{ "id": 4135291, "name": "In re ESTATE OF JOHN MOHR, Deceased (Wilma Thinschmidt, Petitioner-Appellant, v. Thomas Cartalino, as Ex'r of the Estate of John Mohr, Deceased, and as Legatee and Individually, Respondent-Appellee)", "name_abbreviation": "Thinschmidt v. Cartalino", "decision_date": "2005-06-09", "docket_number": "No. 1-04-0130", "first_page": "1011", "last_page": "1017", "citations": [ { "type": "official", "cite": "357 Ill. App. 3d 1011" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "98 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499282 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0352-01" ] }, { "cite": "186 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243891 ], "year": 1998, "pin_cites": [ { "page": "394-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0381-01" ] }, { "cite": "81 Ill. App. 3d 487", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226986 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "489" }, { "page": "490" }, { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0487-01" ] }, { "cite": "288 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596964 ], "year": 1997, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0534-01" ] }, { "cite": "342 Ill. 562", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5252457 ], "year": 1931, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill/342/0562-01" ] }, { "cite": "209 Ill. 2d 456", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461978 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "461-62" }, { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0456-01" ] }, { "cite": "86 Ill. App. 3d 482", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3186099 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/ill-app-3d/86/0482-01" ] }, { "cite": "162 Ill. App. 3d 1057", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3509507 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "1062" }, { "page": "1062" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/162/1057-01" ] }, { "cite": "342 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472650 ], "year": 2003, "pin_cites": [ { "page": "670-71" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/342/0666-01" ] }, { "cite": "18 L. Ed. 397", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 6140398, 6140175 ], "year": 1867, "pin_cites": [ { "parenthetical": "the judicial power of the federal government is exclusive in some cases and, under the United States Constitution, may be made exclusive in all other cases at the election and discretion of Congress" } ], "opinion_index": 1, "case_paths": [ "/us/71/0411-01", "/us/71/0408-01" ] }, { "cite": "97 Ill. 2d 174", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515419 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/ill-2d/97/0174-01" ] }, { "cite": "104 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5474845 ], "year": 1982, "pin_cites": [ { "page": "761-62" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/104/0758-01" ] }, { "cite": "54 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934387 ], "year": 1973, "pin_cites": [ { "page": "270" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/54/0266-01" ] }, { "cite": "104 Ill. 2d 431", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146835 ], "year": 1984, "pin_cites": [ { "page": "433" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/104/0431-01" ] }, { "cite": "288 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596964 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "538" }, { "page": "538" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/288/0534-01" ] }, { "cite": "342 Ill. 562", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5252457 ], "year": 1931, "pin_cites": [ { "page": "565" } ], "opinion_index": 1, "case_paths": [ "/ill/342/0562-01" ] }, { "cite": "209 Ill. 2d 456", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461978 ], "year": 2004, "pin_cites": [ { "page": "461-62" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/209/0456-01" ] } ], "analysis": { "cardinality": 645, "char_count": 13903, "ocr_confidence": 0.755, "pagerank": { "raw": 6.8330052001468e-08, "percentile": 0.4169438063763563 }, "sha256": "12ec960d06302d713a8c05a343b1f121afeb77dfbd02159a2350453e44bf0bad", "simhash": "1:2bdc73c275ce9c51", "word_count": 2313 }, "last_updated": "2023-07-14T22:31:24.775353+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF JOHN MOHR, Deceased (Wilma Thinschmidt, Petitioner-Appellant, v. Thomas Cartalino, as Ex\u2019r of the Estate of John Mohr, Deceased, and as Legatee and Individually, Respondent-Appellee)." ], "opinions": [ { "text": "JUSTICE QUINN\ndelivered the opinion of the court:\nWilma Thinschmidt filed a petition in the circuit court of Cook County pursuant to section 8 \u2014 1 of the Illinois