Harvey v. Harris Trust and Sav. Bank

• Decision Date: 04 June 1979
• Docket Number: No. 78-322,78-322
• Citation: 391 N.E.2d 461,29 Ill.Dec. 198,73 Ill.App.3d 280
• Parties: , 29 Ill.Dec. 198 Betty Sander HARVEY (a/k/a Davis), Douglas Alan Davis and William Porter Davis, Plaintiffs-Appellants, v. HARRIS TRUST AND SAVINGS BANK, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 461

391 N.E.2d 461

73 Ill.App.3d 280, 29 Ill.Dec. 198

Betty Sander HARVEY (a/k/a Davis), Douglas Alan Davis and William Porter Davis, Plaintiffs-Appellants, v. HARRIS TRUST AND SAVINGS BANK, Defendant-Appellee.

No. 78-322.

Appellate Court of Illinois, First District, First Division.

June 4, 1979.

Rehearing Denied July 9, 1979.

Drobny, Goode, Douglas & Brewer, Chicago (Donald R. Brewer, Chicago, of counsel), for plaintiffs-appellants.

Abbey Blattberg, Randall L. Mitchell, Chapman & Cutler, Chicago, for defendant-appellee.

CAMPBELL, Justice.

This is an appeal taken by the plaintiff from orders of the circuit court of Cook County granting the defendant's motion to strike and dismiss the complaint and denying the plaintiff's motions for leave to file an amended complaint and to vacate the dismissal. The issues presented for review are: (1) whether the trial court abused its discretion in denying the plaintiff's motions; and (2) whether there was sufficient proof of fraudulent concealment of a cause of action by the defendant to serve to avoid the applicable five-year statute of limitations. We affirm.

The factual background giving rise to this action is as follows:

Ernest J. Sander (decedent), died testate on January 16, 1970, survived by Emma Sander, his second wife, and two daughters, Marjorie Sander and Betty Sander Harvey, the plaintiff herein. He was also survived by his divorced first wife, Mae Sander, the mother of his two daughters. At the time of his death Ernest J. Sander and his second wife, Emma, resided in Walkerton (Starke County), Indiana.

The decedent's will, which was dated December 27, 1955, nominated Chicago National Bank as the executor and trustee. This bank merged with Harris Trust and Savings Bank, the defendant herein. The record indicated that on February 19, 1970, the decedent's safe deposit box at Mid-City National Bank of Chicago was opened. The contents of the box, which consisted of the decedent's assets as well as the aforementioned will, were turned over to the defendant as the nominated executor. The will was filed in the probate division of the circuit court of Cook County and, thereafter, transferred to Starke County, Indiana.

The record shows that on April 30, 1970, a conference was held in the defendant's offices with the decedent's widow, two daughters and their attorneys in attendance. At this conference the defendant stated that it would not accept the appointment under the will as the executor and trustee because of the failure of the decedent's family to cooperate with each other, the nature of the assets and the potential claims and liabilities that might arise as a result of such appointment.

On May 4, 1970, Marjorie and Mae Sander opened probate proceedings by filing a petition for letters of administration to collect in the probate division of the circuit court of Cook County. Mae Sander, the decedent's first wife, was appointed administrator to collect in this proceeding. She filed a motion to order the defendant to turn over the decedent's Illinois assets.

On July 13, 1970, the court ordered that this motion be continued pending the appointment of an administrator with the will annexed as requested in a petition filed by Emma Sander in a second Illinois probate proceeding. ¹ In her petition Emma Sander nominated herself as administrator with the will annexed. On July 17, 1970, Betty and Marjorie Sander filed a cross-petition for letters of administration with the will annexed in which they nominated Betty for the appointment and stated under oath that the defendant refused to accept the nomination as executor.

Meanwhile, on June 5, 1970, another probate proceeding was instituted in the circuit court of Starke County, Indiana. Letters of administration were issued to Emma Sander and Betty Sander Harvey as co-administrators of the decedent's estate. The record shows that on May 6, 1970 the defendant filed a renunciation of its appointment as executor in the circuit court of Starke County, Indiana. Subsequently, on July 13, 1970, the defendant filed a renunciation of its appointment as executor in the circuit court of Cook County.

