Estate of Medlen, In re

• Decision Date: 05 March 1997
• Docket Number: No. 2-96-0181,2-96-0181
• Citation: 222 Ill.Dec. 220,286 Ill.App.3d 860,677 N.E.2d 33
• Parties: , 222 Ill.Dec. 220 In re ESTATE OF Robert Lee MEDLEN, Deceased (Tifney Sarrels, on Behalf of Chastity Sarrels, Petitioner-Appellee, v. Deborah Kreciak, Adm'r, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

Page 33

677 N.E.2d 33

286 Ill.App.3d 860, 222 Ill.Dec. 220

In re ESTATE OF Robert Lee MEDLEN, Deceased (Tifney Sarrels on Behalf of Chastity Sarrels Petitioner-Appellee, v. Deborah Kreciak Adm'r, Respondent-Appellant).

No. 2-96-0181.

Appellate Court of Illinois Second District.

March 5, 1997.

Rance V. Buehler, Law Offices of Rance V. Buehler, West Dundee, Jeffrey L. Benson, Law Offices of Jeffrey L. Benson, West Dundee, for Deborah B. Kreciak.

McNamee & Mahoney, Ltd., Dundee, Charles E. Nave, McNamee & Mahoney, Ltd., Dundee, for Chastity Sarrels, Tiffney Sarrels.

Justice THOMAS delivered the opinion of the court:

The administrator of Robert Medlen's (decedent's) estate, Deborah Kreciak, appeals an order granting a petition to exhume decedent's body for DNA testing and denying a request for an injunction to prevent petitioner, Tifney Sarrels, from proceeding in the Illinois Industrial Commission (the Commission). The administrator raises the following issues for our consideration: (1) whether the court lacked jurisdiction to order a body exhumed in another state; (2) whether petitioner presented sufficient reasons for the court to order an exhumation; and (3) whether the court erred in denying the administrator's request to enjoin petitioner from proceeding in the Commission. We affirm in part and vacate in part.

In 1989, the Department of Public Aid (the Department) brought a paternity action against decedent to determine if he was the father of petitioner's daughter, Chastity. Decedent was defaulted, but the default was later vacated when decedent agreed to a blood test. Apparently decedent did not show up for the test, and the court ordered another blood test. The case was dismissed without prejudice when the Department learned that decedent had died.

In the probate division of the circuit court, the administrator filed an affidavit of heirship stating that her son, Robert Lee Medlen III, was decedent's only child and the sole heir of his estate. On October 31, 1990, the court entered an order declaring Robert Lee Medlen III decedent's sole heir.

On October 13, 1995, petitioner filed in the probate case a petition to have decedent exhumed for DNA testing. Petitioner alleged that decedent was the father of her daughter, Chastity Sarrels, who was born on November 29, 1987. The petition further alleged the following: that petitioner had filed a complaint in the Commission seeking workers' compensation death benefits and that the estate objected to the claim because of the lack of direct proof of Chastity's paternity; that in the paternity action, decedent had twice failed to comply with orders for blood tests and died without ever submitting to those tests; and that the estate knew of the existence of Chastity when the estate was opened but failed to notify her of the opening of the estate or of the benefits decedent's son was awarded under the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1994)).

On October 25, 1995, the administrator filed a petition for injunctive relief, asking the court to enjoin petitioner from proceeding in the Commission. The petition stated that decedent's son had been awarded $325.33 per week by the Commission on December 25, 1990, and that on September 30, 1993, a claim had been filed on behalf of Chastity, claiming that she was also an heir of decedent and entitled to death benefits. The administrator argued that the Commission could not adjudicate the issue of heirship because paternity had not been established during decedent's life.

On November 21, 1995, the administrator filed her response to the petition to exhume. The administrator argued that the court lacked jurisdiction to order the exhumation because an exhumation order is not within the subject matter jurisdiction of the probate court and because the body was not buried in Illinois. The administrator also argued that petitioner had not shown sufficient reasons to have the body exhumed.