Probate Act of 1975 (755 ILCS 5/8 \u2014 1 (West 2002)) to contest the validity of her brother\u2019s will. The executor of the brother\u2019s estate moved to dismiss Thinschmidt\u2019s petition under section 2 \u2014 619(a)(5) of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(5) (West 2002)) based on the fact that the petition was untimely. The motion to dismiss was granted because the trial court found it lacked jurisdiction due to the fact that the action was not timely filed. Thinschmidt now appeals that dismissal and contends that the trial court maintained jurisdiction to hear her petition to contest the validity of her brother\u2019s will. For the reasons that follow, we affirm the trial court\u2019s order dismissing Thinschmidt\u2019s petition.\nBACKGROUND\nJohn Mohr died on February 20, 2003, with a will dated January 26, 2003. Joseph McDonough, a nephew of the deceased, filed a petition for letters of administration. He was appointed an independent administrator on February 24, 2003. On March 7, 2003, Thomas Cartalino filed his cross-petition for probate of will and for letters testamentary. Pursuant to the cross-petition, Mohr\u2019s will was admitted to probate on March 7, 2003. The letters of office previously issued to McDonough were revoked.\nConcurrent with the admission of the will to probate, Mohr\u2019s sister Wilma Thinschmidt filed a petition for proof of will pursuant to section 6 \u2014 21 of the Probate Act (755 ILCS 5/6 \u2014 21 (West 2002)). The hearing on the formal proof of will was set for May 2, 2003. The trial court heard testimony from Michael Malinowski, one of the attesting witnesses and Robert Kail, an attorney and scrivener. The hearing was continued approximately seven times due to the inability to locate one of the witnesses to the will. On March 3, 2004, the missing witness, James Peck, testified as to the due execution and attestation of the decedent\u2019s will and the trial court entered an order confirming the order admitting the will to probate.\nOn July 30, 2003, during the pendency of the petition for proof of will, Thinschmidt requested and was granted leave to file a petition to contest the admission of the will. Thinschmidt filed a petition to contest admission of the will on September 11, 2003.\nCartalino filed a motion to dismiss the petition to contest the admission of the will on the basis that the six-month statutory period had expired. Following a hearing on Cartalino\u2019s motion to dismiss, the trial court found that the petition to contest admission of the will was not filed within the six-month period as required by section 8 \u2014 1 of the Probate Act (755 ILCS 5/8 \u2014 1(a) (West 2002)) and that the court did not have jurisdiction to hear the petition. The trial court then entered an order granting Cartalino\u2019s motion and dismissing the petition to contest admission of the will. Thinschmidt now appeals.\nANALYSIS\nThinschmidt contends on appeal that the trial court erred in dismissing her petition to contest admission of the will. She argues that the trial court gave her leave to file the document, clearly contemplating the filing of a petition at some point in the future. She argues that she should not be punished when the trial court\u2019s order set no time restriction for actually filing the petition. Thinschmidt also notes that, at the time she was granted leave to file, the petition for proof of will was pending and unresolved. Thinschmidt argues that, by granting leave to file, the trial court necessarily retained jurisdiction to enforce that order and to hear her will contest.\n!<[T]he right to contest the validity of a will is purely statutory. It must be exercised by the person or persons, in the manner, and within the time prescribed by the Probate Act.\u201d In re Estate of Schlenker, 209 Ill. 2d 456, 461-62 (2004), citing Handley v. Conlan, 342 Ill. 562, 565 (1931). An action to admit a will to probate cannot be expanded to constitute a will contest, and if no direct proceeding to contest the will is brought within the statutory period, the validity of the will is established for all purposes. In re Estate of Mayfield, 288 Ill. App. 3d 534, 538 (1997).\nSection 8 \u2014 1 of the Probate Act provides, in pertinent part, as follows:\n\u201cWithin 6 months after the admission to probate of a domestic will *** any interested person may file a petition in the proceeding for the administration of the testator\u2019s estate or, if no proceeding is pending, in the court in which the will was admitted to probate, to contest the validity of the will.\u201d 755 ILCS 5/8 \u2014 1(a) (West 2002).