Summary
In Schwartfager v. Schwartfager, 330 Ill. App. 111 at page 113, the court said: "It has been repeatedly held both by the Supreme and Appellate Courts of this State, that in appeals from the probate court to the circuit court, the hearing is a trial de novo, and the appeal acts to set aside any order that might have been rendered in the probate court.
Summary of this case from Burstein v. Millikin Trust Co.Opinion
Gen. No. 10,064.
Opinion filed. December 12, 1946. Released for publication December 30, 1946.
1. PROBATE COURTS, § 38 — appeal as acting to set aside order rendered in probate court. In appeals from probate court to circuit court, hearing in trial de sovo, and appeal sets to met aside any order that might have been rendered in probate court.
See Callaghan's Illinois Digest, same topic and section number.
2. PROBATE COURTS, § 45fn_ — procedure of court on appeal. In appeals from probate court, circuit court does not sit as court of errors, but should try case same as though it had never been tried before, and on further appeal to Appellate or Supreme Court, view of probate court is of no importance in passing on judgment of circuit court.
3. ESTATES OF DICEDENTS, § 277fn_ — circuit court as without jurisdiction either to affirm or reverse judgment of probate court on appeal. Effect of prosecuting appeal to circuit court from judgment of probate court reducing widow's award, was to vacate judgment, and it was duty of circuit court to try case de novo and pass upon merits of case, since it was without jurisdiction either to affirm or reverse judgment of probate court.
Appeal by defendant from the Circuit Court of Kane county; the Hon. CHARLES A. O'CONNOR, Judge, presiding. Heard in this court at the October term, 1946. Reversed and reminded. Opinion filed. December 12, 1946. Released for publication December 30, 1946.
GEORGE D. CARBARY and PAUL M. HAMILTON, both of Elgin, for appellant.
CHARLES G. SEIDEL and ERNEST W. AKEMANN, both of Elgin, for appellee.
Harold A. Schwartfager died in 1937, in Kane county, Illinois, leaving a widow and two minor children. His widow, Florence, was appointed administratrix of his estate, on October 5, 1937. In August 1938, appraisers were appointed to fix the widow's award, which was fixed at $5,000, and for each of the minor children $200, or a total award of $5,400. The probate court on the same day approved the award. To satisfy the award, the widow selected certain personal property, and on July 9, 1941, filed her final report. The inventory filed shows the only assets of said estate were 175 shares of stock in the Elgin Flour and Feed Company.
On April 29, 1938, Kittie C. Schwartfager filed her claim against the estate, which was allowed for $2,000 on October 3, 1940, as a sixth class claim. On October 3, 1940, Kittie Schwartfager filed a petition in the probate court of Kane county to revise the widow's award. On February 19, 1942, the probate court entered an order reducing the widow's award from $5,000 to $2,500, and from that order the widow, as administratrix, perfected an appeal to the circuit court.
The cause was heard in the circuit court on a stipulation of facts that the only assets of the estate were 175 shares of stock in the Elgin Flour and Feed Company, appraised at $30 per share, and the testimony of the attorney representing the claimant, to the effect they had discussed on numerous occasions, with the attorney for the administratrix, the possibility of a settlement of the claim, and for that reason, the claim of Kittie C. Schwartfager was permitted to rest.
At the conclusion of the hearing, the circuit court, on July 18, 1945, entered an order dismissing the appeal, and entered judgment in favor of the appellee. It is from this judgment that the appeal to this court has been prosecuted.
It has been repeatedly held both by the Supreme and Appellate Courts of this State, that in appeals from the probate court to the circuit court, the hearing is a trial de novo, and the appeal acts to set aside any order that might have been rendered in the probate court. The circuit court does not sit as a court of errors, but should try the case the same as though it had never been tried before, which on further appeal to the Appellate or Supreme Court, the judgment should be reviewed as that of the circuit court and the view of the probate court is of no importance in passing on that judgment. Barnes v. Earle, 275 Ill. 381; In re Estate of Murray v. Appeal of Murray, 310 Ill. App. 121; In re Estate of Schwartz, 286 Ill. App. 310, and In re Estate of Noel v. Noel, 228 Ill. App. 569.
We are of the opinion that the effect of prosecuting the appeal from the judgment of the probate court reducing the widow's award, was to vacate the judgment of the probate court, and it was the duty of the circuit court to pass upon the merits of the case. It should have tried the case de novo, and upon such an appeal, it was without jurisdiction, either to affirm, or reverse the judgment of the probate court, but only to try the case de novo, Wesemann v. Foley, 231 Ill. App. 104.
The judgment of the circuit court dismissing the appeal is reversed, and the cause remanded to the said court to proceed and try the case de novo. Upon the merits of the case, we express no opinion.
Reversed and remanded.