Opinion
Gen. No. 43,083.
Opinion filed October 23, 1944. Released for publication November 6, 1944.
1. PROBATE COURTS, § 45 — trial de novo on appeal to circuit court. On appeal to circuit court from probate court's order, striking petition that petitioners be declared heirs-at-law and next of kin of deceased, petitioners were entitled to have issues tried de novo.
See Callaghan's Illinois Digest, same topic and section number.
2. DESCENT AND DISTRIBUTION, § 11.1fn_ — waiver of right to hearing on amended petition for declaration of heirship. By appealing to circuit court from probate court's order, striking petition that petitioners be declared heirs-at-law and next of kin of deceased, petitioners waived any right to hearing on their amended petition.
3. DESCENT AND DISTRIBUTION, § 1fn_ — controlling effect of statute. Statute of descent and distribution, and such statute alone, controls on question of what persons are heirs-at-law and next of kin of deceased (Ill. Rev. Stat. 1943, ch. 3, par. 162 et seq.; Jones Ill. Stats. Ann. 110.258 et seq.).
4. DESCENT AND DISTRIBUTION, § 2fn_ — construction of statute. Provision, in statute of descent and distribution, that distinction "in no case" shall be made between whole and half blood does not create another class of persons who will take but forbids distinction between whole and half blood in case of named persons who are to take, and, therefore, repeals feudal-law rule which excluded from inheritance descendants who were of half blood, but this is far short of creating class of heirs who are not of deceased's blood at all (Ill. Rev. Stat. 1943, ch. 3, par. 162; Jones Ill. Stats. Ann. 110.258).
5. DESCENT AND DISTRIBUTION, § 7fn_ — strangers to blood as not heirs-at-law and next of kin of deceased. Strangers to blood of deceased, namely, children of sister of deceased's stepfather, held, under statute, to have no ground for claiming that they were heirs-at-law and next of kin of deceased (Ill. Rev. Stat. 1943, ch. 3, par. 162; Jones Ill. Stats. Ann. 110.258).
Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. GEORGE W. BRISTOW, Judge, presiding. Heard in the first division of this court for the first district at the April term, 1944. Affirmed. Opinion filed October 23, 1944. Released for publication November 6, 1944.
MAURICE T. WEINSHENK and HARRY W. STANDIDGE, of Chicago, for appellants.
TATGE TATGE, CAMPBELL, CLITHERO FISCHER, and ROBERT F. KOLB, all of Chicago, for appellees.
This appeal from the circuit court of Cook county is here by transfer from the Supreme Court. ( In re Estate of Paus, 385 Ill. 550.) It was heard in the circuit court on appeal from the probate court. The matter began in that court through the filing of a petition by Barbara Meyers and Frank and William Haberzetle, praying that they might be declared to be heirs-at-law and next of kin of the deceased. Their petition was referred. The referee reported that they were strangers to the blood of Barbara Paus and recommended the petition be stricken. It was so ordered by the probate court on March 22, 1943.
The petitioners filed an amended petition April 7, 1943, but no hearing was held thereon in the probate court. An appeal from the probate court to the circuit court was perfected from the order of March 22 on April 9, 1943. The transcript filed in the circuit court included only the original petition and the orders and proceedings under it.
In the circuit court the administratrix moved to dismiss the appeal on the grounds petitioners were strangers to the blood of Barbara Paus and therefore had no interest in her estate. The motion was sustained and an order dismissing their petition entered June 11, 1943. The motion called attention to the amended petition filed in the probate court and also that an additional transcript filed in the circuit court disclosed this petition. On April 25, 1944, the circuit court, after hearing, denied the motion of petitioners to vacate the order of June 11 and also the order of June 25. Petitioners appealed from both orders to the Supreme Court on the theory that constitutional questions were involved. The Supreme Court transferred the appeals to this court, delivering an opinion to the effect that no questions under either State or National constitutions were involved, as was argued in the briefs of petitioners. No further briefs were filed in this court. The parties were, however, heard at length on oral argument. The report of the referee of the probate court does not appear in the record.
Constitutional points have thus been eliminated. The sole question before this court is whether the circuit court erred in holding petitioners were not heirs-at-law of Barbara Paus and in dismissing their appeals because they were without interest in the subject matter of the litigation.
It is not questioned that petitioners in the circuit court were entitled to a trial de novo of the issues. People v. Whealan, 353 Ill. 500; In re Estate of Turner, 275 Ill. App. 366. However, the material facts are stated in the petitions and are not denied. There is, we think, merit to the contention of the estate that by appealing from the order entered on the first petition any right to a hearing on the second was waived. McCoy v. Acme Automatic Printing Co., 278 Ill. 276; Marks v. Pope, 370 Ill. 597, 598.
The question of whether petitioners are heirs-at-law and next of kin of the deceased depends wholly on the construction of the Statute of Descents and Distributions. Ill. Rev. Stat. 1943, ch. 3, Art. II, § 11 [par. 162], pp. 44, 45 [Jones Ill. Stats. Ann. 110.258]; Campbell v. McLain, 318 Ill. 610; Hardesty v. Mitchell, 302 Ill. 369; Russell v. Bulliner, 370 Ill. 260. The statute controls. The ideas of either court or counsel as to who should take is not determinative. Wall v. Pfanschmidt, 265 Ill. 180, 193. Except in the case of husband or wife, or of adoption, as provided by statute, persons other than relatives of the blood are not heirs of the other spouse. 26 C.J.S. § 20, p. 1027, § 38, p. 1043.
The facts averred in the petition are stated in an argumentative way, which renders them somewhat obscure. We gather therefrom that the name of the deceased was Barbara Grotenhus; that her father died in her early childhood; that her mother was remarried to Ignatz Paus, whose surname the deceased assumed and was thereafter known as Barbara Paus; that of the marriage between Ignatz Paus and the mother of Barbara Paus a son, Charles Paus, was born; that the mother of Barbara died first, then secondly Ignatz Paus died, then thirdly Charles Paus, and fourthly Barbara Paus; that no property descended to Barbara Paus from her mother, but Barbara Paus received from her stepfather, Ignatz Paus, and from Charles Paus, who was her half-brother, some property.
Petitioners aver they are the children of a sister of Ignatz Paus, who was the stepfather of Barbara Grotenhus Paus, and that therefore they are heirs and next of kin of the deceased. They argue this from the statute which provides: "In no case is there any distinction between the kindred of the whole and the half blood."
We find nothing in the statute to justify the construction contended for. Five paragraphs of the statute designate persons who shall take by descent from a deceased person. The provision that distinction "in no case" shall be made between the whole and half blood does not create another class of persons who will take but forbids distinction between the whole and half blood in the case of the persons named who are to take. The rule of the feudal law excluded from the inheritance descendants who were of the half blood. The rule never found favor in this country. The statute therefore expressly repeals that rule. This comes far short of creating another class of persons who are to take and who are not of the blood of the deceased at all. Petitioners' contention is without merit. They have no standing to make their claim. There is a fundamental distinction between persons who are of the half blood and those without inheritable blood at all.
The judgment of the circuit court will be affirmed.
Affirmed. NIEMEYER, P.J., and O'CONNOR, J., concur.