\nThe time limit set out in the statute limiting the time in which to file will contests is not a statute of limitations in the ordinary sense but is a jurisdictional statute, for without compliance with the applicable time limit, the trial court loses jurisdiction to hear the will contest. Julia Rackley Perry Memorial Hospital v. Peters, 81 Ill. App. 3d 487, 489 (1980). \u201c[T]he basic justification for the construction of the statute as one of a limitation on the trial court\u2019s jurisdiction is the necessity to expedite the administration and distribution of estates and to prevent undue delay in the settlement and determination of property interests created by a will.\u201d Julia Rackley Perry Memorial Hospital, 81 Ill. App. 3d at 490.\nIn this case, the decedent\u2019s will was admitted to probate on March 7, 2003, and, therefore, pursuant to section 8 \u2014 1 of the Probate Act, Thinschmidt had six months from that date to file a petition to contest the validity of that will. However, Thinschmidt filed her petition to contest the will on September 11, 2003, beyond the required six-month period.\nThinschmidt argues, nonetheless, that the trial court\u2019s order granting leave to file a petition to contest the will, entered during the statutory period to contest the will, conferred jurisdiction on the court to hear the later-filed contest. We reject this argument because section 8 \u2014 1 of the Probate Act specifically requires that the petition to contest the validity of the will be filed within six months after the admission to probate of the will. \u201cWhere a statute is clear and unambiguous, we cannot restrict or enlarge its meaning. Rather, we must interpret and apply it in the manner in which it was \u2022written. We cannot rewrite a statute to make it consistent with the court\u2019s idea of orderliness and public policy.\u201d Estate of Schlenker, 209 Ill. 2d at 466, citing Henrich v. Libertyville High School, 186 Ill. 2d 381, 394-95 (1998). Accordingly, the trial court lacked jurisdiction to hear Thinschmidt\u2019s petition to contest the will where she failed to file it within the statutory time period. Julia Rackley Perry Memorial Hospital, 81 Ill. App. 3d at 489.\nIn rejecting Thinschmidt\u2019s argument, we also find her reliance on Sponemann v. Country Mutual Insurance Co., 98 Ill. App. 3d 352 (1981), unavailing. In Sponemann, the plaintiffs\u2019 complaint against their insurance company was dismissed by the trial court, and on the thirtieth day after that dismissal, the trial court granted plaintiffs leave to file an amended complaint. The plaintiffs filed an amended complaint several weeks after the court granted leave to file such complaint, and, therefore, the amended complaint was filed beyond the 30-day retention-of-jurisdiction period. The defendants argued that the trial court\u2019s dismissal of the original complaint did not allow leave to file an amended complaint and was therefore an appealable order. Since plaintiffs did not appeal, defendants argued that the trial court lost jurisdiction of the case. The appellate court held that because the trial court entered an order granting plaintiffs leave to file the amended complaint on the thirtieth day after dismissing the original complaint, the trial court retained jurisdiction to hear the amended complaint. Sponemann, 98 Ill. App. 3d at 358. Unlike Sponemann, this case involves the ability of an interested party to file a petition to contest the validity of a will under the specific provisions of the Probate Act. In addition, unlike Sponemann, Thinschmidt failed to timely file an original petition to invoke the trial court\u2019s jurisdiction.\nCONCLUSION\nFor the above-stated reasons, we affirm the order of the circuit court of Cook County dismissing Thinschmidt\u2019s petition to contest the admission of the will.\nAffirmed.\nGREIMAN, J., concurs.", "type": "majority", "author": "JUSTICE QUINN" }, { "text": "PRESIDING JUSTICE REID,\ndissenting:\nI dissent. The majority correctly identifies the controlling law in the area of will contests. According to the Illinois Supreme Court, \u201c[t]he right to contest the validity of a will is purely statutory,\u201d and \u201cmust be exercised by the person or persons, in the manner, and within the time prescribed by the Probate Act.\u201d In re Estate of Schlenker, 209 Ill. 2d 456, 461-62 (2004), citing Handley v. Conlan, 342 Ill. 562, 565 (1931). However, I believe that, even back in the days of In re Estate of Spaits, 104 Ill. 2d 431, 433 (1984), when the right to contest a will was held to be constitutionally based, the supreme court recognized the time limit as a condition precedent to filing and thereby giving notice to the interested parties and the trial court. Regardless of whether Schenkler or Spaits was the controlling law at the time, the purpose of the time limit, in addition to the orderly administration of estates, is one of jurisdiction and notice.