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DUNLAP v. FIRST NATIONAL BANK OF DANVILLE

December 15, 1999

VERNON J. DUNLAP AND ALICE C. MILLER, PLAINTIFFS,
v.
THE FIRST NATIONAL BANK OF DANVILLE AND INTERNATIONAL GENEALOGICAL SEARCH, INC., DEFENDANTS.



The opinion of the court was delivered by: McCUSKEY, District Judge.

    ORDER

On June 5, 1998, Plaintiffs, Vernon J. Dunlap and Alice C. Miller, filed their Complaint (#1) against Defendants, the First National Bank of Danville (Bank) and International Genealogical Search, Inc. (IGS), This case is before the court for ruling on the Bank's Motion for Summary Judgment (#14) and IGS's Motion for Summary Judgment (#25). Both Motions for Summary Judgment are GRANTED.

FACTS

The parties have submitted deposition transcripts and other documents in relation to the pending Motions for Summary Judgment. The following recitation of facts is derived from all of the documentation submitted by the parties.

Sylvester W. Jefferson died on October 31, 1994. He was 83 years old. He left no will and very few personal effects. Sylvester was a World War II veteran and was hospitalized in 1943 for severe mental problems. He remained disabled, and the Veterans Administration (VA) provided for his care until his death. He had not been visited by any family members for many, many years. The Bank was named guardian of Sylvester's estate in 1962. At the time of Sylvester's death, Susan Stratman was a vice president and trust officer at the Bank. She bad primary responsibility for Sylvester's estate. Stratman attempted to locate family members to make funeral arrangements. She contacted Carol Bowen at the home where Sylvester had been living, contacted the local VA office in Danville and called a veteran's organization in St. Louis, Missouri. She was unable to obtain any information about Sylvester's family. Stratman went ahead and made funeral arrangements.

Because of Sylvester's death, the guardianship was closed. The Bank then hired Alan Krapf to act as its attorney regarding the estate, which had substantial assets. Krapf had been the Bank's counsel for the guardianship of Sylvester's estate. The Bank, through Krapf, petitioned the circuit court of Vermilion County (Probate Court) for letters of administration so that a determination could be made where to distribute the assets in Sylvester's estate. On May 2, 1995, the Probate Court entered an Order appointing the Bank as the independent administrator of Sylvester's estate. Krapf published a "Death and Claim Notice" in a newspaper circulated in Vermilion County.

Stratman was responsible for overseeing the administration of Sylvester's estate. Stratman had very little information regarding Sylvester's family. She did have a handwritten letter which was found in an old billfold belonging to Sylvester. The billfold had been given to Stratman to put into the guardianship file. The letter stated that it was written in St. Louis and was dated October 11, 1943. It was addressed "hello Dad" and was signed "Samuel Jefferson." In the letter, Samuel said that he wished to see his Dad and hoped his Dad would be home for Christmas. The letter also mentioned "Mother" and "billy." The Bank also had a copy of a 1962 VA field examination request. This document stated that Sylvester had been hospitalized at the VA Hospital in Danville since 1944 and was 100% disabled. The document also stated that Sylvester had a wife, Lola L. Jefferson, who had two sons and lived in St. Louis. The Bank also had information that Lola had died in 1986.

Because Stratman had been unable to locate Sylvester's family and had little information to go on, she decided to hire an heir search firm to locate or determine the identity of Sylvester's heirs. She had seen IGS's advertisements in a trust and estate magazine and had received mailings from them. She asked Krapf to contact them. On May 10, 1995, IGS sent a proposal to Krapf. The Bank accepted this proposal, and Stratman asked Krapf to oversee IGS's work.

On June 14, 1995, the Probate Court entered an order granting the Bank authorization to hire IGS "for the purposes of attempting to locate heirs-at-law of Sylvester Jefferson." In July 1995, Donald Metzger entered his appearance in the Probate Court on behalf of William Jefferson. Kemp & Associates, another heir search firm, also entered its appearance in the. Probate Court through its attorney Gilbert Saikley. Saikley represented to he court that William Jefferson was Sylvester's heir and had signed a contract with Kemp & Associates. Metzger told Krapf that Kemp & Associates determined that Sylvester was married to Lola L. Young and that he and Lola had two children, William Jefferson and Samuel Jefferson Metzger provided Krapf with a signed affidavit of heirship which asserted that William Jefferson and Samuel Jefferson were the descendants of Sylvester.

Randall White, Research Manager for IGS, received the case from IGS's sales department in June 1995. White said he is a professional genealogist, but is not licensed. In July 1995, White assigned the case to Cheryl Trent. Trent has been employed by IGS, or its affiliated company, International Trading Services, since 1988. Trent testified that she has roughly two years of college in an unrelated field. Treat is not an accredited genealogist but was trained by management and senior employees as to how to conduct research through public records.

Trent stated that she and White reviewed the documents they received from Krapf. The documents received included: (1) a copy of the Probate Court Order authorizing the Bank to hire IGS; (2) Lola's death certificate; (3) Samuel's handwritten letter; (4) Sylvester's death certificate; and (5) the VA field examination request from 1962. Prior to Trent's involvement in the case, an IGS employee did some preliminary, usual background work, such as ordering census records, attempting to locate marriage records and so forth. There did not appear to be any records they could easily obtain. Trent attempted to obtain records from Social Security for Sylvester, William or Samuel and was unsuccessful. Trent sent a letter to the St. Louis School District requesting school records for William and Samuel and a letter to the St. Louis Registrar of Voters requesting information on William and Samuel. Trent received no response to these requests. White testified that they also checked city directory records for information.

