Petition — Harvey v. Harris Trust & Savings Bank

®9-1117

Deeme Court, U. &

rib ED

DEC 28 1979

Iu the MICHAEL RODAK, 58., CLERK

Supreme Court of the United States

OcroseR TERM, 1979

BETTY SANDER HARVEY,

Petitioner,

vs.

HARRIS TRUST & SAVINGS BANK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ILLINOIS

BETTY SANDER HARVEY,

834 Monroe Ave.

River Forest, IL 60305

Pro Se Petitioner

Dottie Naeem

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

7

PAGE

ro cn ecwerenccecvee 1

lc actepenenenicomini 2

LEN LST EC 2

Issues Presented for Review . ............2.......:c--ccsu-sceeceeseeeees 3

Constitutional Provisions Involved ...............0...2...--..----- 3

LES SE LEE ATO 4

Rd cotposmenbipecncnce 4)

Raising the Federal Questions -22002.2.....2...-e.-eseeeeeeemeeeeeee 6

Reasons for Granting the Writ ..20.0.22..2....ceeeeeee eee 8

Cogelusion sina inieliedaltcnschonitinatllen SSS 26

Appendices :

Appendix A—Opinion of Appellate Court, First

EERIE SESE IS ELSES RATT App. 1

Appendix B—Complaint 76L 20780 —W.0002...... App. 11

Appendix C—Trial Court’s Order of Dismissal,

I a ladies scatpisemavesnifienne App. 21

Appendix D—Last Will and Trust of Ernest J.

ESSERE GNSS i a App. 23

Appendix E—Report of Proceedings, June 22,

ee aah asctiaipltinsabiboeancebeconencoctenatte App. 29

Appendix F—Petition for Appeal to Ill. Supreme

I aaa cierrsdiamnesetopnconeeee -App. 30

Appendix G—Renunciation of Executor Harris

IE in I I orcs ence essencnseennere App. 41

ii

PAGE

Appendix H—Report of Proceedings, March 12,

1979 (oral argument)

PE I os Senciensnintacistoctienpsind thacnd App. 42

H-2—Renunciation as Executor ........ App. 44

Appendix I—Order of Circuit Court, Denying Mo-

tion to Vacate & Amend, Nov. 22, 1977 ........... App. 46

Appendix J—Order of Ill. Supreme Court Denying

petition for leave to Appeal ...................0.......... App. 47

Appendix K—Order denying petition for rehear-

SI eI i RR ies eccerctclaccbecinictnnch nb cccab vos -App. 48

Appendix L—Jury Demand ©... -App. 49

AUTHORITIES CITED

Cases

Anderson v. Anderson, 82 N.E. 311, 229 Ill. 538 ........ 12, 24

Anderson v. Laybeck, 145 N.E.2d 259, 264, 15 Ill. 2d 227 (12

Boyd v. Racine Currency, 81 Ill. App. 2d 140, 146 ........ 8

Buchalter v. New York, 319 U.S. 427, 87 L.Ed. 1492,

a in. BIR acon Nine ecards lphanaatcein enbinsaaiieed 22

Berna wi: Peet, 20 Th: BOG ans ssn hls 18

Button v. Wakelin, 15 P 2d 956, 41 Ariz. 84 0000... -

Citizens Savings v. Otto, 240 Ill. App. 567 0... 13

Citizens Savings and Loan v. Fisher, 214 N.E.2d 612,

Or dee ee OP ee a ee a ee 13

Diversey v. Neunkirchen, 370 Ill. 523, 19 N.E. 2d 363,

120 ALR 13965 .................. ; si 24

Dyreson v. Hughes, 76 N.E. 2d 809, 333 Ill. App. 1968... 14

Duncan v. Missouri, Mo. (1894) 145 S. Ct. 152, US 382,

es IE Seas ccincensanipiabpindenseitalectacsitoasnccetnaces NENTS 21

lili

PAGE

Ex Parte Stricker, ec Ky (1901) 109 F. 146 —.00000..... 22

Ex rel. Lawson v. Woodruff (1939) 184 So. 81, 134

BE REE AR ORE ROT en Mie Fk Ot RA Ee 21

Fellheimer v. Weis (1942) 316 Ill. App. 449, 45 N.E.

a a iad 24

Geneva Construction Co. v. Martin Trans., 122 N.E.2d

Se Re SO ol ll econ chicas canininlciainciainianlipndipeiiten 15

Gibbons v. Brandt, 170 F.2d 385, 69 S. Ct. 511, Til. 1948 12

Glicker v. Michigan Liquor Control Comm., CCA Mich.

CE BEE RN MS | co Rachcrhelapsinditieailenpincciteiinentatitdliiclahlasagicas 20

Greguske v. Oyster Bay, 19 Misc. 2d 763, N NS 2d 432 20

Hagar v. Reclamation Dist., 111 US 701, 28 L.Ed. 569,

i Oe CN ce ca gic clin itnnes ns tnebibeen eiloctinsnngs 22

Haines v. Kerner, 92 Sp. Ct. 594, 404 U.S. 819, 30 L Ed

RU IN oa ath ota dang ceeincnnipbincbnedabitigin 9

Hale v. Hale, 15 Ill. Dee. 85, 373 N E.2d 431 (1978) ...... 12

In Re Goldsworthy, 148 ALR 722, 45 NM 406, 115 P.2d

Ge Rag ARATE RRE RE IRSCSR ESSE Te Bene eee ea 18

In Re Heals Estate, 300 NYS 103, 110, 165 Mise. 46... 20

In Re Mourand, 83 F.2d 728 ............ ESOL AST eer eNOS 9

In Re Estate of Newman, 86 Nev. 151, 465 P 2d 616 .... 16

In Re Palmer’s Adm’s v. Mead, Conn. 149 —....0....... 20

Jackson v. Jackson, 14 N.E.2d 271, 294 Ill. App. 552 .... 15

’ J. J. Harrington v. Temmerman (1977) 8 Ill. App. 2d

483, 50 Ill. App. 3d 404, 365 N.B.2d 721 -W200... 8

Johnson v. Girvin, 61 Ill. App. 2d 47, 54 .0 2... 8

Kilmer v. Parrish, 144 Ill. App. 292 (1957) -....0......... 14

iv

PAGE

Kirkman v. Hamilton, 6 Pet. (U.S.) 20, 8 L.Ed. 306 ....

Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48 ...........

