Estate of Nicholson, In re
| Decision Date | 09 December 1994 |
| Docket Number | 1-93-4198,Nos. 1-92-3159,s. 1-92-3159 |
| Citation | 205 Ill.Dec. 831,644 N.E.2d 47,268 Ill.App.3d 689 |
| Parties | , 205 Ill.Dec. 831 In re ESTATE OF John N. NICHOLSON, M.D., Deceased (Michael Nicholson, Petitioner and Plaintiff-Appellant, v. The Northern Trust Company, Ex'r, Respondent and Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Corner, Finn, Nicholson & Charles, Brooklyn, NY, for appellant (Michael Nicholson, of counsel).
Sidley & Austin, Chicago, for appellee (James J. Carroll and Gerard D. Kelly, of counsel).
Michael Nicholson (plaintiff), son and sole heir to decedent Dr. John N. Nicholson, sued The Northern Trust Company (Northern), which served as executor under Dr. Nicholson's will and as successor trustee under Dr. Nicholson's declaration of trust. Plaintiff pled eight counts alleging that the will and the trust were invalid. Northern filed a motion to dismiss on the pleadings, which was granted as to all counts except that plaintiff was given leave to replead one of the counts. Plaintiff filed appeal No. 1-92-3159 as to the granting of the motion on the other seven counts, which Northern has moved to dismiss as premature. Plaintiff's amended repleading of the last count was also dismissed, upon which plaintiff filed appeal No. 1-93-4198 appealing that order. Those two appeals, as well as Northern's motion to dismiss appeal No. 1-92-3159, have been consolidated into this proceeding.
We affirm.
Between 1982 and 1990, decedent executed his declaration of trust and 12 separate amendments thereto, establishing an inter vivos trust. The trust contains the vast majority of decedent's assets and distributes them to various charitable organizations upon his death. Decedent died on July 24, 1990. On February 25, 1991, decedent's last will and testament, dated November 12, 1989, and first codicil thereto, dated April 6, 1990, were admitted to probate. Under the will and codicil, decedent gave his entire probate estate to Northern as successor trustee under the terms of his trust. Decedent expressly made "no provision for my nephew, MICHAEL KEFALIDES NICHOLSON, whom I adopted as my son, or any other of my relatives." Decedent further stated, "It is my intent to distribute my assets to charitable, religious and educational institutions."
On August 23, 1991, plaintiff filed a petition to contest admission of will to probate and a separate complaint to set aside declaration of trust. On November 14, 1991, by agreement of plaintiff and Northern, plaintiff filed a combined complaint--the first amended petition--challenging the validity of both decedent's trust and his will. Counts I, II, and VIII alleged technical deficiencies which rendered the trust void; count III alleged undue influence in the creation of the trust; count IV alleged that decedent lacked the mental capacity to make the trust; count V alleged decedent lacked testamentary capacity; count VI alleged technical deficiencies rendering the will void; and count VII alleged undue influence over the creation of the will. The trial court allowed the parties to proceed with discovery on April 10, 1992.
Northern had filed a section 2-615 (735 ILCS 5/2-615 (West 1992)) motion to dismiss the petition on January 15, 1992, and on August 20, 1992, the trial court dismissed with prejudice all of the alleged counts in plaintiff's first amended complaint except for count V, which was dismissed with leave to replead. Plaintiff appealed this ruling in appeal No. 1-92-3159 as to the granting of the motion on the other seven counts. Northern has moved to dismiss this appeal as premature.
On November 2, 1993, the trial court also dismissed with prejudice count V, which as amended constituted plaintiff's second amended petition. This was a final judgment and order, from which appeal No. 1-93-4198 has been taken.
OPINIONThe first issue is whether to allow the appeal of the dismissal of the first seven counts, either through the first appeal, appeal No. 1-92-3159, or through the second appeal relating back to the seven originally dismissed counts as well. The latter approach is sufficient to give this court jurisdiction.
