Appeal from the Circuit Court of Cook County. No. 99-P-864 Honorable Jeffrey Malak, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Cherylee Trenkamp, administrator of the estate of Sam G. Parisi, deceased, appeals from the circuit court's denial of her petition to vacate an order declaring heirship. On appeal, Cherylee contends that the trial court erred in denying her petition where there was insufficient evidence to find that the deaths of Sam Parisi and Carol Parisi were not simultaneous under the "Simultaneous Deaths" section of the Probate Act of 1975 (755 ILCS 5/3-1 et seq. (West 1998)) (the Act), and where the court had previously determined that section 3-1 of the Act applied to the estate of Carol Ann Parisi. Cherylee also argues that the court erred in denying her petition for rehearing and excluding her expert's affidavit. For the reasons set forth below, we reverse and remand.
On January 20, 1999, Sam Parisi and his daughter, Carol Parisi, were found dead in their home. Both bodies were in various stages of decomposition and the police determined that they had been dead for over three weeks. Sam was discovered on the floor in a hallway near a heating vent wearing pajamas and covered with a blanket. The medical examiner later determined that Sam's death was due to natural causes, namely, coronary atherosclerosis. Carol was found lying on her bed under a sheet and was wearing a sweater and pants. Carol's death was ruled accidental from salicylate intoxication. The death certificates reflect times of death as 3:26 p.m. for Sam and 3:28 p.m. for Carol, which were the times their bodies were discovered.
Sam left a will that bequeathed his entire estate to his wife, Katherine, and, if she predeceased him, to Carol. Katherine died in 1993, and Sam had no other children. Carol died intestate, never married and had no children. Cherylee, as Sam's niece and Carol's first cousin, was appointed administrator of both estates in February 1999. Carol's and Sam's estates progressed simultaneously, but separately, through the court system with the same judge. For clarity's sake, we will review the procedural history of each estate separately.
In Carol's estate, Cherylee identified that Carol had four other living heirs: Cherylee's brother, Randall Sanfilip, and three maternal first cousins, Thomas C. Eckel, Edward M. Eckel and Anna June Eckel Reimbold. In opening Carol's estate, Cherylee filed an affidavit of heirship on February 8, 1999, and an amended affidavit on July 19, 1999, stating that both Katherine and Sam predeceased Carol. The court entered an amended order declaring heirship based on Cherylee's July 19, 1999, affidavit and listed Carol's heirs as her five cousins and other unknown heirs. On December 14, 1999, the court entered an order that the administrator was researching the sequence of Carol's and Sam's deaths and set the matter for a hearing on February 14, 2000. On February 14, the court ordered that, unless evidence was submitted to the contrary before March 7, 2000, the court would apply section 3-1 of the Act and find that Carol survived Sam as to her solely owned property, Sam survived Carol as to his solely owned property and section 3-1 of the Act applied to all jointly owned property.
Thereafter, Anna June filed a motion to declare the sequence of deaths, arguing that there was sufficient evidence to prove that Sam died before Carol. She attached the affidavits of heirship sworn to by Cherylee which stated that Sam predeceased Carol. Further, Anna June included the reports of the medical examiner, Dr. Chira, which determined both causes of death. The reports also stated that Sam's body was in a moderately advanced stage of decomposition and had no stomach contents while Carol was found in an early state of decomposition with fluid in her stomach. However, the autopsy reports did not indicate the actual date and time of their deaths or the order in which they died. An investigator from the Cook County sheriff's police department attended the autopsies and reiterated some of the medical examiner's initial findings as to stages of decomposition and stomach contents in a portion of his report. Further, the sheriff's report stated that it was Dr. Chira's belief that Carol died at a later date than Sam. Anna June also attached part of the sheriff's evidence report which described the decomposed condition of the bodies. In response, Cherylee submitted the unsworn opinions of three experts who stated that the evidence was insufficient to establish the order of death. Neither party presented the court with any sworn affidavits, depositions or testimony concerning order of death.