Lamonte v. Bellville, 41 Ill. App. 3d 697, 355 N.E.2d

CODE: ckcecnitechcenditipcnilaliicb lata i iia SET NO SS

Langnes v. Green, 282 U.S. 531, 75 L. Ed. 520 2.000...

Louis v. Barenfager (1967) 81 Ill. App. 2d 488, 218 N.E.

DE UD cnsccinsisisbcscnstcnintinbaebptenctateiciltanitidas daa ee ce Sd,

MacKenna v. i (1960) 7, Oe We Oe scriiaccees

Milkwagon Driver's Union of Chi. Local 753 v. Meadow-

moor Dairy, 619S.Ct. 552, 312 U.S. 287, 85 L.Ed.

Nelson v. Barker, Fed. Cas. No. 10, 101, 3 McLean 379

Payne v. Ostrus, Ca. 8, 50 F.2d 1039, 77 ALR 531 ........

People v. Schoos (1948) 399 Ill. 527, 78 N.E. 2d ALR

DO on cicte renee hnivsicnidinnineecgi catia ane aie

rE Cea TENE RMS ee oy. AMR Malas Cee

Rogers v. New York C. & St. L. Rwy. Co. (1946) 65

N.E. 2d 243, 328 IL App. 128 .......0..2..0..2 2.x...

Sabeth v. Handler Co., (1962) 102 Ill. App. 218, 234

NRE TOD Ni gascpnetcipnticnnichiltssts create aia ial

Schreiner v. City of Chi. (1970) 495 Ill. 617, 32 N.B.2d

BD ..iicisies einen nea fenton Geniincanistiinnl

Smith v. Niemann, 216 Ill. App. 179 20...

Snively v. Crownover (1947) 53 N.E.2d 321 Ill. App.

SD CE Po ar heviicinctethiecsncettnnidiies icotiane

Dayton wv. Maton © Baie. Ge sock pital

‘ilies ne

v

PAGE

Thomas v. Gouwens, 25 Ill. App. 3d 663, 323 N.H.2d

FE I i sisal eatsicniscadinmmnsio’ 15

U.S. v. Kern, DO NY, 8 F Supp. 296 .....22............:ceceeee 18

Wagner v. Anna, 296 N.E. 2d 589, 591, Ill. App. 3d 316 24

White v. Prenzler, 7 Ill. 2d 624, 131 N.H.2d 540, 543

TINIE pnecstalibslousccetntsccanhibsetbhemnpuaneticinemannapppiabiiantinibsetesstotes 12

Williams v. Comm. Nat. Bank, 49 Or. 492, 90 P 1012,

ON ca a ceeinhneviinncgudiniianonniniionene 10

Winger v. Chicago City Bank, 325 Ill. App. 459, 60

SRI I a sch ceca ininemsisonce 13

Yick Wo v. Hopkins, 118 U.S. 356, 30 L Hd. 220, 6 S. Ct.

a Loh od alideneislanasdiicbenseasebiigs 21

Iu the

Supreme Court of the United States

OctfoserR Term, 1979

No.

BETTY SANDER HAxVEY,

Petitioner,

vB.

HARRIS TRUST & SAVINGS BANK,

a Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ILLINOIS

Petitioner prays that a Writ of Certiorari be issued to

review the judgment of the Appellate Court of Illinois,

First Division entered in this case on June 4, 1979 (Ap-

pendix A), and orders of the Circuit Court of Cook County,

Illinois entered June 22, 1977 (Appendix C), and November

22, 1977 (Appendix [).

OPINION BELOW

The opinion below has been published in part, and may be

found at 73 Ill. App. 3d 280; 391 N.E. 2d 461 and is re-

printed herein as Appendix A.

2

JURISDICTION

The judgment of the Appellate Court of Illinois, First

District (Appendix A) was entered on June 4, 1979. Peti-

tioner’s Petition for Rehearing was denied (Appendix K)

on July 9, 1979. Petitioner filed a Petition for Appeal as

Matter of Right, or in the alternative Petition for Leave

to Appeal to the Supreme Court of the State of Illinois,

which was denied October 1, 1979 (App. J). This petition

is filed within 90 days of the final order of the Supreme

Court of the State of Illinois. The jurisdiction of this

court is invoked under 28 U.S.C. 1257 (3).

HISTORY OF THE CASE

Your petitioner filed suit +76L 20780 (Harvey v. Harris),

with a jury;demand (App. L) in the Circuit Court of Cook

County, Chicago, Illinois, on November 12, 1976, alleging

breach of testamentary trust. Harris filed a Motion to

Strike and Dismiss whici was granted June 22, 1977. Mo-

tion to Vacate and Petition for Leave to Amend was denied

on November 23, 1977 (Appendix I.) The dismissal was af-

firmed on June 4, 1979 in the Appellate Court of the State

of Illinois, First District (Harvey v. Harris,) 78-322.

Petition for Rehearing (Harvey v. Harris #52313) was

denied on July 9, 1979, no opinion rendered. Petition for

Leave to Appeal to the Supreme Court of the State of

Illinois was denied on October 1, 1979, the Mandate being

entered on October 24, 1979.

3

ISSUES PRESENTED FOR REVIEW

xe

Is there any evidence which furnishes a legal and sub-

stantial basis for the dismissal of petitioner’s complaint

by the trial court and for the affirmation of such dismissgl

by the Appellate Court, or have such courts acted illegally?

II

Have the rights of due process and equal justice guar-

anteed to all citizens of the United States of America un-

der U. S. Constitution Amendment 14 (1) been denied to

petitioner by the very courts which are mandated to pro-

tect such rights?

Ii

Has petitioner wrongfully been denied her Right of

Trial by Jury guaranteed to all citizens of the United

States under U. S. Constitution Amendment 7 through the

baseless and unwarranted dismissal of her complaint, by

the very courts which are mandated to uphold such right?

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the U. S. Constitution

provides in pertinent part:

‘¢. . . nor shall any state deprive any person of

... property ... without due process of law; nor deny

any person within its jurisdiction the equal protection

of the laws.’’

The Seventh Amendment to the U. S. Constitution prce-

vides in pertinent part:

‘‘TIn suits at common law, where the value in contro-

versey shall exceed twenty dollars, the right of trial by

jury shall be preserved... .’’

