{
  "id": 5641429,
  "name": "In re ESTATE OF FRANK MOSKAL, Deceased. - (PAULINE MOSKAL, Adm'r of the Estate of Frank Moskal, Petitioner-Appellant, v. SOPHIA KOWAL, Respondent-Appellee.)",
  "name_abbreviation": "Moskal v. Kowal",
  "decision_date": "1977-06-17",
  "docket_number": "No. 76-1438",
  "first_page": "291",
  "last_page": "294",
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    "id": 8837,
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  "last_updated": "2023-07-14T21:01:05.304449+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "In re ESTATE OF FRANK MOSKAL, Deceased. \u2014 (PAULINE MOSKAL, Adm\u2019r of the Estate of Frank Moskal, Petitioner-Appellant, v. SOPHIA KOWAL, Respondent-Appellee.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nAt issue in this appeal is whether the administrator\u2019s pleadings and affidavit alleged sufficient facts to reopen the estate pursuant to section 308a of the Probate Act. Ill. Rev. Stat. 1975, ch. 3, par. 308a, repealed by Pub. Act 79-328; current version at Ill. Rev. Stat. 1975, ch. 3, par. 24 \u2014 9.\nOn October 23, 1975, appellant petitioned pursuant to section 308a of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 308a) to reopen this estate. The estate had been closed on May 24,1973. She alleged that \u201cadditional personal property\u201d consisting of family heirlooms and objects of art had been discovered since the estate was closed. The trial court ordered that the estate be reopened, issued letters of administration to her and ordered that a citation to recover assets be served upon appellee.\nAppellee responded under oath that the personal property in her possession had not been \u201cnewly discovered\u201d by appellant since the estate was closed, but rather that appellant and deceased\u2019s other heirs knew this property was in appellee\u2019s possession prior to that time as evidenced by an entry in the estate\u2019s final account for discovery fees of these assets, and that the heirs had attempted to obtain this property by replevin proceedings in the circuit court. She prayed that the order reopening the estate be vacated.\nAppellant answered, and inter alia, admitted that Voucher #5 of the estate\u2019s final account showed \u201ca reimbursement to the then administrator for investigation conducted in Chicago, regarding discovery of assets and including alleged property of the deceased being held by one Mrs. John Kowal,\u201d but denied that the voucher represented an adjudication on whether these assets belonged to the estate.\nAppellant also filed an affidavit in which she admitted that she, the other heirs, and the estate\u2019s original administrator knew this property was in appellee\u2019s possession prior to the closing of the estate and that although they had this knowledge, they chose not to pursue the property for reasons of economy and upon the advice of counsel.\nOn August 4, 1976, the trial court specifically found this property was not a newly discovered asset and entered an order which vacated the prior order reopening the estate, revoked her letters of administration, and dismissed citation proceedings against appellee Sophia Kowal.\nOpinion\nAppellant contends the trial court erred by dismissing this cause because the matter had been previously adjudicated. She argues that the estate was properly reopened pursuant to section 308a of the Probate Act. (Ill. Rev. Stat. 1975, ch. 3, par. 308a.) That section provides in pertinent part:\n\u201cIf an estate has been administered and the executor or administrator discharged, it may be reopened to permit the administration of a newly discovered asset or of an unsettled portion of the estate on the verified petition of any interested person.\u201d\nWhere a statute specifies the grounds on which a final settlement will be opened or set aside, such grounds must be shown to be present in order to warrant action by the court. (In re Estate of Kuntz (1968), 98 Ill. App. 2d 367, 240 N.E.2d 448.) Consequently, the trial court\u2019s order reopening the estate was proper only if the personal property was either a newly discovered asset or an unsettled portion of the estate.\nThe trial court specifically found that this property was not a newly discovered asset. The estate\u2019s final account showed that the administrator and heirs knew this property existed and was in appellee\u2019s possession prior to the time the estate was closed. Appellant admitted in her amended petition that the original administrator had been reimbursed for investigations to discover assets including the property in appellee\u2019s possession. Moreover, appellant admitted in her affidavit that the estate\u2019s heirs knew about the property, but decided not to collect it upon the advice of counsel and for \u201creasons of economy.\u201d Based upon these facts, the trial court\u2019s finding that the property was not a newly discovered asset was not erroneous.\nAppellant has orally argued that section 308a should be construed to allow the reopening of an estate whenever an asset is discovered by the court after the estate has been closed, in addition to whenever it is discovered by an estate\u2019s heirs or administrator. She has cited no authority for this novel interpretation. To the contrary, section 308a specifically provides for the reopening of an estate on the petition of an interested party and does not mention any sua sponte action of the court. Therefore, we reject appellant\u2019s argument. Even if appellant\u2019s interpretation was correct, the trial court in the instant case had notice of this property by the estate\u2019s final account and, therefore, it did not discover this asset after the estate was closed.\nAppellant cannot argue for the first time on appeal that this property qualifies as \u201can unsettled portion of the estate\u201d under section 308a. The theory upon which a cause is tried in a lower court cannot be changed on review. (In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 131 N.E.2d 487.) Here, appellant\u2019s petition and arguments in the trial court were premised on the theory that this property was a newly discovered asset and not that it was an unsettled portion of the estate. Consequently, we will not review this issue on appeal.\nAppellant also contends the trial court erred by finding that she had failed to assert her rights in a timely manner. Appellant interprets the trial court\u2019s written finding to imply that she was barred from reopening the estate by the statute of limitations or the doctrine of laches. The court\u2019s order states that appellant \u201chad adequate opportunity to pursue the collection of the assets sought herein prior to the entry of the Order entered May 24, 1973, which closed the Estate, but she failed to pursue her remedies and, in fact, approved the Final Account aforesaid.\u201d When this finding is placed in context with the entire written order, it is clear that the finding relates to the characterization of the property as not being an undiscovered asset at the time the estate was closed. We, therefore, reject appellant\u2019s final contention.\nFor the reasons stated, the judgment of the circuit court is affirmed.\nAffirmed.\nSULLIVAN, P. J., and WILSON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE LORENZ"
      }
    ],
    "attorneys": [
      "Frederick J. Sentman, of Chicago (Reilly & Sentman, of counsel), for appellant.",
      "Maragos, Richter, Berman, Russell & White, Chartered, of Chicago (Samuel C. Maragos and Robert J. Pavich, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "In re ESTATE OF FRANK MOSKAL, Deceased. \u2014 (PAULINE MOSKAL, Adm\u2019r of the Estate of Frank Moskal, Petitioner-Appellant, v. SOPHIA KOWAL, Respondent-Appellee.)\nFirst District (5th Division)\nNo. 76-1438\nOpinion filed June 17, 1977.\nFrederick J. Sentman, of Chicago (Reilly & Sentman, of counsel), for appellant.\nMaragos, Richter, Berman, Russell & White, Chartered, of Chicago (Samuel C. Maragos and Robert J. Pavich, of counsel), for appellee."
  },
  "file_name": "0291-01",
  "first_page_order": 313,
  "last_page_order": 316
}