On December 11, 1995, petitioner's law firm filed a reply to the response to the petition to exhume and a response to the petition for injunctive relief. However, both were filed in the name of "Intervenor Della Medlen." The record does not indicate who Della Medlen is. The reply to the response to the petition to exhume did not address the jurisdictional issue and merely argued that there were compelling reasons for disinterment. The administrator moved to strike both the reply and the response, arguing that Della Medlen had never filed an appearance and had no standing. The court ordered that the reply to the response to the petition to exhume and the response to the petition for injunctive relief be amended to reflect petitioner's name instead of Della Medlen's. The administrator then filed her reply to the response to the petition for injunctive relief.

On January 12, 1996, the court entered an order denying the petition for injunctive relief and granting the petition to exhume. The court's order contains neither the reasons for its decision nor an explanation of how the court had jurisdiction to order a body exhumed in a sister state. The court agreed to stay the exhumation order pending appeal.

On February 9, 1996, the administrator filed a motion to reconsider, arguing that the court had no jurisdiction to order the exhumation because decedent was buried in Iager, West Virginia. The administrator attached her own affidavit to the motion. In the affidavit, she states that decedent is buried in West Virginia. On February 13, 1996, the court denied the motion. The court's order does not contain reasons for the decision. On the same day, the administrator filed her notice of appeal.

We first consider the court's jurisdiction to order decedent's body exhumed in another state. The arguments presented to this court by both parties are sketchy, confusing, and inadequate to address an issue of first impression. However, the person bringing an action bears the burden of establishing jurisdiction (McKnelly v. Whiteco Hospitality Corp., 131 Ill.App.3d 338, 340, 86 Ill.Dec. 613, 475 N.E.2d 992 (1985)), and we do not believe petitioner has demonstrated any basis by which the circuit court could order a body exhumed when the body is buried in another state. No Illinois case has addressed this question, and the only case we could find from another jurisdiction directly addressing the issue is Resnick v. State, 319 So.2d 167 (Fla.App.1975). Resnick was a criminal appeal in which the defendant argued that it was improper to admit testimony concerning the victim's skull. The court stated the following:

"The skull, with the remainder of the body, had been buried in another state. Therefore, the trial court had no jurisdiction to order the authorities of a sister state to exhume the skull for examination." Resnick, 319 So.2d at 168.

However, the court neither cited authority nor gave reasons for its decision.

At common law, there is no property right in a dead body (22A Am.Jur.2d Dead Bodies § 2 (1988)), and the body forms no part of the decedent's estate (In re Estate of Fischer, 1 Ill.App.2d 528, 535, 117 N.E.2d 855 (1954)). The nearest relatives of the deceased have a quasi-property right in the body; this right arises out of their duty to bury the dead. 22A Am.Jur.2d Dead Bodies § 3 (1988). In Illinois, this right has been construed to give the next of kin the right to determine the time, manner, and place of burial. Fischer, 1 Ill.App.2d at 532, 117 N.E.2d 855; see also Leno v. St. Joseph Hospital, 55 Ill.2d 114, 117, 302 N.E.2d 58 (1973) ("The principle is firmly established that while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent's remains devolves upon the next of kin in order to make appropriate disposition thereof, whether by burial or otherwise"). However, once the body is buried, it becomes "part and parcel of the ground to which it is committed." 25A C.J.S. Dead Bodies § 2 (1966). Upon burial, the body is generally viewed as being in the custody of the law (22A Am.Jur.2d Dead Bodies § 70 (1988)), but the next of kin do have a protectable interest in the body that would allow them to challenge a disinterment (Hough v. Weber, 202 Ill.App.3d 674, 685, 147 Ill.Dec. 857, 560 N.E.2d 5 (1990)).

Initially, the administrator suggests that the court lacked subject matter jurisdiction. The administrator did not develop this argument in her appellate brief, but relied in the circuit court on Fisc...