4

STATUTES INVOLVED

Tilinois Revised Statutes, Chapter 83, Sec. 16 reads in

pertinent part:

‘*. .. actions on unwritten contracts, expressed or im-

plied . . . shall be commenced within five years next

after cause of action accrued.’’

Illinois Revised Statutes, Chapter 83, Sec. 17, reads in

pertinent part:

‘¢ ., Actions on written contracts ... or other indebt-

edness in writing shall be commenced within ten years

next after cause of action accrued.’’

Illinois Revised Statute, Chapter 83, Sec. 23 reads in

pertinent part:

‘¢. .. if a person liable to an action fraudulently con-

ceals the cause of action from person entitled there-

to, the action may be commenced at any time within

five years after person entitled to bring same dis-

covers that he has such cause of action.’’

Illinois Revised Statute, Chapter 110, Sec. 42 (2) reads

in pertinent part:

‘¢. .. No pleading is bad in substance which contains

such information as reasonably informs the opposite

party of the claim or defense which he is called upon

to meet.”’

Illinois Revised Statute, Chapter 110, Sec. 46 (1) reads

in pertinent part:

‘*. .. At any time before final judgment amendments

may be allowed on just and reasonable terms... .’’

Illinois Revised Statute, Chapter 110, Sec. 48 (3) states

in pertinent part:

‘*. .. In a motion to Dismiss .. . if a material and

genuine disputed question of fact is raised the court...

shall so deny (motion), if the action is one at law and

a jury demand has been filed by the opposite party in

apt time.’’

STATEMENT OF THE CASE

Petitioner has been seeking recourse from the wrongful

acts of defendant the nominated executor-trustee of her

late father’s estate, for nearly nine years. Each lawyer

she retained has refused and failed to act on her behalf

and has instead worked to protect this powerful bank.

On November 12, 1976 petitioner filed complaint 76L20780

pro-se along with a jury demand, being well aware that her

only hope for justice lay in a jury hearing. Harris filed

a motion to dismiss along with affidavits. Such motion

should have failed since it did not conform to statutory re-

quirements and affidavits did not support the motion. At-

torney Donald Brewer volunteered to represent petitioner

in this matter on November 24, 1976, but instead acted as

had petitioner’s previous lawyers. On June 22, 1977 the

Circuit Court of Cook County entered an order dismissing

complaint, listing seven points, not one of which was valid

basis for dismissal.

Petitioner’s motion to vacate and amend was denied.

Thus her cause of action which was properly governed by

the 10 year statute was barred by the 5 year statute and her

pro se complaint was disposed of without a single amend-

ment and no jury hearing. After filing appeal 78-322

Brewer, unbeknown to petitioner did not raise the real

statutory issue on appeal, nor keep petitioner appraiser

of the status of her case and refused to communicate with

her. On February 10, 1979 petitioner dismissed Brewer.

Two weeks later she learned Brewer had not withdrawn

and oral argument was scheduled for March 12, 1979. On

that day, the court granted petitioner’s motion to remove

Brewer but refused to extend the time for oral argument.

Petitioner was obliged to argue the matter instanter with

no preparation or records. Further petitioner submits she

was prevented from pursuing her argument logically due

to the constant interruption by the court, raising irrelevant

matters.

6

In argument, defendant set forth three premises, each

of which was without merit, yet the Appellate Court af-

firmed dismissal of petitioner’s complaint. The opinion

reflects that such court disregarded all of petitioner’s oral

argument which under the circumstances of Brewer’s fail-

ure to raise the proper statutory matter, and his removal

was crucial. The Appellate Court denied petition for re-

hearing on July 9, 1979. The Illinois Supreme Court de-

nied petition for leave to appeal on November 1, 1979.

RAISING THE FEDERAL QUESTIONS

Constitutional questions were raised as follows. (1.)

Question of due process was raised in the original com-

plaint when plaintiff alleged that Harris had failed to

give notice of their intent to decline and renounce as execu-

tor. (2.) In the petition for rehearing, petitioner raised

the issue of breach of rights guaranteed her under U. S.

Constitution—Amendments 7 and 14, by the unwarranted

dismissal of her complaint. (3.) In Petition for Appeal as

matter of right or in Alternative Petition for leave to Ap-

peal to the Supreme Court of the state of Illinois, Peti-

tioner raised five constitutional issues concerning breach

of her Civil Rights: (a.) That the trial court had applied

one standard of law to her and a different one to defendant

in violation of the equal protection clause of U. S. Consti-

tutional Amendment 14, (b.) that by its baseless dismissal

of her complaint the court had denied petitioner her right

to remedy and justice provided for in Ill. Const. Article 1

Sec. 12. (c.) that the court by its unwarranted dismissal of

her complaint filed for jury, denied her U. S. constitution

Amendment 7 right to trial by Jury (d.) that the court’s

action in wrongfully applying the statute of limitations

jeopardizes the due process and equal protection of thou-

sands of Americans by establishing false case law . . . and

undermining the framework of the system of justice.

7

Petitioner apologizes to this court for her pro-se status

and respectfully asks this court’s forbearance. Petitioner

respectfully submits that self-representation is not by

choice but by necessity. In her nearly 9 year struggle for

justice petitioner has retained 8 lawyers and has inter-

viewed more than fifty others seeking help. She has ex-

hausted all possible sources of legal assistance and recourse

as well as her finances. Petitioner has no legal education

but diligently pursues knowledge in the law libraries, hop-

ing to preserve her right to redress in the courts, because

she had a deep and abiding faith in the American system

of justice.

REASONS FOR GRANTING THE WRIT

I,

CERTIORARI SHOULD BE GRANTED TO REVIEW

THE FINDINGS AND ACTS OF THE TRIAL AND

APPELLATE COURTS TO ASCERTAIN WHETHER

THE EVIDENCE FURNISHES ANY LEGAL AND SUB-

STANTIAL BASIS FOR THEIR DECISIONS IN DIS-

MISSING PETITIONER’S COMPLAINT AND AFFIRM-

ING SUCH DISMISSAL.

It is well se.led that ‘‘dismissal of a party’s action is

a drastic punishment and should not be invoked except in

cases where party shows deliberate disregard of the court’s

authority’’ 16 Ill. Law & Prac. § 31, p. 394. The record

plainly reflects plaintiff never showed a disregard for the

court’s authority. ‘‘Motion to Dismiss admits all facts

well pleaded and a cause of action should not be dismissed

unless it clearly appears that no set of facts can be proved

under pleadings which will entitle plaintiff to recovery.’’

