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In re Estate of Jackson

December 30, 2004

ESTATE OF CAROLYN J. JACKSON, DECEASED.


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

The opinion of the court was delivered by: Justice Wolfson

The decedent's son, the administrator of her estate, brought a proceeding to recover real property purportedly belonging to the estate. The decedent's two daughters and son-in-law contended the decedent granted the property to the daughters in a quit claim deed two weeks prior to her death. The trial court granted partial summary judgment for the son and declared the deed invalid. The daughters and son-in-law appeal that decision. We affirm.

[9]     FACTS

The decedent, Carolyn J. Jackson, died intestate on May 4, 2002. She left as heirs two daughters, Kimberly R. Jackson and Stephanie M. Tyler, and one son, Darrell B. Jackson, the administrator of the estate. On April 17, 2003, Darrell ("petitioner") initiated a proceeding pursuant to section 16-1 of the Probate Act, 735 ILCS 5/16-1 (West 2002), for issuance of a citation to recover an asset owned by the decedent--the real property at 11538 S. Elizabeth in Chicago. Named in the petition were respondents Kimberly, Stephanie, and Stephanie's husband, Timothy Tyler ("respondents"). Tyler is an attorney.

At issue in the proceeding was a "Quit Claim Deed" dated April 20, 2002, conveying the property to Stephanie and Kimberly. The deed indicates it was prepared by Timothy Tyler. The deed is notarized by Norma Herrera, dated April 20, 2002. Although decedent's signature is on the deed, Stephanie admitted in her response to a request to admit facts that the decedent did not sign her name to the deed. Stephanie admitted she wrote the words "Carolyn J. Jackson" on the deed. She also admitted the notary's statement that the decedent personally appeared before her and signed the deed in her presence was false. The deed was recorded on May 24, 2002, three weeks after decedent's death.

In his motion for partial summary judgment, petitioner contended the deed was a nullity because respondents admitted the decedent did not sign the deed conveying the property. In their response, respondents said Stephanie and Timothy had both testified that decedent had asked, authorized, and directed Stephanie to sign the deed for her. Respondents also referred to the discovery depositions of Decota Wilmington and Bernard Lee, who testified that prior to her death, decedent informed them of her desire to convey and leave her house to Stephanie and Kimberly. In his reply, Petitioner contended the evidence proffered by respondents was inadmissible because: (1) the testimony was not part of the trial court record; (2) the alleged statements by decedent were hearsay; (3) the testimony of Stephanie and Timothy, as interested parties, was barred by the Dead Man's Act, 735 ILCS 5/8-201 (West 2002); and (4) Wilmington and Lee's testimony of decedent's future intent was irrelevant to whether decedent directed Stephanie to sign her name to the deed. None of the deposition testimony to which respondents refer is in the trial record. Apparently, none of the depositions was ever filed in the trial court.

On January 23, 2004, the trial court entered an order finding the deed invalid and entering partial summary judgment for petitioner. The order states:

"The court finds that, while there is no evidence of an intent to forge the deed dated April 20, 2002, *** there is no competent admissible evidence that Decedent directed respondent Stephanie Tyler to sign Decedent's name to the Deed."

Respondents filed a motion to reconsider on February 23, 2004. The trial court denied the motion on March 30, 2004, finding "there was no evidence to show that decedent directed someone to sign her name to a conveyance deed." Respondents filed their notice of appeal on April 9, 2004.

DECISION

First, we must consider our jurisdiction. Respondents incorrectly assert that we have jurisdiction pursuant to Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a). Rule 304(a) does not apply to this appeal. The trial court's order entering partial summary judgment did not contain the requisite language finding there is no just reason for delaying either enforcement or appeal or both. 155 Ill. 2d R. 304(a).

Petitioner suggests this case falls under Supreme Court Rule 304(b)(1), which makes appealable a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party. 155 Ill. 2d R. 304(b)(1). We agree. The order in this case was a final determination of the rights of the parties to the real property. The court found respondents had no right to the property because the deed was invalid, and the property rightfully belonged to the estate. See In re Estate of Thorpe, 282 Ill. App. 3d 612, 617, 669 N.E.2d 359 (1996) (order construing will and approving sale of farm was final order which had to be appealed within 30 days under Rule 304(b)(1)); In re Estate of Mueller, 275 Ill. App. 3d 128, 139, 655 N.E.2d 1040 (1995) (court's denial of petition to intervene in estate proceedings was a final and appealable order under Rule 304(b)(1)).

Orders within the scope of Rule 304(b)(1), even though entered before the final settlement of estate proceedings, must be appealed within 30 days of entry or be barred. Estate of Thorpe, 282 Ill. App. 3d at 616. Petitioner also suggests respondents' appeal is untimely because the tolling provisions of Rule 303 do not apply to appeals filed under Rule 304(b). Rule 303 allows the filing of post-trial motions in the trial court to toll the time for filing a notice of appeal. 155 Ill. 2d R. 303(a)(1).

Here, the respondents filed their appeal within 30 days of the court's order denying their motion to reconsider. Our jurisdiction depends on whether the tolling provision in Rule 303 applies to a Rule 304(b)(1) appeal. Rule 304(a) was amended in 1988 to provide that "[t]he time for filing a notice of appeal shall be as ...


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