Cherylee also filed a petition to vacate orders declaring heirship, explaining that her initial affidavits of heirship were based on a telephone conversation between her attorney and Dr. Chira where Dr. Chira stated his opinion that Sam died before Carol. However, Cherylee later learned that the medical examiner's reports failed to establish the order of death. Because Cherylee now had no evidence to substantiate that Sam predeceased Carol, she requested that the court vacate the order of heirship and determine the sequence of Carol's and Sam's deaths.
After a hearing on this issue on March 27, 2000, the court entered an order that "Carol is presumed to have survived Sam as to her estate as per statute." Thus, the court must have made the factual determination that the evidence was insufficient to establish the order of death and applied section 3-1 of the Act to Carol's estate. The court also held that "[a]ll pleadings filed concerning order of death may be used as pleadings in the Estate of Sam Parisi" and vacated the order of heirship of July 19, 1999. A second amended order declaring heirship, entered on May 17, 2000, reflected the court's finding that section 3-1 of the Act applied and listed Carol's five cousins as her only heirs. On August 1, 2000, the court ordered that the order of heirship previously entered stands.
In Sam's estate, Cherylee filed an affidavit of heirship on February 8, 1999, and the court then entered an order declaring heirship based on this affidavit and listed Carol as Sam's only heir. Cherylee next filed a verified amended petition for probate of a will on July 19, 1999, which gave the estate of Carol as Sam's heir. Following the entry of the order declaring heirship in Carol's estate, Cherylee filed a petition to vacate the order declaring heirship and the court determination of order of death in Sam's estate on May 17, 2000. That petition incorporated by reference, pursuant to court order, all documents filed in Carol's estate regarding order of death. After Anna June filed a response, the court denied Cherylee's petition on August 1, 2000. Cherylee filed a petition for rehearing, attaching a new affidavit from a medical expert stating that the evidence was insufficient to establish order of death. Thomas filed an appearance in Sam's estate and both he and Anna June filed responses to Cherylee's petition for rehearing. On November 14, 2000, the court denied Cherylee leave to file the affidavit and also denied her petition for rehearing. Cherylee then filed this timely appeal.
Cherylee first contends that in Sam's estate the trial court erred in denying her petition to vacate the order declaring heirship entered on February 8, 1999, because there was insufficient evidence to find that the deaths of Sam and Carol were not simultaneous under section 3-1 of the Act. The original order declaring heirship relied upon Cherylee's affidavit which stated that Sam predeceased Carol and, therefore, listed Carol as Sam's sole heir. If Sam's and Carol's deaths were simultaneous as Cherylee contends, section 3-1 of the Act would apply. Under section 3-1, as discussed more fully below, Carol could not inherit from her father and Sam's only heirs would be his relatives, Cherylee and Randall. Thus, Cherylee argues, the February 8, 1999, order declaring heirship listing Carol as Sam's heir was incorrect and must be vacated in order to comply with section 3-1 of the Act. Thomas responds that this court cannot address this issue because Cherylee failed to include a transcript of the hearing in the record on appeal. Additionally, he argues that the trial court's decision was proper and was not against the manifest weight of the evidence.
Even without a transcript of the hearing, we can deduce what evidence was before the court at the August 1, 2000, ruling and address Cherylee's argument. In her petition to vacate filed on May 17, 2000, Cherylee incorporated by reference all documents regarding order of death entered in the estate of Carol Ann Parisi, pursuant to the court order dated March 27, 2000. Those documents were submitted to and reviewed by the court at the March 27, 2000, hearing in Carol's estate and included the affidavits of heirship sworn to by Cherylee, the autopsy reports, portions of the sheriff's report and three expert opinions. Further, both parties agree that no other evidence or testimony was received at the August 1 hearing. Therefore, we will review the trial court's decision to deny Cherylee's petition to vacate the order declaring heirship based on this evidence.
When reviewing the trial court's ruling, we determined whether the court's judgment was against the manifest weight of the evidence. Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154, 746 N.E.2d 827, 830 (2001); Janus v. Tarasewicz, 135 Ill. App. 3d 936, 942, 482 N.E.2d 418, 423 (1985). A judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be ...