16 Ill. Law Prac. § 43 p. 413. Fed. Rules of Civ. Proc.

rule 12-b 28 USCA, Louis v. Barenfager (1967) 81 Ill. App.

2d 488, 218 N.E. 2d 823, J. J. Harrimgton v. Temmerman

(1977) 8 Ill. App. 2d 483, 50 Ill. App. 3d 404, 365 N.E. 2d

721. Petitioner’s complaint clearly shows on its facts that

she could recover, (Appendix B) ‘‘On Motion to Dismiss

every intendment and fair in*erence is in favor of plead-

ing and if under any aspect uf facts stated, the plaintiff

could recover the motion should be denied.’’ Johnson v.

Girvim, 61 Tll. App. 2d 47, 54, Boyd v. Racine Currency, 81

Tll., App. 2d 140, 146. In the instant case all intendments

were in favor of defendant. It is further settled that ‘‘ plead-

ings must be liberally construed, ... and the court look to

substance rather than form when examining pleadings’’.

9

In Re Mourand, 83 F. 2d 728. The Trial court failed to do

this just as they failed to consider that ‘‘No pleading is

bad in substance which . . . informs the opposite party of

the nature of the claim or defense he is called upon to

meet.’’ Ill. Rev. Stat. ch. 110 § 42 (2). Defendant acknow]l-

edged the action as breach of testamentary trust. Further

‘‘the complaint of a pro se plaintiff should be held to less

stringent standards than one drafted by an attorney.”’

Hames v. Kerner, 92 Sp. Ct. 594, 596, 404 U.S. 519, 30 L

Ed 2d 652 (1972)

All of the above principles reflect the impropriety of

the Dismissal of petitioner’s complaint. Examination of

the Order of Dismissal confirms there is no justification in

‘fact or law for dismissal.

Although the Motion to Dismiss contained ten allegations

the trial court made only seven findings (Appendix C.)

To wit: (1.) Harris never accepted or qualified as executor

(2.) Harris never accepted or acted as trustee, (3.) Harris .

accepted the assets under section 6-4, Ill. Pro. Act and pre-

served them, (4.) the widow renounced the will, (5.) As-

sets were distributed 14 each in accordance with probate

act. (6.) The statute of limitations Sec. 16 Oral contracts

bars this action (7.) Allegations of complaint are insuffi-

cient to sustain cause of action.

In examining these findings it is apparent that 1, 2, 3,

are improper rulings, in that a motion to dismiss admits

all facts well pleaded (Infra) and these findngs falsely and

wrongfully controvert the allegations in complaint (Ap-

pendix B Par. 5, 7, through 14). Further, disputed issues

of fact are for a jury. Findings 4 and 5 while true in content

only screen reality. Finding 4 ‘‘that the widow renounced,’’

and 5 ‘‘that the assets were distributed %4 each in keeping

with the probate act’’ were interjected to make it appear

10

that such renunciation invalidated the trust, resulting in

proper 14 distribution. However, decedent’s will specifi-

cally provided otherwise (Appendix D). This fact was

brought before the court in hearing on June 22, 1977.

‘‘Mr. Brewer: The will very explicitly said in case

my wife predeceased me... (the legal effect of re-

nunciation) then the items under the will and trust will

go as set forth in... sec. 2, Clause 3 as my will pro-

vides. So it does, that fine, she renounced, but there is

still a trust because the will very explicitiy sets forth

so.’’ (Appendix E pp. 21, 22)

It provided for distribution to Sander’s daughters, 14 each.

(Appendix D) Findings 6, ‘‘that the complaint fails to

state a cause of action’’ and 7 ‘‘that the complaint was

barred by Ill. Rev. Stat. 16... oral contracts’’ are incom-

patible, since ‘‘statute of limitations can never become op-

erative until there is a cause of action to which it may be

applied.’’ Williams v. Comm. Nat. Bank, 49 Or. 492, 90 P

1012, 91 P 443, Taylor v. Miles, 5 Kan. 493. In its opinion the

appellate court stated ‘‘ Betty Sander Harvey alleged in her

complaint that defendant accepted appointment . .-. as

executor-trustee . . . further that defendant breached the

testamentary trust.’’ (Appendix A p. 4 par. 3). If the Ap-

pellate Court so clearly understood the action to be breach

of testamentary trust, would not logic indicate that the

trial court did also since they applied a statute against it?

We must then conclude that a single reason remains for

dismissal. To wit: the 5 -ear statute of limitations, Ch. 83

$ 16. Was the application founded in law?

The complaint alleges breach of testamentary trust...

a written document. Appendix B p. 1 ‘‘Sander executed a

4 page written document ... wherein he did bequeath...

all of his residuary estate to... be held in trust.’’ p. 8 ‘‘as

a result of defendant’s breach of trust ...’’

eo

11

Illinois Revised Stat. ch. 83, Sec. 17 provides:

‘*Actions on ... written contracts ... or other indebt-

edness in writing shall be commenced within 10 years

next after cause of action accrued.”’

Petitioner’s complaint was filed on Nov. 12, 1976. Sander

died Jan._16, 1970 there could be no possible accrual until

after that date. It is apparent that Sec. 17 is the appli-

cable Section of Limitations and that the complaint was

filed timely. There is no justification for the dismissal

order of the trial court.

In his motion to vacate, petitioner’s attorney instead of

acting in the interest of his client, and raising the matter

of the ten year statute, interjected the issue of fraudulent

concealment, as well as whether the trial court abused its

discretion by denying petitioner’s attorney the right to

amend the pro-se complaint. Although both issues are

valid, they obfuscate the true issue... the 10 year statute.

The court should not have ruled upon the matter of con.

cealment, as it was an issue of fact for a jury.

Since the extra issues were raised and ruled upon by the

trial court, three issues were before the Appellate court to

wit: (1) whether the 5 year statute of limitations could be

invoked to dismiss the complaint. (2.) Whether fraudulent

concealment tolled the statute, (3) whether the court abused

its discretion in denying plaintiff’s attorney the right to

amend the pro-se complaint.

