In re Estate of Howell

              1
NOTICE
Decision filed 04/26/07. The text of
this dec ision may be changed or
corrected prior to the filing of a
Petition for Rehea ring or the
disposition of the same.
NO. 5-06-0224
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
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In re ESTATE OF FRED W. HOWELL, ) Appeal from the Circuit Court of
Deceased ) Washington County.
)
(Tina Quick and Stephen A. Quick, ) No. 05-CH-35
Petitioners-Appellants, v. Danny Thomas )
Howell, Executor, Respondent-Appellee). ) Honorable Dennis G. Hatch,
) Judge, presiding.
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PRESIDING JUSTICE WELCH delivered the opinion of the court:
The petitioners, Tina Quick and Stephen A. Quick, appeal from the dismissal with
prejudice by the circuit court of Washington County of their petition to contest the will of
Tina's father, Fred W. Howell. The circuit court dismissed the petition on the ground that
service had not been timely made upon the executor of the estate. For reasons that follow,
we reverse the dismissal with prejudice and remand for further proceedings in the circuit
court.
The decedent's estate was admitted to probate, and letters of office were issued to the
executor on June 21, 2005. The petition to contest the will was filed on December 21, 2005.
Although the petitioners, who were not represented by counsel, had captioned the petition
as a probate matter to be filed in the pending probate case, the circuit clerk filed the matter
as a chancery case, giving it a different case number than the probate case. At the hearing
on the motion to dismiss, the circuit clerk testified that according to direction from the
Administrative Office of the Illinois Courts, will contest petitions were to be filed in
chancery rather than in probate. Accordingly, she assigned the case a chancery number and
did not file it in the pending probate proceeding. A summons was issued by the circuit clerk