FIRST DIVISION
September 29, 2008
No. 1-08-0138
PATRICIA POLLY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
THE ESTATE OF LEE POLLY, Deceased, )
)
Defendant-Appellee, )
)
and )
)
JANICE K. WALKER-TAYLOR, ) Honorable
) Allen S. Goldberg,
Defendant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Patricia Polly sued the estate of her husband, Lee Polly,
for breach of contract and for an accounting. The trial court
granted the estate's motion to dismiss as untimely the counts
directed against the estate. Patricia contends that the
limitations period does not apply because she claimed rights
given her by the will, not as a creditor of Lee's estate. In the
alternative Patricia contends that either the will or a letter
her attorneys sent to the estate meets the statutory requirement
for a timely filed claim. We affirm the dismissal of the claims
against the estate.
BACKGROUND
On May 15, 1982, Patricia Borden and Lee Polly signed a Pre-
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Nuptial Agreement that provided, "as long as the parties are
living together as husband and wife, any earnings of LEE shall be
treated as joint funds." Nuptials followed. Lee later opened an
account in joint tenancy with his daughter from a previous
marriage, Janice Walker.
Lee died on June 4, 2003. His will named Patricia and
Janice as his heirs, and it directed the executor to comply with
the Pre-Nuptial Agreement. The executor filed the will in
probate court on June 9, 2003.
On May 17, 2005, Patricia's attorney, in a letter to the
attorney for the estate, said:
"Patricia Polly has a claim against the Estate equal to
100 percent of the earnings of Lee Polly from the date
of the marriage. As you are surely aware, the
Premarital Agreement called for all of the earnings of
Lee Polly after the date of the marriage, to be deemed
joint property. Upon Mr. Polly's death, those
earnings, wherever situated, became the property of
Patricia Polly. *** Accordingly, in the event this
matter is not resolved, Ms. Polly has instructed me to
pursue the claim against the Estate and the individual
holders of any property previously belonging to Mr.
Polly."
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Patricia filed her complaint against the estate and Janice
on November 2, 2005. After amendment, the complaint included two
counts against Janice, one count against the estate for breach of
contract, and one count against both Janice and the estate for an
accounting. The estate moved to dismiss both counts against it
based on the statute of limitations. See 735 ILCS 5/2-619(5)
(West 2002). The court granted the motion and expressly found,
at Patricia's request, no just reason to delay enforcement or
appeal of the order dismissing both counts against the estate.
Patricia now appeals.
DECISION
Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) gives us
jurisdiction to consider the appeal. We review de novo the
dismissal based on the statute of limitations. Raintree Homes,
Inc. v. Village of Long Grove, 209 Ill. 2d 248, 254, 807 N.E.2d
439, 443 (2004).
The Probate Act provides:
"(a) Every claim against the estate of a decedent
*** is barred as to all of the decedent's estate if:
(1) Notice is given to the claimant as provided in
Section 18-3 and the claimant does not file a claim
with the representative or the court on or before the
date stated in the notice ***.
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(b) Unless sooner barred under subsection (a) of this
Section, all claims which could have been barred under
this Section are, in any event, barred 2 years after
decedent's death." 755 ILCS 5/18-12(a), (b) (West
2002).
Section 18-3 of the Probate Act establishes the duty of the
estate's representative to deliver to each known creditor, and to
publish, "a notice stating *** that claims may be filed on or
before the date stated in the notice, which date shall be not
less than 6 months from the date of the first publication or 3
months from the date of mailing or delivery, whichever is later,
and that any claim not filed on or before that date is barred."
755 ILCS 5/18-3 (West 2002).
Patricia first contends the statute of limitations does not
apply because she has not made a "claim against the estate"
within the meaning of section 18-12. The complaint includes two
counts against the estate: one for breach of contract and one for
an accounting. The Probate Act defines a "claim" to include "any
cause of action." 755 ILCS 5/1-2.05 (West 2002). The counts for
breach of contract and for an accounting both state causes of
action. In re Estate of Winters, 239 Ill. App. 3d 730, 737, 607
N.E.2d 370, 374 (1993); Santa Claus Industries, Inc. v. First
National Bank of Chicago, 216 Ill. App. 3d 231, 236, 576 N.E.2d
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326, 329 (1991).