In examining the Appellate opinion it is difficult to as-

certain just what is obiter dicta and what are findings. The

court chose to comment on all ten allegations of Motion to

Dismiss when three had not been ruled upon, and therefore

were not properly before the court, and to review, (improp-

erly) the entire probate proceedings. Further the court in

its opinion made more than 20 false or seriously mislead-

12

ing statements, designed only to obfuscate the issues and

frustrate review. (Appendix F, Petition for Appeal pp. 25-

33) Putting aside the dicta it appears that the Appellate

court held: (I) the statute was not tolled by fraudulent

concealment, (II) that they were unable to review the

soundness of the trial court’s denial of Motion to amend

(III) that it was unnecessary to determine whether or not

a trust relationship existed. (IV) that the complaint was

barred by Ill. Rev. St. ch. 83, Sec. 16. We will examine

these individually.

(I) Ill. Rev. Stat. Ch. 83 Sec. 23 provides:

‘*Tf a person liable to an action fraudulently conceals

the cause of action from person entitled thereto, the

action may be commenced at any time within 5 years

after person entitled to bring same discovers that he

has such cause of action.’’

In that regard the appellate court’s Opinion set forth the

following misrepresentations (Appendix A p. 8): (a.)

‘‘Acts or misrepresentations affirmatively showing fraudu-

lent concealment by defendant which prevented plaintiff

from discovering she had cause of action, must be alleged.’’

The court errs. The case at bar concerns a trust relation-

ship and ‘‘it has been settled that failure to discover is

excused when parties are in a relationship to trust’’. An-

derson v. Laybeck, 145 N.E. 2d, White v. Prenzler, 7 Til. 2d

624, 131 N.E. 2d 540, 543 (1956) (b.) ‘‘Defendant must have

made representations or performed acts known by it to be

false, with intent to deceive plaintiff on which plaintiff re-

lied .. .’? Again the court errs. It is well established that

‘Fraud which tolls the statute can be mere silence.’’ Sa-

beth v. Handler Co (1962) 102 Ill. App. 218, 234 N.EB. 2d

738, Gibbons v. Brandt, 170 F. 2d 385, 69 S. Ct. 511, Ill.

1948, Hale v. Hale, 15 Ill. Dec. 85, 373 N.E. 2d 431 (1978).

... Assuming arguendo that representations and acts were

ee

13

necessary, such are clearly set forth in Complaint p. 4 par.

13, p. 15 par. 16, 17, p. 6 par. 18, 19. (Appendix B.) There

are six allegations of concealment yet the appellate court

states ‘‘we can find nothing in the record which would

suggest defendant made representations or performed

acts which fraudulently concealed a cause of action.’’

(c.) ‘‘When party affected by fraud might have dis-

covered it with ordinary diligence section 23 does not

come into play’’ Again the court errs. ‘‘failure to discover

fraud is excused where there is relationship of trust and

confidence and duty is imposed on trustee to disclose the

truth. In such cases running of the statute arises when

fraud is discovered.’’ Anderson v. Laybeck, Winger v. Chi-

cago City Bank, 325 Ill. App. 459, 60 N.E. 2d 560, 572, fur-

ther, ‘‘fraud may be predicated on false representations

and concealments although the truth could have been as-

certained by examination of public records’’ Citizens Sav-

ings and Loan v. Fisher, 214 N.E. 2d 612, 67 Ill. App. 29.

And ‘Negligence cannot be imputed to a defrauded party

so that he who commits fraud cannot escape liability. Smith

v. Niemann, 216 Ill. App. 179, Citizens Savings v. Otto, 240

Til. App. 567. Again ‘‘question of concealment within the

meaning of an exception to statute is proper one for the

jury.’ Kurry v. Frost, 204 Ark. 386, 162 S. W. 2d 48, Anno-

tation 10 ALR 2d 564, 565. By reason of the aforegoing

the Appellate court clearly erred in determining that fraud-

ulent concealment would not toll the statute. Its decision

conflicts not only with opinions of other appellate courts

but with those of this court.

(II) The second finding, that the Appellate court was

unable to determine the soundness of trial court’s denial

of Plaintiff’s counsel’s motion to file an amended complaint

... is an enigma, since the court ascribes their inability to

render a decision, to the failure of petitioner’s counsel to

14

include a copy of the proposed amended complaint in the

record. Under other circumstances such reason may be

valid, but surely not when the original complaint was pro

se.

The right to amend is an inherent right in Dlinois courts.

Ill. Rev. Stat. (1975) Ch. 110 § 46 (1) provides:

‘‘At any time before final judgment amendments may

be allowed on just and reasonable terms, introducing

any party... as plaintiff or defendant, discontinuing

any plaintiff or defendant, changing cause of action

or defense or adding new causes of action or defense

- . any proceedings which may enable plaintiff to

sustain the claim for which it was intended to be

brought, or the defendant to make a defense or assert

a cross demand.’’

If such liberality in amending is allowed generally, surely

a pro se complaint should be allowed amendment. In

Haines v. Kerner (infra), this court mandated that pro se

complaints should be held to less stringent standards, but

the appellate court by denying amendment held pro se

complaint to ‘‘more.’’

The principle of amending is rooted in common law 229

ce. C. Ill. 844, which permitted amendments to pleadings if

there was anything to amend.’’ Nelson v. Barker, Fed. Cas.

No, 10, 101, 3 McLean 379.

In Lamonte v. Bellville, 41 Ill. App. 3d 697, 355 N. EB. 2d

70, 71 it was held that: Amendments should be liberally al-

lowed to save rights and advance justice. This principle

has been vigorously upheld by Appellate courts. Kilmer v.

Parrish, 144 Ill. App. 279, Snively v. Crownover (1947) 53

N. E. 2d 321 Ill. App. 292 (1957), Dyreson v.. Hughes, 76

N.E. 2d 809, 333 Ill. App. 1968.

15

In Geneva Construction Co. v. Martin Trans., the court

stated: ‘‘The Civil practice Section pertinent to amend-

ment of pleadings is the culmination of legislative efforts

to enact a provision under which relation back of amended

pleading will be governed by considerations of fairness to

litigants rather than technical considerations.’’ Far from

allowing amendment for fairness, the trial court discour-

aged it. In fact the trial court specifically requested that

no amended complaint be filed until after final judgment.

Report of Proceedings, Motion to Vacate, confirms:

Mr. Brewer: ‘My client filed this complaint ini-

tially pro se. I believe I told your Honor that back

some months ago when I asked leave to file an amend-

ed complaint ... you said at that time you would

rather wait until after we have decided this motion.’’