On September 9, 1970, Emma Sander, by an order of the circuit court of Cook County, was appointed administrator with the will annexed in the second Illinois probate proceeding. The court then heard the motion raised by Mae Sander in the first Illinois probate proceeding to order the defendant to turn over the decedent's Illinois assets. This motion was denied. On September 23, 1970, Emma Sander presented the defendant with a certified copy of the order appointing her administrator with the will annexed. The defendant then proceeded to deliver the assets of the estate which had come into its possession as the nominated executor to Emma Sander who in turn presented the defendant with a receipt. Thereafter, the defendant had no further involvement with the decedent's assets or his estate.

In closing the first Illinois probate proceedings in conjunction with her status as administrator to collect, Mae Sander filed on December 4, 1970 a petition in lieu of a final accounting. In filing an answer on December 8, 1970, Emma Sander, as administrator with the will annexed in the second Illinois probate proceeding, stated that she and the defendant, as the nominated executor, had diligently collected and preserved the assets belonging to the decedent in Illinois, Iowa and Indiana and, therefore, no further action would be necessary to collect said assets.

On May 18, 1971, Betty Sander Harvey and Marjorie Sander filed a petition for removal and to surcharge Emma Sander as administrator with the will annexed. In this petition they again stated that the defendant had refused to accept the nomination as executor and also raised various issues charging loss, damage and waste in connection with the assets of the decedent's estate. They further alleged that counsel for Emma Sander had harassed and threatened them thereby causing a substantial delay in the opening up of the administration of the estate in Illinois. They contended that counsel for Emma Sander had intimidated and threatened the defendant to such an extent that it refused to accept the appointment as the decedent's executor. On July 2, 1971, they filed an amended petition for removal and to surcharge Emma Sander in which they again stated that the defendant had declined to accept the appointment as executor. The court held in favor of Emma Sander and denied the petition.

On October 22, 1970, Emma Sander, as the decedent's widow, renounced the decedent's December 27, 1955 will. The assets of the decedent's estate were sold and the proceeds distributed in accordance with the renunciation of the will. Emma, as the widow, and Betty and Marjorie, as the decedent's daughters, were each to receive one-third of the estate. Pursuant to a May 27, 1971 order in the second Illinois probate proceeding the first partial distribution of the proceeds was made with the delivery to the above mentioned individuals of checks dated June 1, 1971, in the amount of $20,000 each. The record fails to indicate when the estate of Ernest J. Sander was actually closed.

On November 12, 1976 Betty Sander Harvey filed the present action in the form of a pro se complaint on behalf of herself and her two sons, Douglas Alan Davis and William Porter Davis, grandsons of the decedent against the defendant, Harris Trust and Savings Bank. ² Betty Sander Harvey, as the sole plaintiff, alleged in her complaint that the defendant had accepted the appointment under the decedent's will as executor and trustee. She further alleged that the defendant had breached the testamentary trust of the decedent when it filed a renunciation of its appointment. The plaintiff sought $750,000 in damages as a result of this alleged breach.

On December 16, 1976, the defendant filed a motion to strike and dismiss the complaint. It alleged that the plaintiff's claims had already been adjudicated in the circuit court of Cook County in a prior action filed by the plaintiff against the defendant bank; that the claim asserted against the defendant is barred by the determination of the issues or the opportunity to have such issues determined in the two aforementioned Illinois probate proceedings; that the claim is barred by the statute of limitations; that the defendant properly took possession of the decedent's assets and delivered them to the personal representative of the estate; and that the plaintiff did not state a cause of action against the defendant. The defendant included affidavits and exhibits in support of said motion. Included was the affidavit of Mr. Abbey Blattberg, an attorney for the defendant, as well as the affidavit of Mr. Daniel Engstrom, a vice-president of the defendant bank. The plaintiff did not file any counter-affidavits.

The plaintiff subsequently retained legal counsel and on February 24, 1977 her attorney filed an appearance and made a jury demand. On June 22, 1977 the defendant's motion to dismiss the complaint with prejudice was sustained by the trial court. In issuing said order the court held that the defendant never accepted the nomination as executor or trustee under the will of Ernest J. Sander and stated further that the defendant properly took possession of the decedent's assets and preserved them until they were turned over to Emma Sander as administrator with the will annexed. The court also found that the allegations in the complaint were insufficient to sustain a cause of action and that pursuant to Section 15 of the Limitations Act (Ill.Rev.Stat.1975, ch. 83, sec. 16), the plaintiff's action was time barred.

The plaintiff's counsel filed a motion, on July 18, 1977, to vacate the June 22, 1977 order alleging fraudulent concealment of a cause of action by the defendant. A motion for leave to file an amended complaint was also filed by the plaintiff's attorney at that time. The defendant...