To avoid the broad statutory definition of a claim, Patricia
relies on Taylor v. Continental Illinois National Bank & Trust
Co., 26 Ill. App. 3d 610, 325 N.E.2d 444 (1975). In that case,
David Shandling assigned his interest in a debt to the plaintiff,
to repay the plaintiff for a loan. After Shandling died, the
plaintiff sued Shandling's estate to recover the plaintiff's
interest on the debt. The court held the plaintiff had not
stated a claim against the estate subject to the Probate Act's
limitation period, because a claim for an asset the decedent
assigned to the plaintiff, which never should have passed to the
estate, does not count as a claim against the estate.
Patricia contends Lee's earnings should have passed to her
directly, without ever becoming part of the estate, because he
assigned the earnings to her in the Pre-Nuptial Agreement.
"The existence of an assignment is dependent upon proof
of intent to make an assignment and that intent must be
manifested. [Citation.] As stated in the Restatement
(Second) of Contracts, 'An assignment of a right is a
manifestation of the assignor's intention to transfer
it by virtue of which the assignor's right to
performance by the obligor is extinguished in whole or
in part and the assignee acquires a right to such
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performance.' Restatement (Second) of Contracts §
317(1) (1981). When a valid assignment is effected,
the assignee acquires all of the interests of the
assignor in the property that is transferred."
Strosberg v. Brauvin Realty Services, Inc., 295 Ill.
App. 3d 17, 30, 691 N.E.2d 834, 843 (1998).
In the Pre-Nuptial Agreement Lee unequivocally makes the
earnings joint funds for both Lee and Patricia to use. The
Agreement does not assign to Patricia Lee's right to his
earnings. Thus, Taylor's pronouncement about the effect of an
assignment does not apply here.
Patricia also contends that she has not stated a claim
against the estate because she has pled a right to recover under
the will. The will incorporates by reference the Pre-Nuptial
Agreement that forms the basis for the counts of Patricia's
complaint directed against the estate. However, Patricia did not
formulate either count as a claim under the will. Instead she
pled one count as a claim for breach of contract and she made the
other count an action for an accounting for funds which she
claimed under the Agreement. Both counts state contractual
claims against the estate rather than a right as an heir under
the will. The statute of limitations in section 18-12 of the
Probate Act applies to Patricia's claims against the estate.
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The trial court, relying on In re Estate of Doyle, 229 Ill.
App. 3d 995, 594 N.E.2d 774 (1992), found that a 6-month
limitation period barred Patricia's claims. In Doyle, as in this
case, the estate showed that the claimants received actual notice
of the death, but the estate did not prove written notice
directed to the claimants, informing them of the ending date for
the statutory period for claims against the estate. In Doyle,
unlike this case, the estate proved that it published notice of
the opening and closing of the estate, as required by section 18-
3(a) of the Probate Act. See Ill. Rev. Stat. 1987, ch. 110½,
par. 18-3(a). When the claimants in Doyle filed their claim
against the estate, the applicable statute provided:
"All claims against the estate of a decedent ***
not filed *** within 6 months after the entry of the
original order directing issuance of letters of office
are barred as to all of the decedent's estate, unless
notice is not published as provided in subsection (a)
of Section 18-3." Ill. Rev. Stat. 1987, ch. 110½, par.
18-12(a).
The court in Doyle held that actual notice of the death gave
the claimants sufficient notice of the need to file their claim
against the estate within the 6 month statutory period, even
though they did not see the published notice that specified the
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date of the termination of the 6 month period for claims against
the estate.
The legislature amended section 18-12 in 1989. 755 ILCS
5/18-12, Historical and Statutory Notes, at 303 (Smith-Hurd
2007). The section as amended makes no reference to a 6-month
period for filing claims. Instead, it disallows claims filed
after "the date stated in the notice" required under section 18-
3. Section 18-3, as amended, requires the estate's
representative to publish, and to mail to all known creditors,
notice of the opening of the estate. The published notice and
the mailed notice must state the ending date for filing claims.
