Knazek's Estate, In re

• Decision Date: 11 January 1954
• Docket Number: Gen. No. 46131
• Citation: 1 Ill.App.2d 387,117 N.E.2d 683
• Parties: In re KNAZEK'S ESTATE. SLIFKA v. PATRAS et al.
• Court: United States Appellate Court of Illinois

Page 683

117 N.E.2d 683

1 Ill.App.2d 387

In re KNAZEK'S ESTATE SLIFKA v. PATRAS et al.

Gen. No. 46131.

Appellate Court of Illinois, First District, First Division.

Jan. 11, 1954.

Robert F. Jerrick, Chicago (Leonard J. Braver, Chicago, of counsel), for appellant.

Raymond H. Groble, Jr., Chicago, for appellee Mary C. Patras.

Ross S. Welch and Robert S. Diehl, Jr., Chicago, for Slovak American Charitable Assn BURKE, Justice.

Stefan Knazek died at Chicago on October 31, 1951. On November 7, 1951, a will of decedent dated October 4, 1948, was filed in the Probate Court of Cook County. George C. Slifka is named as a residuary legatee under that will. On November 21, 1951, another will of decedent dated February 21, 1950, was filed in that court. This will designated Mary C. Patras as excutrix and left decedent's estate to the Slovak American Charitable Association, hereinafter for convenience called the association. On November 29, 1951, the executrix filed her petition to admit the later will to probate. Upon a hearing on the petition on January 14, 1952, in which proceeding George C. Slifka participated, through his attorney, the Probate Court ordered the instrument admitted. On January 17, 1952, letters testamentary were issued to the executrix.

On January 16, 1952, George C. Slifka caused his appeal bond to the Circuit Court to be approved in open court by the probate judge and on the same day filed the appeal bond in the Probate Court. In due time he filed a transcript of the proceedings in the Circuit Court. Slifka did not give any notice to the executrix, the legatee or other persons, of his application for approval of his appeal bond, of the filing thereof or of the filing of the transcript of the proceedings in the Circuit Court. On September 24, 1952, on motion of the attorney for Slifka, the Circuit Court entered an ex parte decree that the order of the Probate Court admitting the later will to probate be 'vacated, set aside and held for naught.' On October 28, 1952, the executrix filed her motion to vacate the ex parte order of September 24, 1952.

On November 18, 1952, the association also moved to vacate the order of September 24, 1952, and for trial on the merits. The affidavit of the attorney for the executrix in support of the motion states that neither he nor his client was given notice of the application for approval of the appeal bond; that he and his client first learned of the appeal and the order of September 24, 1952, upon 'checking the records' on October 27, 1952; that the lack of notice and knowledge of the appeal was not due to any negligence on the part of affiant or his client; that neither Slifka 'nor anyone' sought to have the Probate Court admit or deny to probate decedent's will dated October 4, 1948, in which Slifka is named as a residuary legatee; and that the court 'possessed no jurisdiction over the appeal.' A vertified petition by the attorneys for the association states that no notice was given to it or to the executrix or their attorneys, as required by Rules 58 and 60 of the Rules of Practice of the Probate Court, of the application for the approval or the filing of the appeal bond; that Slifka is not entitled to appeal because he 'has no direct interest in the will admitted to probate'; that the order of September 24, 1952, is void because the court lacked jurisdiction to grant a trial de novo; and that the decree vacating and holding for naught the order admitting the will to probate is a nullity. The petition asked that the order of September 24, 1952, be vacated; that the cause be set for trial 'of the issue raised by this appeal'; and that 'an actual trial de novo, as required by statute, occur.' It does not appear how the attorneys for the executrix and the association were able to make affidavits as to the lack of notice to their clients without basing it wholly on hearsay.

On January 15, 1953, the court vacated the order of September 24, 1952, and ordered that there be a 'hearing on the merits of the appeal.' On February 24, 1953, the court entered an order reciting that the cause came on to be heard on proponent's motion to dismiss the appeal 'as contained in the verified petition' of the association on the grounds that the contestant does not have 'an appealable interest' and having examined the certified copy of the record and the verified petition of the association, found that the contestant's 'only interest' is under a prior will of the deceased under which he is a residuary beneficiary, the prior will not having been admitted to probate, and that the contestant has 'no appealable interest' under the later will. The court ordered that the appeal be dismissed and that the cause be remanded to the Probate Court with directions to admit to probate the will dated February 21, 1950. Slifka appeals.

The parties are in agreement that the order of September 24, 1952, setting aside and holding for naught the admission of the later will to probate, is ineffective and irregular. It was not a trial de novo and the order, if transmitted to the Probate Court, would leave the parties where they were when the later will was first filed. The Circuit Court does not acquire jurisdiction itself to admit a will to probate. It has only power to remand the case to the Probate Court with directions. This is true even though the will was duly admitted to probate by the court below and letters testamentary were issued and on appeal the Circuit Court comes to the same conclusion. In this situation the Circuit Court may not admit the will to probate. It should remand the cause to the Probate Court with directions to admit it to probate. See Brooking v. Brooking, 391 Ill. 440, 63 N.E.2d 476; James Illinois Probate Law and Practice, § 333.11, Vol. 5.

Appellant points out that the motion to vacate the order of September 24, 1952, was made more than 30 days after entry and that no sufficient showing has been made under Section 72 of the Civil Practice Act. Ill.Rev.Stat. 1953, c. 110, § 196. The executrix and the association say that they made a sufficient showing to authorize the court to vacate the order of September 24, 1952. The record is silent as to whether appellant opposed the motion to set aside the order of September 24, 1952. He did not appeal from that order. A proceeding by motion in the nature of a writ of error coram nobis under Section 72 of the Civil Practice Act is a new action and the order disposing of such a motion is final and appealable. See People v. Union Trust Bank, 406 Ill. 208, 92 N.E.2d 663; Jerome v. 5019-21 Quincy Street Building Corporation, 385 Ill. 524, 53 N.E.2d 444, Appellant is not in a position to complain of the order entered January 15, 1953, (vacating the order of September 24, 1952) setting the cause for a hearing on the merits. It is therefore unnecessary for us to pass on the appellant's contention that no notice of the application for approval of the appeal bond in the Probate Court was necessary.

Appellees maintain that one appealing an order of the Probate Court admitting a will to probate must possess a direct interest in the will; that he must be named in the will or be an heir or next of kin; and that Slifka, as a beneficiary under a prior will, not an heir or next of kin, does not possess an appealable interest from the order of the Probate Court admitting to probate a later will in which he is not named, citing In re Estate of Hills, 305 Ill.App. 193, 27 N.E.2d 324. Section 330 of the Probate Act, Ill.Rev.Stat. 1953, c. 3, § 484, provides for an appeal by any person who considers himself 'aggrieved' to the Circuit Court by the filing in and the approval by the Probate Court of an appeal bond and the payment of the costs and fees of the appeal. On an appeal from an order refusing to admit a will to probate, the bond shall be for costs only. In the instant case the bond is for $250, conditioned that the appeal shall be prosecuted and the costs paid. The penalty should not have been limited to $250. The error is harmless, however, as that amount is more than sufficient to cover the costs. We are of the opinion that the Hills case is not applicable to the instant case. That case was decided under a statute which limited appeals from orders admitting or denying admission of a will to persons interested in the will. In that case Voliva, the appealing party and beneficiary under the former will, filed a contest of the later will,...