Estate of Bajonski, In re

• Decision Date: 20 November 1984
• Docket Number: No. 83-2866,83-2866
• Citation: 129 Ill.App.3d 361,84 Ill.Dec. 672,472 N.E.2d 809
• Parties: , 84 Ill.Dec. 672 IN RE ESTATE OF Florian BAJONSKI. (William Manhart, Petitioner-Appellant, v. Andrew Bajonski, Adm'r of the Estate of Florian Bajonski, et al., Respondents- Appellees.)
• Court: United States Appellate Court of Illinois

Page 809

472 N.E.2d 809

129 Ill.App.3d 361, 84 Ill.Dec. 672

IN RE ESTATE OF Florian BAJONSKI (William Manhart, Petitioner-Appellant, v. Andrew Bajonski, Adm'r of the Estate of Florian Bajonski, et al., Respondents- Appellees.)

No. 83-2866.

Appellate Court of Illinois First District, Second Division.

Nov. 20, 1984.

Rehearing Denied Jan. 8, 1985.

Keith A. Ligon, Chicago, for petitioner-appellant.

Sneider & Troy, Chicago (Richard J. Troy and William G. Hutul, Chicago, of counsel), for respondents-appellees.

STAMOS, Justice:

On November 1, 1983, the Probate Division of the circuit court entered an order granting the motions of Andrew Bajonski, Administrator of the estate of Florian Bajonski and Elizabeth Bajonski Harper, heir, to dismiss with prejudice the Petition of William Manhart to Complete Contract of Decedent. The court ruled, as a matter of law, that the contract entered into between Manhart and the decedent required the personal service of the decedent and, consequently, terminated upon his death.

Florian Bajonski died on December 18, 1979, and Andrew Bajonski was appointed Administrator of the estate. An asset of the estate which forms the subject matter of this litigation, is an oil painting known as "The Convinced St. Thomas." Manhart claims that, on December 15, 1978, prior to Florian Bajonski's death, he and Florian Bajonski had entered into an agreement that was modified on May 28, 1979, in reference to the painting. The agreement purports to give Manhart the exclusive right to sell the painting, receiving a percentage of the sale price as payment for his services. The pertinent provisions of the December 15, 1978, agreement provide as follows:

I.F. Bajonski hereby give and grant William Manhart exclusive right of sale of my Rembrandt painting entitled [illegible-said to read "The Convinced St. Thomas"]. The terms of such sale, encluding [sic] the price shall be subject to my acceptance, there of upon the closing of said sale I shall pay you from the proceeds 10% of gross net price.

/s/ Florian B. Bajonski

The agreement was modified on May 28, 1979 as follows:

In the above contract William Manhart and Florian Bajonski agree to raise the percentage to 20% as of May 28, 1979, due to the fact that William Manhart will be responsible for all expenses connected with this painting as of May 28, 1979. Exclusive begins as of May 28, 1979 and ends upon sale of painting.

/s/ William H. Manhart /s/ Florian B. Bajonski

The record discloses that the primary purpose of the above agreements was to authenticate the painting as a work by the Master Rembrandt and to then secure a buyer for the authenticated painting. Neither the authentication nor the sale were completed during the lifetime of Florian Bajonski. Manhart's Petition to Complete Contract alleges expenditures of $13,613.66 prior to Bajonski's death, apparently spent by Manhart in his effort to authenticate the painting, and a total of $83,397.00 spent at the time the petition was filed on March 28, 1980.

Subsequent to Florian Bajonski's death on December 18, 1979, the Administrator of his estate entered into a written agreement with Manhart on June 30, 1980, though neither of the copies in the record are signed or executed by either party. This agreement provides in part:

Whereas, the Estate does not admit the enforceability or legal validity of the aforesaid purported agreements, [Manhart's prior agreements with Florian Bajonski] but is nevertheless willing to establish a viable contractual relationship with Manhart.

The agreement also provided Manhart with the exclusive right to authenticate and sell the painting, similar in most respects to the prior agreements, at 20% commission. The duration of the agreement was two years ending July 1, 1982. The agreement further secured Manhart's right to his commission, under stated circumstances, if the painting was sold or donated after termination of the agreement.

