dissenting:
I must respectfully dissent from the majority opinion in this case.
We all recognize that renunciation of the will by the widow was required to be made under section 17 of the Probate Act (1965 Ill Rev Stats, c 3, § 17), within ten months of the time of admission of the will to probate or within such further time as is allowed by the court “if, within ten months after the admission of the will, the surviving spouse files a verified petition setting forth that litigation is pending that affects the share of the surviving spouse in the estate.” Such requirement as to renunciation obviously represents the public policy of the State in requiring that renunciation be made within the ten-month period or within an extended time obtained specifically as set forth in the Act. In the case before us, in the application for the second extension, the verified petition recited that litigation was pending which affects the share of the petitioner specifically as follows:
“ (a) litigation in Nebraska in which the court is being asked to pass upon certain questions which will determine the amount of property owned by decedent at the time of his death.
“ (b) litigation in Illinois in which the court is being asked to pass upon certain questions which will determine the amount of property owned by decedent at the time of his death.”
On the basis of the record in this cause, neither of these assertions were true. The trial court treated the verified petition as a misrepresentation of fact when it was disclosed that the assertions were untrue. It is noted that the beneficiaries in the case were given no specific notice (even though it was not required) and consequently could not be estopped to assert or bring to the attention of the court the issue of fraud or misrepresentation at the first opportunity.
In a situation such as confronted the trial court in the present case, the court was in the position outlined in Remer v. Interstate Bond Co., 21 Ill2d 501, at page 514, 173 NE2d 425, where the court says:
“It is true that where a court has jurisdiction of the parties and the subject matter its judgment is not subject to collateral attack. (Cherin v. The R. & C. Company, 11 Ill2d 447.) This does not mean, however, that a judgment obtained by deception may not be questioned after the expiration of thirty days. If proceedings regular in form are tainted with fraud or coercion, the court is not helpless to grant relief. The legislative policy favoring conclusiveness in the county court’s determination does not displace the higher policy of the law which requires a remedy for every wrong. If the order was obtained by fraud, as petitioner alleges, elementary principles of law require that relief be granted.”
I cannot agree with the majority opinion which in effect says in substance that the court is powerless to vacate an order based on misrepresentation, where it had jurisdiction to enter the order. I feel that this would be a backward step in the procedure to correct orders which have been obtained by fraud or misrepresentation. Section 72 of the Civil Practice Act (1967 Ill Rev Stats, c 110, § 72) was never meant to be limited in that sense. Nor do I feel that there was any “pending” litigation which could have been based on the claims which had been allowed and consented to by the estate. Time for objections by persons in interest had passed and there was nothing to show that the judgments were not conclusive or that there was any right of appeal (as a matter of right) in any party. The circumstance that one of the heirs could have filed a motion to vacate, in my judgment, was not the type of “pending” litigation to which the legislature obviously referred in section 17 of the Probate Act.
I do not believe that the case of Barnard v. Michael, 392 Ill 130, 63 NE2d 858, is authority for the conclusion that the trial court in the instant case had no power to vacate the order granting the second extension. That case involved a sale of real estate to pay debts and the Supreme Court itself (at page 137) pointed out:
“This is not a case where the doctrine of restoration or restitution, which we have mentioned earlier in this opinion, would apply in the event of a reversal. Here, the appellee has not received, by virtue of the decree, benefits of property belonging to appellants. The property sold belonged to the decedent and constituted assets of his estate, available for the payment of debts. The benefits derived from the decree approving the sale will inure to all persons interested in the estate. Neither did it rest within the choice or discretion of appellee whether the decree appealed from should be executed. The purchasers had an absolute right, after the expiration of thirty days from the entry of the decree approving the sale, to demand of the executrix a conveyance of the property purchased .... The situation is not analogous to a case where an appellee, after appeal, of his own volition, executes the judgment or decree appealed from, either by selling property of the appellant under execution or other process issued upon the judgment, or by appropriating to himself property of the appellant erroneously awarded by the decree to appellee.”
The emphasis, therefore, is on the circumstance that the benefit is not obtained by the party guilty of fraud or misrepresentation. In the instant case, the benefit accrues to the party guilty of misrepresentation and there are no innocent third parties, or others who are or would be injured by depriving this party of the benefit of an extension obtained, so far as the record is concerned, by misrepresentation.
I do not believe that a trial court is powerless to set aside such order when the facts relating to misrepresentation are presented to the court and where the only consequence of setting aside such order is to deprive the party guilty of such misrepresentation of certain benefits. Accordingly, I believe that the order of the Circuit Court of Marshall County should be affirmed.