm filed the petition in the guardianship case. In 1956, Judith, her mother, and John Gehlbach went to the sheriff's office in Logan County to review "papers." In October 1956, the trial court allowed the petition. Soon after, on November 2, 1956, Cathy Schwartz was born out of wedlock to Malerich, who subsequently consented to Schwartz' adoption.

In February 1963, Malerich, as Judith's guardian and pursuant to a court order, filed an amended inventory in guardian case No. 275. That inventory listed Judith's remainder interest in the Lawndale 160 as an asset of Judith's estate. In May 1963, John Gehlbach signed a receipt for $750 for legal services rendered to Malerich as Judith's guardian, although he does not now recall for what services Malerich made the payment.

In August 1965, the court entered an order closing the guardianship estate and discharging Malerich as Judith's guardian. Neither John Gehlbach nor the Gehlbach firm ever sought or received leave to withdraw as attorneys for Malerich in her capacity as Judith's guardian.

In April 1992, Malerich died. Shortly thereafter, Tom Schwartz (husband of Cathy Schwartz) called James Hickey (an acquaintance of John Gehlbach and the Schwartzes) and said that he recently had received information that Malerich was Cathy Schwartz' biological mother and that Cathy Schwartz was interested in learning about Malerich's health history. In May 1992, Hickey relayed the substance of that conversation to John Gehlbach, who responded that he knew Malerich had another child. Following this conversation, John Gehlbach inspected the abstract of the title to the Lawndale 160, which included a copy of Wakeman's will. Subsequently, John Gehlbach told Cathy Schwartz about Katherine Wakeman and the existence and location of the Lawndale 160 (the 120-acre plot is not part of this case). At that time, Schwartz had not yet retained John Gehlbach's services in the present matter, although he had represented her in other matters.

In July 1992, John Gehlbach obtained a court order permitting him to inspect Schwartz' adoption records. In November 1992, John Gehlbach filed a partition complaint on behalf of Schwartz against Cortelloni, alleging that under Wakeman's will, Schwartz and Cortelloni, as the only children of Malerich, owned the Lawndale 160 in fee simple as tenants in common.

In August 1993, Cortelloni filed a motion to disqualify John Gehlbach and the Gehlbach firm on the ground that it had previously represented Cortelloni when it represented Malerich in her capacity as Cortelloni's guardian. In January 1994, the trial court denied the motion to disqualify. In July 1994, after conducting a hearing, the court found that Schwartz was a child born to Malerich and ordered that (1) the Lawndale 160 be divided between Schwartz and ...

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