On May 11, 1982, the Administrator petitioned the circuit court for permission to allow Manhart to exhibit the painting at the World's Fair in Tennessee. The order granted Manhart permission to exhibit the painting and, during the exhibition of the painting, the agreement between the Administrator and Manhart was extended through October 31, 1982, to coincide with the conclusion of the Fair.

On March 28, 1983, Manhart filed his Petition to Complete Contract of Decedent; in it he outlined the sums expended as a result of the contract, alleged that the value of the painting had increased substantially and that the Administrator had refused to acknowledge the validity of the agreement and had interfered with Manhart's exclusive rights acquired under the agreements.

The administrator filed a motion to dismiss Manhart's petition, though it is not clear from the face of the pleading whether it was filed as a "Motion with respect to pleadings" (Ill.Rev.Stat.1982, ch. 110, par. 2-615) or as an "Involuntary dismissal based upon certain defects or defenses." (Ill.Rev.Stat.1982, ch. 110, par. 2-619.) The Administrator sought a dismissal because the alleged contract between Manhart and the decedent was personal in nature and, hence, performance was impossible; the agreement between Manhart and the Administrator was a novation; and that Manhart's petition represented a claim against the estate filed after the 6 month statutory time period. Elizabeth Harper, one of the heirs to the estate, also filed a motion to dismiss, pursuant to section 2-619, raising the same points as the Administrator's motion, as well as arguing that Manhart's exclusive right acquired under the extension clause terminated upon the sale of the painting, an event which may never occur. The compulsory performance of the contract required of the Administrator could thus prevent the estate from ever being closed, allegedly in derogation of the "precatory" language of section 19-10 of the Probate Act (Ill.Rev.Stat.1983, ch. 110 1/2, par. 19-10), whereby contracts of a decedent can be ordered performed by the representative.

At the hearing on the motions on November 1, 1983, the court dismissed with prejudice Manhart's petition to complete the contract because the language of the agreement, viz, "subject to my acceptance," called for personal performance by the decedent and, consequently, the contract terminated upon his death. An order was entered that day dismissing the petition and Manhart appeals therefrom.

The issue presented for review is whether the trial court erred in dismissing with prejudice Manhart's petition. Initially though, an examination is warranted regarding the form of the motions to dismiss and the manner in which the motions were entertained in the court below. The Administrator's motion is not labeled, whereas Elizabeth Harper's motion is labeled as a section 2-619 motion. The trial court treated the motions as motions to strike and dismiss for failure to state a cause of action, indicative of a section 2-615 motion. An analysis of the petition and the motions to dismiss, however, discloses that the proper label for both motions is section 2-619 and that the motions should have been so treated by the court below. Under these facts however, this error does not impugn the integrity of the trial court's decision.

The trial court dismissed the petition because the contract required personal performance by the decedent and therefore terminated upon his death, an allegation included in both motions to dismiss. Under section 2-619(a)(9), an action may be dismissed if the claim is "barred by other affirmative matter avoiding the legal effect of or defeating the claim." (Ill.Rev.Stat.1983, ch. 110, par. 2-619(a)(9).) An affirmative matter within the meaning of that section is "something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint." (Bertling v. Roadway Express, Inc. (1984), 121 Ill.App.3d 60, 63, 76 Ill.Dec. 628, 459 N.E.2d 265 quoting Austin View Civic Association v. City of Palos Heights (1980), 85 Ill.App.3d 89, 96, 40 Ill.Dec. 164, 405 N.E.2d 1256.) Discharge of one's contractual obligations because of death is "in the nature of a defense" that negates the alleged cause of action when the person who died was the one required to render the personal performance. The law in this state is settled that contracts requiring the continued existence of a particular person or thing terminate upon the death or destruction of that person or thing. (People ex rel. Palmer v. The Peoria Life Insurance Co. (1941), 376 Ill. 517, 521, 34 N.E.2d 829; The Martin Emerich Outfitting Co v. Siegel, Cooper & Co. (1908), 237 Ill. 610, 615-16, 86 N.E. 1104.) Thus, in the case of a personal service contract,...