Stith's Estate, In re

• Decision Date: 24 March 1970
• Docket Number: No. 42081,42081
• Citation: 258 N.E.2d 351,45 Ill.2d 192
• Parties: , 59 A.L.R.3d 762 In re ESTATE of Richard Barnes STITH, Deceased. The UNIVERSITY OF ILLINOIS et al., Appellants, v. Signa Marie STITH, Appellee.
• Court: Illinois Supreme Court

Page 351

258 N.E.2d 351

45 Ill.2d 192, 59 A.L.R.3d 762

In re ESTATE of Richard Barnes STITH, Deceased.

The UNIVERSITY OF ILLINOIS et al., Appellants, v. Signa Marie STITH, Appellee.

No. 42081.

Supreme Court of Illinois.

March 24, 1970.

Rehearing Denied May 26, 1970.

Davis, Morgan & Witherell, Peoria (Donan C. Kirley, Peoria, of counsel), for appellants University of Illinois and University of Nebraska.

Richard H. Radley, Peoria, for appellants University of Southern California and California Institute of Technology.

Arthur B. Copeland, Peoria, for appellant Shriners Hospitals for Crippled Children.

McDermott, Will & Emery, Chicago, Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, Cal., and Heyl, Royster, Voelker & Allen, Peoria (Melvin M. Belli, Robert L. Lieff, San Francisco, Cal., William J. Voelker, Jr., Peoria, and James E. Betke, Hamilton Smith, Chicago, of counsel), for appellee.

UNDERWOOD, Chief Justice.

Signa Marie Stith, the widow of Richard Barnes, Stith, obtained three extensions of time within which to renounce her deceased husband's will. The validity of those extensions was subsequently challenged by certain charities (appellants here) who are the residuary beneficiaries under the will. The circuit court of Marshall County vacated the second and third extensions, the Appellate Court for the Third Judicial District reversed the vacation order (105 Ill.App.2d 429, 244 N.E.2d 834), and we granted leave to appeal.

The controlling statute is section 17 of the Probate Act (Ill.Rev.Stat.1965, ch. 3, par. 17) and the pertinent portions specify the time for renunciation as follows: '* * * (a) within 10 months after the admission of the will to probate or (b) within such further time as may be allowed by the probate court if, within 10 months after the admission of the will to probate or before the expiration of any extended period, the surviving spouse files a verified petition therefor setting forth that litigation is pending that affects the share of the surviving spouse in the estate.'

All three verified petitions for extension alleged the existence of pending litigation in both Illinois and Nebraska affecting the widow's share of the estate. They were filed and allowed in Ex parte proceedings consented to by the executor; the first extension order, entered August 30, 1965, extended the time for filing to February 5, 1966; the second such order was entered February 3, 1966, and extended the time to February 5, 1967; the third, entered January 5, 1967, extended the time until 90 days after termination of a pending will construction suit filed by the testator's son. Vacation of those orders was sought by a petition filed August 28, 1967, which alleged the extensions had been obtained by false and fraudulent allegations as to the pendency of litigation when in fact no litigation in either Illinois or Nebraska was then pending.

It is sufficient for our purposes, without extending this opinion by detailing the facts, to state that some of the allegations as to pending litigation contained in appellee's petitions for extensions were clearly false. It is equally clear, however, that there were undisposed of claims filed in the circuit court of Marshall County against testator's estate in the amount of some $29,000 and an undisposed-of claim in the Nebraska ancillary administration proceedings amounting to some $11,000 at the time the first petition for extension was filed and allowed. At the time the second petition for extension was filed, those claims had been allowed with the executor's consent. The period within which an appeal could be taken from allowance of the Illinois claims had not then expired.

In a comprehensive and well reasoned opinion the trial court held the claims constituted 'pending litigation' within the meaning of the statute. We agree with that determination. The procedure established by the Act for disposition of claims suggests that claims are within the traditional concept of 'litigation', providing as it does for notice, pleadings, trial, and appeal. (Ill.Rev.Stat.1965, ch. 3, pars. 195, 196, 197, 329.) Moreover, the processing of claims is clearly a matter which 'affects the share of the surviving spouse in the estate,' (Ill.Rev.Stat.1965, ch. 3, par. 17) and thus fits squarely within the rationale of section 17, which was designed to provide sufficient time 'to enable (a widow) to determine the condition of the estate and which course would be more advantageous to her.' (Canavan v. McNulty, 328 Ill. 388, 396, 159 N.E. 782, 786; accord, First National Bank of Danville v. McMillan, 12 Ill.2d 61, 66, 145 N.E.2d 60; In re Estate of Donovan, 409 Ill. 195, 202, 98 N.E.2d 757; Stone v. Vandermark, 146 Ill. 312, 34 N.E. 150.) The provision allowing for an extension of the time for renunciation obviously furthers this policy. 'For a number of reasons it may be impossible at the expiration of the ten-month period for the surviving spouse to make an intelligent choice between the provisions of the will and the statutory share granted by section 16. Claims filed at the proper time may still be undisposed of and the construction of language used in the will or a question of the...