Eiseman v. Lerner

• Decision Date: 07 September 1978
• Docket Number: No. 76-1364,76-1364
• Citation: 20 Ill.Dec. 824,64 Ill.App.3d 185,380 N.E.2d 1033
• Parties: , 20 Ill.Dec. 824 Sonda Helene EISEMAN, Bruce Ira Eiseman, Robert Elliott Eiseman, and Gail Terri Eiseman, a minor, by her father and next friend, Harvey Eiseman, Plaintiffs- Appellants, v. Jacklyn LERNER and Samuel J. DeCarl, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1033

380 N.E.2d 1033

64 Ill.App.3d 185, 20 Ill.Dec. 824

Sonda Helene EISEMAN, Bruce Ira Eiseman, Robert Elliott

Eiseman, and Gail Terri Eiseman, a minor, by her father and next friend, Harvey Eiseman, Plaintiffs- Appellants, v. Jacklyn LERNER and Samuel J. DeCarl, Defendants-Appellees.

No. 76-1364.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 7, 1978.

Allen C. Engerman, Barry A. Erlich, Solomon, Rosenfeld, Elliott, Stiefel & Engerman, Chicago, for plaintiffs-appellants.

Edward L. S. Arkema, Chicago (Harry G. Fins, Chicago, of counsel), for defendants-appellees.

JOHNSON, Presiding Justice.

This action was brought in the Chancery Division of the Circuit Court of Cook County to impose a constructive trust and for certain other relief regarding the personal property of decedent, Rivian Eiseman. The cause was transferred to the probate division where plaintiffs' motion for discovery was denied and the complaint was dismissed for failure to state a claim upon which relief could be granted. The order of dismissal is being appealed.

Rivian Eiseman died intestate on January 6, 1967. At the time of her death, she was divorced from Harvey Eiseman and left surviving her four minor children, plaintiffs-appellants, Sonda Helene, born November 8, 1951; Bruce Ira, born February 10, 1953; Robert Elliott, born July 5, 1956; and Gail Terri, born November 23, 1958. When decedent's estate was opened in the probate division, defendants-appellees Jacklyn Lerner and Samuel J. DeCarl were appointed co-administrators of the estate by the court. Defendant Lerner is plaintiffs' aunt. On September 9, 1969, a final account was approved and a final order was entered closing the estate.

In their complaint, filed June 12, 1975, plaintiffs alleged that defendants failed to include 20 of the 88 items listed in the inventory and failed to account for 38 of the 68 items in the final account. Moreover, plaintiffs alleged that defendants' final account discloses that certain jewelry totaling 6 of the 30 items listed in the final account were purchased by defendant Lerner. Plaintiffs prayed for (1) the imposition of a constructive trust upon the personal property of the estate, (2) an injunction enjoining defendants from transferring possession of or disposing of said property, (3) an accounting of the property, (4) delivery of the property to the plaintiffs, and (5) a judgment against defendants for punitive damages.

The questions for review are (1) whether the trial court erred in granting defendants' motion to transfer this cause to the probate division of the circuit court, (2) whether plaintiffs should have been allowed discovery, (3) whether plaintiffs' action was barred by laches, and (4) whether the trial court erred in granting defendants' motion to strike and dismiss plaintiffs' complaint.

Plaintiffs contend that the trial court erred in granting defendants' motion to transfer this cause to the probate division of the circuit court. This contention is based on plaintiffs' argument that only a court of chancery can compel the imposition of a constructive trust and order an injunction and accounting as requested in their complaint. We disagree.

The 1970 Illinois Constitution provides that "Circuit Courts shall have original jurisdiction of all justiciable matters * * * ." (Ill.Const.1970, art. VI, § 9.) The authority of the probate division of circuit courts to impose trusts (In re Estate of Tarr (1976), 37 Ill.App.3d 915, 917, 347 N.E.2d 69, 70) and order accountings has been settled in Illinois. (People ex rel. Dahm v. Corcoran (1968), 39 Ill.2d 233, 237, 234 N.E.2d 794, 796; In re Estate of Garrett (1967), 81 Ill.App.2d 141, 150, 224 N.E.2d 654, 659.) Here, the probate division was competent to fashion an adequate remedy. The trial court did not err in transferring this cause to the probate division of the circuit court.

Plaintiffs were denied discovery upon defendants' oral request that discovery be stayed. Plaintiffs argue that they should have been allowed discovery according to Shaw v. Weisz (1950), 339 Ill.App. 630, 91 N.E.2d 81. In Shaw, the ultimate issue for determination in a suit brought by a deceased beneficiary's heirs was whether under the trust agreement the co-trustee failed to perform his duties under the trust agreement. The court held that the heirs were entitled to pretrial discovery of facts concerning the co-trustee's alleged nonperformance. (Shaw, at 641, 91 N.E.2d 81.) Here, the plaintiffs' complaint questions the performance of defendants, the co-administrators of decedent's estate. The fiduciary relationship present in Shaw between the co-trustee and the heirs to the beneficiary of the trust can be likened to the relationship between the co-administrators and the heirs in the instant case. We hold that plaintiffs should have been allowed discovery.

Defendants argue that plaintiffs' action was barred by laches because the complaint was not filed until almost 6 years after the estate was closed, and plaintiffs did not state a reason for the delay. Defendants further argue that a guardian ad litem represented plaintiffs during the probate proceedings so the judgment should be binding and Res judicata as to the plaintiffs for all purposes. The probate record shows that when the complaint was filed the youngest plaintiff, Gail Terri, was still a 16-year-old-minor. Another plaintiff, Robert Elliott, was 18 years and 11 months old. In re Estate of Sheehan (1937), 290 Ill.App. 551, 554-55, 9 N.E.2d 63, 65 answers defendants' argument precisely by holding that a minor's claim is not barred by limitations until 2 years after obtaining majority even though a guardian ad litem has been appointed. (See also Stanczyk v. Keefe (7th Cir. 1967), 384 F.2d 707; Desiron v. Peloza (1941), 308 Ill.App. 582, 32 N.E.2d 316.) In Stanczyk, the court held that "Under Illinois law the minor's right of action lives until two years after he attains his majority, and he may assert it at any time during that period." (Stanczyk, at 708.) The statutory basis for this exception for minors can be found in section 21 of the Limitations statute (Ill.Rev.Stat.1965, ch. 83, par. 22). Therefore, two of the plaintiffs still had the right to bring an action against defendants when the complaint was filed in the case at bar, since one plaintiff was a minor and another had reached majority only a year earlier.

The trial court granted defendants' motion to strike and dismiss plaintiffs' complaint. In their motion, defendants contended that plaintiffs' complaint did not state facts sufficient to entitle them to the relief requested, in that no facts as to fraud or undue influence were alleged. Plaintiffs' complaint alleged, in substance, that defendants wrongfully and maliciously converted and took possession of personal property of decedent's estate. It alleged that defendants wilfully failed to properly account for some of the personal property...