Estate of Willis, In re

• Decision Date: 24 May 1991
• Docket Number: No. 1-89-2536,1-89-2536
• Citation: 214 Ill.App.3d 683,158 Ill.Dec. 378,574 N.E.2d 172
• Parties: , 158 Ill.Dec. 378 In re ESTATE OF Charles Everett WILLIS, deceased (Bertha L. Willis, Appellant, v. Linda Rowser, et al., Petitioners-Appellees).
• Court: United States Appellate Court of Illinois

Page 172

574 N.E.2d 172

214 Ill.App.3d 683, 158 Ill.Dec. 378

In re ESTATE OF Charles Everett WILLIS, deceased (Bertha L. Willis, Appellant, v. Linda Rowser, et al Petitioners-Appellees).

No. 1-89-2536.

Appellate Court of Illinois First District, Sixth Division.

May 24, 1991.

P. Scott Neville, Jr., Chicago, for widow-appellant.

Henry E. Szachowicz, Jr., Morton Grove, for petitioners-appellees, Linda Rowser and Lisa Brown.

Levin & Rosen, Ltd., Skokie (Earl Weiss, of counsel), for petitioner-appellee, Lanna Harris.

Justice LaPORTA delivered the opinion of the court:

In a probate proceeding of a decedent's estate in which the widow on April 26, 1985, was declared to be the sole heir, petitions were filed on August 6, 1985, and on April 14, 1987, by three adults, Lanna Harris, Linda Rowser and Lisa Brown, who purported to be children of the decedent. They sought amendment of the order of heirship to declare them to be the children and heirs of the decedent. On May 17, 1989, following an evidentiary hearing, the trial court amended the order of heirship to declare the widow and three adult daughters as decedent's lawful heirs. The widow's motion for rehearing was denied and she appealed.

On appeal, the widow contends initially that the trial court had no subject matter jurisdiction to amend the order declaring heirship because both the parentage hearing to identify who was the father to the three women, and entry of the subsequent order, occurred after the statute of limitations had expired for a paternity action.

The widow also contends the amended order declaring heirship is void because evidence of Lanna Harris' illegitimacy was testified to by her mother and Illinois courts prohibit mothers from illegitimizing their children. Finally, the widow contends the amended order declaring heirship is void because Otis Harris, Lanna Harris' presumed father, was not served with a summons as required by section 2509.1(a) of the Illinois Parentage Act.

The facts of the case are not in dispute. Charles Everett Willis died on April 16, 1985. On April 25 his widow, Bertha Willis, filed a petition for letters of administration and an affidavit of heirship in the probate court. Based on her testimony at the hearing on proof of heirship, the probate court declared Bertha Willis the only heir, appointed her administrator of his estate and issued letters of office to her.

On August 6, 1985, Lanna Harris filed a petition alleging that she was the acknowledged child of Charles Willis and that she should have properly been listed as an heir to his estate. She asked the court to amend its order and declare her an heir. Bertha Willis filed an answer denying Lanna Harris' heirship and then filed both a motion for summary judgment and a motion to dismiss Harris' petition based on statute of limitations grounds. The trial court denied both motions and on March 10, 1987 denied a subsequent motion to reconsider. Harris' petition was subsequently heard on March 28, 1989.

On April 14, 1987, two sisters, Linda Rowser and Lisa Brown, filed a petition alleging they were Charles Willis' acknowledged children. They asked the court to grant them leave to file an amended affidavit of heirship to establish them as Willis' heirs. The trial court denied Bertha Willis' motion to dismiss the petition.

On March 28, 1989 and five days subsequent, the trial court heard testimony and arguments on the petitions of the three women. The parties stipulated that Linda Rowser was the child involved in a support and annulment proceeding in 1957 between Charles Willis and Elsa Scott, Linda Rowser's mother.

On May 12, 1989 the trial court granted the two petitions and on May 17 amended the order declaring heirship to include not only Bertha Willis but also Lanna Harris, Linda Rowser and Lisa Brown.

Bertha Willis appealed, contending initially that the trial court erred by not determining the three women's parentage under the Illinois Parentage Act of 1984 before applying the Probate Act of 1975 to determine heirship. Willis contends that if the court had done so, it would have determined that the three women failed to file their parentage claims within two years of reaching the age of majority as required by the Parentage Act.