\nThe general rule is that \u201c[a]n action to admit a will to probate cannot be expanded to constitute a will contest.\u201d In re Estate of Mayfield, 288 Ill. App. 3d 534, 538 (1997), citing In re Estate of Marcucci, 54 Ill. 2d 266, 270 (1973). \u201cNevertheless, if no direct proceeding to contest the will is brought within the statutory period, the validity of the will is established for all purposes.\u201d Estate of Mayfield, 288 Ill. App. 3d at 538, citing Robinson v. First State Bank, 104 Ill. App. 3d 758, 761-62 (1982), rev\u2019d in part on other grounds, 97 Ill. 2d 174 (1983).\nNormally, where a potential contestant was attempting to expand the formal proof of a will process to include a petition to contest, I would not hesitate to apply Marcucci, and Mayfield as those cases interpret the plain, unambiguous language of section 8 \u2014 1 of the Probate Act. 755 ILCS 5/8 \u2014 1 (West 2002). However, this is not a normal case. Though not technically required, Thinschmidt interposed her request for leave to file the will contest petition within the statutory time frame. This request for leave took place in the context of a contested hearing regarding the formal proof of will. At that point, when the trial court was asked by Thinschmidt for leave to subsequently file a physical document memorializing her intention to contest the will, the trial court was made aware that there was a party who objected to the will. I find it irrelevant that the proceedings stemming from the will contest petition were heard by a judge other than the one who granted leave to file. \u201cIllinois circuit courts are courts of general jurisdiction having original jurisdiction over all justiciable controversies (Ill. Const. 1970, art. VI, \u00a7 9), except (1) cases over which the federal courts have exclusive jurisdiction (The Moses Taylor v. Hammons, 71 U.S. (4 Wall.) 411, 416, 18 L. Ed. 397 (1867) (the judicial power of the federal government is exclusive in some cases and, under the United States Constitution, may be made exclusive in all other cases at the election and discretion of Congress)), (2) matters committed to administrative tribunals (see Ill. Const. 1970, art. VI, \u00a7 9), and (3) those matters committed by the Illinois Constitution to the exclusive original jurisdiction of the Illinois Supreme Court (Ill. Const. 1970, art. VI, \u00a7 9). See 3 R. Michael, Illinois Practice \u00a7\u00a7 1.2, 2.1 (1989).\u201d Russell v. Kinney Contractors, Inc., 342 Ill. App. 3d 666, 670-71 (2003).\nThis court has consistently recognized \u201cIllinois\u2019 long-standing policy favoring the orderly administration of estates.\u201d In re Estate of Jeziorski, 162 Ill. App. 3d 1057, 1062 (1987), citing In re Estate of Moerschel, 86 Ill. App. 3d 482 (1980). \u201cWe further recognize the purpose of [the] legislature[ ] in passing probate acts is to ensure that all claims relating to the administration of estates are handled in the probate proceedings, thereby providing a single forum for settling the rights of the parties.\u201d Estate of Jeziorski, 162 Ill. App. 3d at 1062, citing G. Bogert, Trusts & Trustees \u00a7 477 (rev. 2d ed. 1978). Here, Thinschmidt was late in getting her physical document filed before the court. However, it cannot come as a surprise to the court or the parties that the document was coming. The entry of the order granting leave clearly contemplates that the parties praying for said leave will actually do that which was asked for in the petition for leave of court. I might feel differently had there been no request for leave. Because there was such a timely request for leave, I feel it would be wrong to exalt form over substance. From a jurisdictional perspective, Thinschmidt declared her intention to subsequently file thereby invoking the subject matter jurisdiction of the court. While better practice would have been to file the physical document within the statutory time frame, I believe her oral motion backed up by a written court order was sufficient.", "type": "dissent", "author": "PRESIDING JUSTICE REID, dissenting:" } ], "attorneys": [ "Janna Dutton & Associates, PC., of Chicago (Janna Dutton, of counsel), for appellant.", "Kogut & Associates, of Des Plaines (A. Charles Kogut, of counsel), for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF JOHN MOHR, Deceased (Wilma Thinschmidt, Petitioner-Appellant, v. Thomas Cartalino, as Ex\u2019r of the Estate of John Mohr, Deceased, and as Legatee and Individually, Respondent-Appellee).\nFirst District (4th Division)\nNo. 1-04-0130\nOpinion filed June 9, 2005.\nREID, PJ., dissenting.\nJanna Dutton & Associates, PC., of Chicago (Janna Dutton, of counsel), for appellant.\nKogut & Associates, of Des Plaines (A. Charles Kogut, of counsel), for appellee." }, "file_name": "1011-01", "first_page_order": 1027, "last_page_order": 1033 }