As to the former issue, appeal No. 1-92-3159 is premature when analyzed in isolation. Plaintiff contends that jurisdiction is proper under either Supreme Court Rule 301 or Supreme Court Rule 304(b)(1). (134 Ill.2d Rules 301, 304(b)(1).) Rule 301 allows appeal of a "final" judgment, and plaintiff contends that the August 20 order was final as to his trust claims, relying on In re Estate of Wrigley (1982), 104 Ill.App.3d 1008, 60 Ill.Dec. 757, 433 N.E.2d 995. However, Wrigley is inapposite to this matter, as the trust count in Wrigley was severed from the count involving the will because they had no relationship: (Wrigley, 104 Ill.App.3d at 1015, 60 Ill.Dec. 757, 433 N.E.2d 995.) As appellant himself has stated that all the issues involved in the will counts and the trust counts are interdependent, Wrigley is inapplicable to the instant case.
Plaintiff also cannot rely on Supreme Court Rule 304(b)(1). Rule 304(b)(1) states:
However, this rule does not apply to the counts involving the trust because this trust is not a "similar proceeding" involving comprehensive court administration of an estate. The trust is being administered privately, out of court, without any court involvement such as court-approved administrators or a requirement of a final accounting to the court. Accordingly, counts I, II, III, IV and VIII were not proceedings similar to the administration of an estate, and Rule 304(b)(1) is inapplicable to those counts. (Yardley v. Yardley (1985), 137 Ill.App.3d 747, 751, 92 Ill.Dec. 142, 484 N.E.2d 873.) As to counts VI and VII involving the will, they were not appealable under Rule 304(b)(1) because count V involving the will was still pending. Not every order entered in an estate proceeding may be immediately appealed. For appellate jurisdiction, the order must finally determine the right or status of a party. (In re Estate of Vogt (1993), 249 Ill.App.3d 282, 285, 188 Ill.Dec. 571, 618 N.E.2d 1141.) Because dismissal of these counts did not finally establish plaintiff's status in regard to the administration of decedent's estate, the appeal under Rule 304(b)(1) was premature and cannot be sustained. Wrigley, 104 Ill.App.3d at 1016, 60 Ill.Dec. 757, 433 N.E.2d 995.
However, the appeal of the second amended petition sufficiently relates back to the seven originally dismissed counts to bring the seven dismissed counts under the jurisdiction of this court. A notice of appeal is to be liberally construed. (Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 433, 31 Ill.Dec. 178, 394 N.E.2d 380.) "Unless the appellee is prejudiced thereby, the absence of strict technical compliance with the form of the notice is not fatal, and where the deficiency in the notice is one of form only, and not substance, the appellate court is not deprived of jurisdiction." Burtell, 76 Ill.2d at 434, 31 Ill.Dec. 178, 394 N.E.2d 380.
The appeal from a final judgment draws in question all prior nonfinal orders which produced the judgment. (Burtell, 76 Ill.2d at 433, 31 Ill.Dec. 178, 394 N.E.2d 380.) The unspecified judgment is reviewable if it is a step in the procedural progression leading to the judgment specified in the notice of appeal. (Burtell, 76 Ill.2d at 434, 31 Ill.Dec. 178, 394 N.E.2d 380.) An order dismissing a count without prejudice is a step in the procedural progression leading to its dismissal with prejudice, as Burtell cites with approval Vigil v. United States (1970), 430 F.2d 1357, a case closely analogous to the instant case.
Moreover, the relief sought in the notice of appeal requests that plaintiff be allowed to replead the seven original counts. In addition, no prejudice would result from allowing jurisdiction as these counts have been fully briefed on this appeal. "[A] notice of appeal will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal." (Burtell, 76 Ill.2d at 433-34, 31 Ill.Dec. 178, 394 N.E.2d 380.) These requirements are satisfied in the instant case.
The cases cited by Northern Trust are inapposite, as they deal with appeals from summary judgment orders attempting to take in matters dealing with other previously dismissed counts. As opposed to the instant case, there is much less of a procedural connection between a summary judgment reached on individual counts and other counts previously dismissed or orders previously ruled on. Thus the notice of appeal as to the second amended petition was sufficient to grant us jurisdiction as to all previously dismissed counts of the first amended petition, and we will decide both consolidated appeals on their merits.
In his brief for appeal No. 1-92-3159, plaintiff only requests the opportunity to replead his counts and does not contend that the trial court's decision to grant the motion to dismiss was improper. Thus, plaintiff has waived any contention that the motion was improvidently granted, due to Supreme Court Rule 341(e)(7), which states in pertinent part: "Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." (134 Ill.2d...
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