Hire v. Hrudicka

• Decision Date: 11 March 1942
• Docket Number: No. 26371.,26371.
• Citation: 379 Ill. 201,40 N.E.2d 63
• Parties: HIRE v. HRUDICKA.
• Court: Illinois Supreme Court

379 Ill. 201

40 N.E.2d 63

HIRE

v.HRUDICKA.

No. 26371.

Supreme Court of Illinois.

Jan. 20, 1942.

As Modified on Denial of Rehearing March 11, 1942.

Proceeding by Bessie L. Hire, conservatrix of Herman R. Hire, an incompetent person, against Robert B. Hrudicka, to compel him to disclose and turn over property in his possession belonging to the ward. From an adverse judgment, Robert B. Hrudicka appealed to the circuit court and during the pendency of the appeal the ward died. From a judgment abating the proceeding the conservatrix appealed to the Appellate Court which affirmed the judgment, 309 Ill.App. 566, 33 N.E.2d 652, and the conservatrix appeals.

Reversed and remanded with directions.Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Henry County; Leonard E. Telleen, Judge.

James H. Andrews, Harper Andrews, and Gregg A. Young, all of Kewanee, for appellant.

John F. Garner, of Quincy, and Roswell B. O'Harra, of Carthage, for appellee.

SHAW, Justice.

On December 24, 1937, Bessie L. Hire was acting as conservatrix of the estate of Herman R. Hire, an incompetent person, having been appointed to that office about a month previously by the county court of Henry county. She alleged that various persons had in their possession certain property and assets of her ward, among them being the mother of the ward and one Robert B. Hrudicka. Hrudicka had been the agent and confidential adviser of said incompetent and had kept, and it is alleged still does keep, certain funds and property of said ward and knows of the whereabouts of other property of the ward. It was alleged that said Hrudicka stands in defiance of the petitioner in the petitioner's attempt to find any property of said Hire. The petition further alleged that certain other persons therein named knew the whereabouts of property of said ward and that one or more of them had some of his assets or property in their possession, or had information or knowledge concerning such property and that each of them refused to divulge such information to the petitioner. The same allegations were made as to Earl E. Hire, a brother of the ward. On this petition a citation appears to have been issued and an order entered finding that Robert B. Hrudicka had converted $8,154.46 belonging to the ward to his own use and has either squandered or secreted the same. It was ordered by the county court that Robert B. Hrudicka should repay the same to the conservatrix and that upon his failing to do so a body attachment should issue, etc.

Hrudicka appealed from this order to the circuit court of Henry county, posting an appeal bond in the sum of $10,000, and the appeal was allowed. When the matter came on for hearing in the circuit court Hrudicka filed a motion to abate the proceeding on the ground that the ward, Herman R. Hire, had died on February 19, 1939; that one Herman R. Hire was the real party in interest and that the conservator had no power to proceed with the suit. The circuit court sustained this motion and ordered the suit to be abated. On further appeal to the Appellate Court for the Second District this judgment was affirmed and the cause is before us on further appeal on leave granted by this court.

A brief review of the facts and the pleadings, as well as statutory changes applicable to the subject matter, is necessary. After the appeal to the circuit court was perfected and on April 18, 1939, Hrudicka filed an answer, in which he admitted he had been agent for Hire in certain matters, denied the conversion of any moneys and questioned the constitutionality of sections 54 and 55 of the act in relation to lunatics, etc., then in force. (Ill.Rev.Stat.1939, chap. 86, pars. 55, 56.) Thereafter, on September 21, 1939, after the new Probate Act had been enacted (Ill.Rev.Stat.1941, chap. 3, pars. 151 to 501, inc.) Hrudicka filed a motion to abate in the circuit court alleging that the incompetent ward, Herman R. Hire, had died on February 19, 1939. In his affidavit attached to the motion in abatement Hrudicka says ‘that he was advised within the past few days' of the death of the ward and that he had not known of such death until within ten days prior to the filing of the motion. This motion was set for hearing and argument and continued from time to time until February 28, 1940, when the circuit judge sustained the motion.

As noted above, during the pendency of these proceedings, what is referred to as the new Probate Act approved July 24, 1939, went into effect on January 1, 1940. The title of this act is ‘An Act to revise, consolidate, clarify and codify the probate laws, including the law in relation to descent and distribution, dower, wills, administration, guardianships, and conservatorships.’By section 500 of this act, all acts regarding these subjects were repealed and the only saving clause is section 501, which reads as follows: ‘The provisions for repeal contained in this Act shall not in any way: (1) Affect an offense committed, an act done, a penalty, punishment, or forfeiture incurred, or a claim, right, power, or remedy accrued under any law in force prior to the effective date of this Act; (2) Invalidate any of the following that have been validated by any former law: any act done by an executor, administrator, guardian, or conservator; any order, judgment, or decree entered by a court; the recordation of any will.’

The Appellate Court assumed, in its opinion, that this case must be decided on the law as it was prior to the new Probate Act. We cannot concur in this assumption. The proceedings before us should not have been abated, even under the old act, because that act, under section 9 of chapter 86 of the Revised Statutes of 1939, provided that on death of the ward the conservator had full power to make final settlement and distribution of the estate of the deceased, without further letters of...