Trent testified that she did obtain verbal information that William and Samuel were sons of Sylvester Jefferson. Trent stated that "there were a number of people who I had spoken to during the course of my research that told me that Sylvester Jefferson had two sons; William and Samuel." Trent stated she was given this information by Henrietta Parker, a cousin of Lola's, who she located based upon information from Lola's funeral records. Parker told her that neither William nor Samuel were married or had children. Parker told Treat the brothers lived together and took care of each other. Parker said one of the brothers was disabled and was in a wheelchair. Trent also spoke to Mildred Simmons, supervisor of Carr Square Tenant Management Office. Carr Square was the apartment or housing complex where William lived. Simmons said that Samuel had also lived there, but was deceased. William did not want to speak to Trent. However, William told Simmons that he was Sylvester's son, and Simmons relayed this information to Trent. William later agreed to speak to Krapf and told Krapf about Samuel's son, Gregory Jefferson. IGS was, then able to locate Gregory.

On October 4, 1995, White sent a letter to Krapf which identified William and Samuel as the sons of Sylvester. The letter stated that William was born on November 1, 1929, and resided in St. Louis. The letter stated that William told Simmons that his father was "Sylvester Jefferson." William also told Simmons that he and his brother Samuel had the same father. According to the letter, Simmons also stated that William was "mildly mentally handicapped" but understood all that was taking place regarding Sylvester's estate. The letter further stated that Samuel was born on November 3, 1930, and died April 29, 1992. Krapf obtained a copy of Samuels's death certificate, which states that Samuel's father was Sylvester Jefferson.

Trent sent a letter to Krapf on October 5, 1995. This letter stated
that IGS had spoken to a person at Missouri Family Services who had dealt
with William for several years. Through this contact, IGS confirmed that
William was somewhat mentally handicapped but  that "he has been able to
manage most of his affairs with some assistance, to date." On October
23, 1995, Trent sent a letter to Krapf stating that IGS had successfully
located Gregory Jefferson, Samuel's son. The letter said that Gregory
stated that Sylvester was his paternal grandfather.

On December 20, 1995, Gregory Jefferson appeared before the Probate Court and testified that he was 41 years old and lived in St. Louis. He testified that Sylvester had two children, Samuel Jefferson and William Jefferson. He stated that Sylvester was married to Lola Lee Jefferson and that both Sylvester and Lola were deceased. He testified that he was Samuel's only child and that he and William were "the sole remaining heirs" of Sylvester. On January 6, 1996, the Probate Court entered an Order which found that William and Gregory were Sylvester's "only heirs at law." On March 25, 1996, William appeared before the Probate Court. He testified that Sylvester Jefferson was his "daddy." He also testified that Gregory was the son of his brother Samuel. The Bank subsequently made distributions from the estate. On June 7, 1996, the Bank filed its final account in the Probate Court, showing all receipts and disbursements. The final account showed that IGS was paid $4,735 and the Bank received $5,350 for its administration of the estate. Gregory received a total of $158,874.16 and William received $103,439.10. Kemp & Associates received $52,958.05, its percentage of William's share of the estate pursuant to the terms of its contract with William. The final accounting also showed that Gregory and William received a total of $3,230.24 as reimbursement for expenses. On June 10, 1996, the Probate Court entered an Order closing the estate.

On January 21, 1997, Plaintiffs filed a petition to vacate the Probate Court's judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 Ill.Comp. Stat. 5/2-1401 (West 1996)). Plaintiffs named as Defendants the Bank, IGS, Kemp & Associates, Inc., Gregory S. Jefferson and William Jefferson. Plaintiffs stated that they were Sylvester's only surviving heirs and attached affidavits showing how they were related to Sylvester. Dunlap stated that he was Sylvester's uncle, and Miller stated that she was Sylvester's first cousin. Plaintiffs further stated that William and Samuel were not born to or adopted by Sylvester. Plaintiffs attached to their petition documents which were sent to American Research Bureau, Inc. (ARB), a genealogical search firm, by the Department of Veterans Affairs on January 8, 1997. These records included a deposition from Lola Lee Jefferson, dated August 29, 1944, apparently in regard to a request for VA benefits. Lola stated that she married Sylvester in St. Louis on December 28, 1934. She stated that William was born November 1, 1929, and was the son of Ford Stovall. Lola also stated that Samuel was born November 3, 1931, and was the son of Samuel Thomas. Lola stated that she was not married to either Stovall or Thomas. After her marriage to Sylvester, Sylvester accepted William and Samuel as his step children, Lola stated that her sons became known as William Jefferson and Samuel Jefferson and registered in school under those names. Other documents corroborated these facts, including a copy of Sylvester and Lola's marriage license and a copy of Samuel's birth certificate. The birth certificate was for "Samuel Young" and did not include the name of the father.

Plaintiffs filed an amended petition on September 5, 1997. In this petition, Plaintiffs stated that they were contacted by ARB in October 1995; at which time they were told they might be entitled to inherit from Sylvester's estate. They also stated "it was not until after June of 1996, that the ARB was able to determine the facts of decedent's heirship with sufficient specificity to establish that petitioners are entitled to inherit from the decedent."

The Probate Court dismissed the petition on December 8, 1997. The Probate Court specifically found that Plaintiffs had alleged no facts to establish or show due diligence on their behalf once they were informed that they may be heirs of Sylvester. Plaintiffs appealed. On September 10, 1998, the Appellate Court, Fourth District, affirmed the Probate Court's Order. In re Estate of Jefferson, No. 4-98-0018 (1998) (unpublished order). The Appellate Court rejected Plaintiffs' argument that the Probate Court should not have dismissed their amended petition because the order closing the estate was entered without notice to them and was obtained by fraud. The Appellate Court specifically found that no evidence showed that Plaintiffs or ARB ever contacted the Bank while the estate was open or ...


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