Petitioner concedes that although the right to amend is

well established, it may still lie within the court’s discre-

tion. Yet, ‘‘even where decision is placed in discretion of

the court, the exercise of that discretion must be a sound

one.’’ Langnes v. Green, 282 U.S. 531, 75 L. Ed. 520. The

principle of amending is so sacred courts have held

‘‘Amendments may be made after verdict or judgment to

conform pleadings and proof.’’ Rogers v. New York C. &

St. L. Rwy. Co. (1946) 65 N.E. 2d 243, 328 Ill. App. 123.

In the case at bar, amendment was essential to make pleas-

ing conform with proof because, inter alia, when petitioner

filed such complaint she had not yet discovered the well

concealed fact that defendant had not renounced as trustee.

In Thomas v. Gouwens, 25 Ill. App. 3d 663, 323 N.E. 2d

829, 831, and Jackson v. Jackson, 14 N.E, 2d 271, 294 Ill.

App. 552 it was determined ‘‘Refusal of an amendment

which is germane to the original bill and presented for

purposes of making the allegations of bill comply with

proof, is an abuse of the trial court’s discretion.’’ The Ap-

16

pellate court’s argument, that they could not determine

the issue because they did not have a copy of the Amended

complaint is absurd. Does that court truly believe a pro-se

petition would not improve with a lawyer’s amendment?

This is tantamount to declaring that lawyers have no more

knowledge or ability in matters of law than laypersons.

Does this not make a travesty of the system of justice and

the honorable profession of law?

Clearly there was no basis in law or in fact for this

finding.

(III.) The Appellate court’s finding that ‘‘it was un-

necessary to determine the question of whether a trust re-

lationship existed, since any such relationship terminated

when plaintiff was informed of defendant’s renunciation

as executor trustee’’ is, of course, a determination in itself.

And it is an improper one because it sanctions the im-

proper act of the trial court in determining an issue of

fact in a Motion to dismiss. The issue was for jury 51

Am Jur 2d 488. The Appellate court is ingeniously deceit-

ful, . . . stating ‘‘when plaintiff was informed of defen-

dant’s renunciation”’ me did not renounce as Trus-

tee. (Appendix G) The fact that petitioner was informed

that it did, and that it fraudulently concealed the fact that

it did not, until after this complaint was filed, does not

excuse its fraudulently concealed breach of trust, nor dis-

solve the trust relationship. ‘‘ Renunciation of a trust can

be only by resignation with court approval, or with agree-

ment of the beneficiaries on satisfaction of all legal liabili-

ties to beneficiaries.’’ 76 AmJur 2d Ch 128 § 308 and ‘‘De-

clinatiow or refusal of a trust does not operate to defeat

or void the trust.’’ Re Estate of Newman, 86 Nev. 151, 465

P 2d 616. When this finding ‘‘that the relationship termi-

nated when defendant renounced, ‘‘is read in conjunction

with a previous misleading statement in the opinion (Ap-

*

17

pendix A p. 4) ‘‘(Petitioner ... alleged . . . defendant

breached the testamentary trust when it filed a renuncia-

tion of its appointment’’ it is apparent that once again

the court is screening reality to justify the Dismissal by

the five year statute. (note the court does not specify what

appointment.) As herebefore set forth it renounced as exe-

cutor only. (Appendix G) The fact is, petitioner did not

allege ‘‘breach through renunciation,’’ but clearly sets

forth the acts performed. (Appendix B, Par. 15 through

20). Petitioner readily acknowledges that her complaint

states ‘‘defendant renounced as trustee.’’ The fact that it

did not, was not discovered by plaintiff until December,

1976. The misconception was to be cured with Amendment,

which was denied. But Petitioner argued the matter in

oral argument Appendix H-2. The issue however is a moot

one in regard to preservation or sufficiency of petitioner’s

complaint. Whether or not defendant resigned does not

mitigate its breach of trust nor diminish its liability.

The finding is a non-sequitor however since if no,trust

relationship existed contrary to allegations in complaint,

the complaint could not be dismissed by statute. Williams

v. Comm. Nat. Bank, Taylor v. Miles. (Infra)

We must conclude then, if the appellate Court found it

unnecessary to determine the trust issue, the entire opinion

is a nullity, because the cause of action is Breach of testa-

mentary trust, and failure to determine the issue of the

relationship makes it impossible to justify dismissal by

any fact or law.

(IV) The conclusion of the Appellate court that ‘‘plain-

tiff’s complaint was filed November 12, 1976, over five

years after all pertinent events in this action transpired,

the suit is barred. See Ill. Rev. Stat. (1975) ch. 83 Sec. 16’’

is erroneous. Not once in its opinion does the court recite

Sec. 16, which provides:

ee

18

‘*. .. actions on unwritten contracts, expressed or im-

plied . . . shall be commenced within five years next

after cause of action accrued.’’

In its opinion the court acknowledged cause of action as

‘‘breach of testamentary trust.’’ (Appendix A p. 4 par. 3).

It cannot be disputed that a testamentary trust is a written

document (Appendix D). Ill. Rev. Stat. (1975) Ch. 83 Sec.

17 provides ten years in which an action on a written docu-

ment can be brought. There is no justification for applying

Ch. 83 Sec. 16. Further, fraudulent concealment was al-

leged tolling the statute. (Ill. Rev. Stat. Ch. 83, Sec. 23)

It is well settled that ‘‘a pleading which sets off statute

which is not applicable to cause of action to which statute

is interposed is bad . .”’ 54 CJS § 361 (b) and ‘‘where a

shorter period of limitations than the one applicable to

‘ase is pleaded, the plea is lost.’’ Button v. Wakelin, 15

? 2d 956, 41 Ariz. 84. Yet the trial court preserved the plea

and sanctioned it as did the Appellate court.

There was no justification for barring the complaint by

any statute since ‘‘defense of Limitations cannot be raised

in motion to Dismiss.’’ Burnap v. Wight, 14 Ill. 303. Fur-

ther Motion to Dismiss on plea of statute of limitations

should be denied as to an action which complaint did not

definitely fix date of accrual of cause of action’’ U. 8. v.