Willis cites two cases for the proposition that parentage must be determined before heirship. (In re Person and Estate of Newsome (1988), 173 Ill.App.3d 376, 382, 123 Ill.Dec. 61, 527 N.E.2d 524, LeHew v. Mellyn (1985), 131 Ill.App.3d 314, 316, 86 Ill.Dec. 534, 475 N.E.2d 913. In Person, the court, citing LeHew, held that in child custody proceedings, where the identity of the natural father has not been determined, and one claiming to be the father is before the court, the court's first duty is to address the issue of paternity. (Person, 173 Ill.App.3d at 382, 123 Ill.Dec. 61, 527 N.E.2d 524.) In LeHew, the trial court was asked to decide visitation and parentage of a minor child. On appeal, the court found the trial court improperly dismissed petitioner's motion for determination of parentage and held that the identity of the child's natural father should be determined at the outset of such a proceeding. LeHew, 131 Ill.App.3d at 316, 86 Ill.Dec. 534, 475 N.E.2d 913.

Willis contends that since the 2-year statute of limitations in the Paternity Act was declared unconstitutional in Jude v. Morrissey (1983), 117 Ill.App.3d 782, 73 Ill.Dec. 280, 454 N.E.2d 24, the trial court should have applied the statute of limitations in the Code of Civil Procedure to require the three women to file suit as a declaratory judgment action within two years after they reached the age of 18. (Ill.Rev.Stat.1983, ch. 110, par. 13-211.) All three women were in their 30s when they filed their petitions here. Bertha Willis argues that since the three women failed to file within the statute of limitations period, the trial court lost subject matter jurisdiction over their parentage action and therefore was barred from declaring the three women heirs to Charles Willis.

Bertha Willis argues that this 2-year statute of limitations would apply even if this court were to follow the current law in the Illinois Parentage Act of 1984 because both petitions were filed with the probate court after the Illinois Parentage Act of 1984 went into effect. The Illinois Parentage Act of 1984 states that: "An action brought by or on behalf of a child shall be barred if brought later than 2 years after the child reaches the age of majority * * *." Ill.Rev.Stat.1989, ch. 40. par. 2508(a).

Bertha Willis contends that to permit the three women to file claims though all three are past their 20th birthday would only serve to encourage fraudulent and stale claims. The purpose of a statute of limitations is to require the prosecution of a right of action within a reasonable time period to prevent the loss or impairment of available evidence and to discourage delay in the bringing of claims. Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129, 334 N.E.2d 160.

Bertha Willis argues that it is also unfair to the estate and its administrator to have to defend a paternity action after the putative father Charles Willis has died. Bertha Willis cites Toms v. Lohrentz (1962), 37 Ill.App.2d 414, 418, 185 N.E.2d 708, which held that a paternity act cannot be brought against a dead man, "nor can liability in any event be imposed under the statute on his estate in the absence of an adjudication of paternity during the lifetime of the father." Bertha Willis cites Reed v. Campbell (1986), 476 U.S. 852, 855, 106 S.Ct. 2234, 90 L Ed.2d 858, which held that the state's interest in the orderly disposition of an estate may justify imposing special requirements on an illegitimate child who asserts a right to inherit and that such a circumstance justifies the enforcement of generally applicable limitations on the time and the manner in which claims may be asserted.

Petitioners distinguish Person and LeHew, stating that Person involved custody of a minor and LeHew involved a father seeking parental rights over a child. This case involves heirship. Petitioners contend it is the Probate Act of 1975 which governs this case, not the Illinois Parentage Act of 1984. They argue that therefore the statute of limitations in the parentage act is inapplicable.

Petitioners contend the Illinois Parentage Act of 1984 specifically addresses this potential conflict by exempting an heirship claim when it states: "This Act does not affect the time within which any rights under the Probate Act of 1975 * * * may be asserted beyond the time provided by law relating to distribution and closing of decedent's estates or to the determination of heirship, or otherwise." Ill.Rev.Stat.1985, ch. 40, par. 2508(c).

The Probate Act of 1975 states that: "If a decedent has acknowledged paternity of an illegitimate person or if during his lifetime or after his death a decedent has been adjudicated to be the father of an illegitimate person, that person is heir of his father * * * If during his lifetime the decedent was adjudged to be the father of an illegitimate person by a court of competent jurisdiction, an authenticated copy of the judgement is sufficient proof of paternity; but in other all other cases paternity must be proven by clear and convincing evidence." Ill.Rev.Stat.1989, ch. 110 1/2, par. 2-2.

Petitioners cite Cody v. Johnson (1980), 92 Ill.App.3d 208, 47 Ill.Dec. 818, 415 N.E.2d 1131, where the court considered whether Clifford Cody was proved by clear and convincing evidence to be the son of the deceased and whether the Probate Act of 1975, which permits adjudication of paternity of an illegitimate after the death of a father, denies equal protection or due process of law to collateral heirs. (Cody, 92 Ill.App.3d at 209, 47 Ill.Dec. 818, 415 N.E.2d 1131.) The Cody court affirmed the trial court's rulings in favor of the petitioner on both grounds, holding...