That date must fall at least 6 months after the first publication
of the notice, and it must also fall at least 3 months after the
date of mailing notice to known creditors. The statute no longer
sets a 6-month maximum period for the filing of all claims
against the estate. While the claimants in Doyle should have
known they had no more than a 6 month period for filing claims
against the estate, the current statutes no longer set any
maximum period other than the two-year limit of section 18-12(b).
We hold the Probate Act no longer includes a firm 6-month
limitation on the period in which claimants must file any claim
against the estate. The date provided in the notice published
and mailed in accord with section 18-3 sets the applicable period
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for filing claims. Because the estate here failed to prove that
it published and mailed notice as required by section 18-3, only
the two-year limitations period of section 18-12(b) applies.
Thus, Patricia had two years from the date of Lee's death to
inform the estate of her claims.
On May 17, 2005, about a month before the end of the two-
year limitation period, Patricia's attorney sent a letter to the
estate's attorney, informing the estate that Patricia instructed
the attorney to pursue a claim against the estate if their
dispute did not reach a satisfactory resolution. Patricia
contends this letter qualifies as her timely-filed claim.
In re Estate of Lane, 345 Ill. App. 3d 1123, 804 N.E.2d 113
(2003), also involved a contention that a letter mailed to the
estate's representative qualified as a timely-filed claim against
the estate. The court held letters to the estate's
representative may meet the requirements for claims filed against
the estate, as long as the letters "sufficiently show the intent
necessary to state a claim." Lane, 345 Ill. App. 3d at 1126.
For such a showing, "at the very least a letter must state an
unequivocal intention to pursue a claim against the estate."
Lane, 345 Ill. App. 3d at 1126.
Patricia's attorney does not state such an unequivocal
intention in his letter. Instead he threatens to make such a
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claim if the negotiations do not otherwise reach a satisfactory
resolution. The letter of May 17, 2005, does not make Patricia's
claims against the estate timely.
Finally, Patricia contends the will itself counted as her
timely notice of her claims, because the will directs the
executor to abide by the terms of the Pre-Nuptial Agreement. The
will does not notify the executor of Patricia's intent to claim
that Lee or his estate breached a contract with her, or that Lee
or his estate needed to account for disposition of certain funds.
Thus the will does not give the estate notice of the nature of
the claim, as required by section 18-2 of the Probate Act. 755
ILCS 5/18-2 (West 2002).
Patricia first filed her claim against the estate, within
the meaning of section 18-12(b) and section 18-2 of the Probate
Act, on November 2, 2005, when she filed her complaint in the
circuit court. Because Patricia filed her claim more than 2
years after Lee's death, section 18-12(b) bars the claim.
Therefore, we affirm the judgment of the trial court dismissing
both counts of Patricia's complaint against the estate.
Affirmed.
R. GORDON, P.J., and GARCIA, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
Please use PATRICIA POLLY,
following form:
Plaintiff-Appellant,
Complete v.
TITLE
of Case THE ESTATE OF LEE POLLY, Deceased,
Defendant-Appellee,
and
JANICE K. WALKER-TAYLOR,
Defendant.
Docket Nos. No. 1-08-0138
COURT Appellate Court of Illinois
First District, 1st Division
Opinion
Filed September 29, 2008
JUSTICES JUSTICE WOLFSON delivered the Opinion of the court:
R. GORDON, P.J., and GARCIA, J., concur.
APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the Appeal from the Circuit Court of Cook County.
Hon.___________,
Judge Presiding. The Hon. Allen S. Goldberg, Judge Presiding.
For APPELLANTS, Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of include attorneys of counsel. Indicate the word NONE if
Chicago. not represented.
For APPELLEES, For Appellant, Michael A. Haber and Jennifer M. Ovadenko,
Smith and Smith, KALCHEIM HABER, LLP, of Chicago.
of Chicago.
(Joseph Brown, of For Appellee, Timothy J. Storm, LAW OFFICES OF TIMOTHY J.
counsel). STORM, of Wauconda, Illinois.
Also add attor-
neys for third-
party appellants
and/or appellees.
(USE REVERSE SIDE IF NEEDED)
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