Kern, DC Ny, 8 F Supp. 296. Such date was not fixed

(Appendix B) as acknowledged by the court: ‘‘We should

note, plaintiff failed to indicate when she acquired knowl-

edge of the alleged concealed cause of action to commence

running of statute.’’ (Appendix A p. 8, par. 3)

‘“The law favors the right of action rather than the right

of limitation.’’ Re Goldsworthy, 148 ALR 722, 45 NM 406,

115 P2d 627. And ‘‘if there is any doubt as to which

of two statutes apply the longer rather than shorter is

preferred.’’ Payne v. Ostrus, Ca. 8 50 F.2d 1039, 77 ALR

531. Petitioner conceded that her attorney did not properly

19

bring this issue before the court, yet respectfully submits

there could be no question of the correct statute when

petitioner argued the point vigorously (Appendix H-1 Re-

port of Proceedings) concluding: ‘‘the point is there was

a will and trust, it was a written contract, and that carries

a ten year statute.’’

It is well established that a ‘‘statute of limitations ap-

plies only to the particular actions which it recites and no

others, and the court cannot under guise of construction,

apply statute of limitations to cases not within statutory

provisions.’’ Kirkman v. Hamilton, 6 Pet. (U.S.) 20, 8

L.Ed. 305. Yet the court in the case at bar did just that.

In reviewing the decisions of the lower courts it is ap-

parent that the above well established principles of law

were overlooked. Yet even if all of the foregoing were

not to be considered, there is still no conceivable justifica-

tion for dismissal of petitioner’s Complaint under Il. Rev.

Stat. Ch. 83, Sec. 16, because ‘‘Express trusts are exempt

from the statute of limitations or laches’’ Schreiner v.

City of Chi. (1970) 495 Ill. 617, 32 N.E. 2d 113. There

was no basis in either fact or law for the rulings of the

lower courts.

II

PETITIONER HAS BEEN DENIED HER RIGHT TO

DUE PROCESS AND EQUAL PROTECTION OF THE

LAW PROVIDED UNDER AMENDMENT 14, UNITED

STATES CONSTITUTION, BY THE VERY COURTS

WHICH SHOULD PROTECT SUCH RIGHTS.

Petitioner acknowledges that dismissal by Motion, of a

Complaint filed for jury may not in itself be a denial of due

process and equal protection clauses of Amendment 14.

However when the state court’s rulings are as unsubstanti-

ated as herebefore set forth (infra 7-19) the question of

20

equal protection and due process must come under scrutiny.

“The 14th amendment of the U.S. Constitution forbids a

denial of any fundamental principles of liberty and

justice.’’? 15 AmJur 2d §7. Yet the rulings of both courts

deny fundamental principles of justice because the rulings

are without substantiation in fact or law. They are in-

consistent with the doctrine of Stare Decises which re-

quires that ‘‘law clearly established by a court, should not

be lightly disregarded . . . but should be adhered to.”’

In re Hearles estate, 300 NYS 103, 109, 110, 165 Mise. 46.

*‘The doctrine rests upon the principles that law by which

men are governed should be fixed, definite, and known.’’

Petitioner submits law cannot be known if it is subject to

arbitrary application, as in the case at bar. In re Palmer’s

Adm’s v. Mead, Conn. 149, 157, 158 the court stated:

‘‘Stare Decises is eminently just. If law well established

may be annulled by an opinion, a foundation is laid for

the most restless instability . . . no system of inflexible

adherence to established law can be as pernicious, as cease-

less and interminable fluctuations.’’ In the instant case the

courts overlooked or misapprehended more than 12 provi-

sions of Ill. Statutes, along with supporting case law,

flagrantly disregarding the doctrine of stare decises as well

as the fact that ‘‘the proper function of courts is to admin-

ister justice in accordance with established rules of law.’’

20 Am Jur 2d VI § 64, Greguske v. Oyster Bay, 19 Misc.

2d 763, N NS 2d 432. The lower courts failed to perform

their function or fulfill their purpose. ~

In. Glicker v. Michigan Liquor Control Comm., CCA

Mich. (1947, 160 Fed. 96, the court held: ‘‘The purpose of

U.S. Constitution Amendment 14 Sec. 1 is to secure every

person within states jurisdiction against intentional and

arbitrary discrimination, whether incurred by express

terms of a statute or by its improper execution by the

courts.”’ And this court ruled ‘‘even if the law is fair

21

on its face and impartial in appearance, the14th Amend-

ment is violated, if the law is administered with an evil

eye and an unequal hand so as to make unjust and illegal,

discrimination between persons in similar circumstances.”’

Yick Wo v. Hopkins, 118 U.S. 356, 30 L Ed. 220, 6 S. Ct.

1046. This is a landmark case which has had wide applica-

tion.

On its face Ill. Rev. Stat. ch. 83 Sec. 16 is fair and im-

partial. However when this 5 year siatute is applied to

bar a complaint that is properly governed by the 10 year

statute, it has been administered with an evil eye and un-

equal hand, making unjust and illegal discrimination be-

tween persons in similar circumstances, thereby breaching

Amendment 14. There are approximately 75,000 suits for

breach of contract filed in the Circuit Court of Cook County

each year. Of all those alleging breach of written contract

which petitioner has reviewed she has not found one which

was dismissed on Motion by reason of the statute of limita-

tions Ch. 83, Sec. 16.

In Duncan v. Missouri, Mo. (1894) 145 S. Ct. 152, US

382, 38 L. Ed. 485 this court held that ‘‘equal protection

of the law is secure if the laws operate on all alike so not

to subject the individual to arbitrary exercise of the pow-

ers of government’’.. . ‘‘Such powers include all who ex-

ercise those powers . . whether . . . legislative or judicial.’’

Ez rel. Lawson v. Woodruff (1939) 184 So. 81, 134 Fla. 437.

If the court applied to all other persons who filed suit for

breach of written agreement ... the same law . . Ill. Rev.

Stat. Ch. 83, Sec. 16 . . that was applied to petitioner,

then all such suits would be subject to dismissal five years

before the time provided by the law. Clearly then, the

laws of the state would be a mockery. Of what value is the

statute, Ch. 83, Sec. 17, designed to preserve actions stem-

ming from breach of written documents for ten years, if

22

the courts can intentionally and arbitrarily bar such suits

under the five year statute?

However, if the law provides ten years within which

a cause of action can be brought for breach of written

agreement, as it does, and all others, more than 32,000

yearly in Cook County, Illinois, who bring suit for such

reason are granted the ten years within which to file, as

the records reflect, while petitioner’s suit is dismissed as

barred within five years, it is apparent that petitioner’s

equal protection of the law is denied. ‘‘ When it is apparent

that the same law, or course of procedure would not and

could not lawfully be applied to any other person in the

state under similar circumstances, the equal protection

clause of the law is denied by state courts.’’ Ex Parte

Stricker, cc Ky (1901) 109 F. 145.

In Buchalter v. New York, 319 U.S. 427, 87 L. Ed. 1492,

63 S. Ct. 1129 this court ruled that the ‘‘due process clause

required that action by a state through any of its agencies

must be consistent with fundamental principles of liberty

and justice.’’ Could the courts actions in the instant case

. misrepresenting material facts, deciding other facts

in Motion to Dismiss. . . . intentionally discriminating

against petitioner by barring her suit which was properly

governed by the 10 year statute, by the 5... be consistent

with fundamentals of justice?

Since ‘‘due process of laws means that which the follow-

ing the forms of law is appropriate to the case and just

to the parties to be affected.’’ Hagar v. Reclamation Dist.,

111 US 701, 28 L. Ed. 569, 4 S. Ct. Petitioner submits her

due process has been denied. In MacKemnna v. Ellis (1960)

F’. 2d 592, 595 the court states: ‘‘It is basic to due process

that .. a person have a fair opportunity to tell his story in

a fair trial.. He is entitled to have the effective, whole-

hearted assistance of counsel . . . entitled to have a hearing

guided by a judge who is sensitive to duty of protecting

constitutional rights in all cases.’’

23

Petitioner has had none of these. The trial court mis-

applied the statute of limitations and other well established

principles of law, thus wrongfully dismissing her com-

plaint, denying her a fair opportunity to present her story

in a fair trial to a jury. Petitioner’s attorney refused and

failed to act on her behalf or raise the proper issue of the

ten year statute on appeal necessitating his dismissal.

The court denied time to obtain other counsel, thus denying

petitioner effective wholehearted assistance of counsel.

The trial court decided issues of fact in a motion to dis-

miss, removing them from jury hearing, misapprehended

or misapplied more than 12 statutory provisions, and

denied any and all amendment to a pro se com-

plaint. The Appellate Court sanctioned all of the wrong-

ful acts of the trial court, set forth 20 serious misrepre-

sentations of material fact (Appendix F, pp. 19-34) in

argument, decoying her from the issues. Clearly she did

not have hearings guided by judges who were sensitive to

protecting constitutional rights.

Petitioner respectfully submits her 14th Amendment

Rights were denied by the very courts which should pro-

tect them.

IIT.

PETITIONER HAS BEEN DENIED HER RIGHT TO

JURY TRIAL PROVIDED UNDER U. 8. CONSTITUTION

AMENDMENT 7, BY THE VERY COURTS WHO

SHOULD PROTECT SUCH RIGHTS.

Amendment 7 of the United States Constitution provides

in pertinent part:

‘‘In suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by

jury shall be preserved.”’

24

In the instant case, the value in controversy is well over

$700,000, yet petitioner was deprived of her jury trial

by the unwarranted dismissal of her complaint. It is well

settled that ‘‘if a material question of fact is raised in an

action at law where a jury demand has been filed by the

party in opposition to the Motion to Dismiss, the trial

court must deny the motion.’’ Ill. Rev. Stat. (1975) ch. 110,

Sec. 48 (3) Pennington v. Jones, 46 Ill. App. 3d 65. Penning-

ton is a highly analagous case since it involves a fiduciary

relationship, as well as a pro-se plaintiff.

The right to jury is well established. In Wagner v. Anna,

296 N.E. 2d 589, 591, Ill. App. 3d 316 the court held ‘‘trial

by jury is a constitutional right. Dismissal is not available

on discretion.’’ In People v. Schoos (1948) 399 Ill. 527, 78

N.E. 2d ALR 1096 the court stated: ‘‘ All substantial in-

cidents and consequences which pertain to right of trial

by jury at common law, and its essential features, must be

preserved and its benefits secured to all entitled to the

right.’’

In Fellhewmer v. Weis (1942) 316 Ill. App. 449, 45 N.E.

2d 89 the court ruled: ‘‘Summary judgment may not be

used to impair right to jury trial, and in Diversey v.

Neunkirchen, 370 Ill. 523, 19 N.E. 2d 363, 120 ALR 1395

the court held that: ‘‘the trial of an issue of fact by af-

fidavits on motion to dismiss, would deprive the right to

jury trial.’’ In the case at bar that is precisely what the

court did. Further the affidavits were a nullity since they

did not support the motion. ‘‘ Where statute requires that

certain fact be shown, failure to state the facts requisite to

establish it renders the affidavit ineffectual.’’ Anderson

v. Anderson, 82 N.E. 311, 229 Ill. 538.

In commenting on the 7th Amendment, the Honorable

William O. Douglas and Owen J. Roberts wrote: ‘‘The

framers of the constitution considered the right to jury

trial to be of great significance. Experience has shown that

25

juries bring a quality of mercy and good common sense to

the administration of the laws, when lawyers and judges

forget where justice lies... . for hundreds of years they

have been an important safeguard between man and his

government.’’

Petitioner respectfully submits that she desperately

needs this safeguard.

For nearly 9 years petitioner has been seeking legal re-

dress in this matter through the Courts of Illinois. It

is a monumental task since defendant is a politically and

financially powerful bank, with great influence in the legal

community while petitioner is a mere woman. Petitioner

has had four written contracts with lawyers who have

agreed to sue defendant. They have demanded great sums

of money but have acted only in defendant’s interest. Space

will not permit review of the harassment and discrimina-

tion petitioner has suffered by the courts. As a last resort

petitioner filed this pro-se complaint with jury demand,

aware that her only hope for justice lay with a jury. This

effort too was frustrated by the court’s baseless dismissal,

upheld, improperly, by the Appellate Court. Petitioner

has an abundance of evidence to support the allegations in

her complaint. She asks only that she be given her con-

stitutional right to present it to a jury as Amendment 7

provides. The right was denied by the very courts which

should uphold it.

26

CONCLUSION

Petitioner believes the inferior courts have proceeded

illegally, and have breached her Civil Rights. There is no

other mode provided for reviewing the proceedings. ‘‘The

U. 8. Supreme Court has the ultimate power to search the

records in State Courts where a claim of constitutionality

is effectively made, so that no constitutional freedom, least

of all the guarantees of the Bill of Rights will be defeated

by unsubstantial findings of fact screening reality.’’ USCA

Cont. Amd. 1 et seq. and 14, Milkwagon Driver’s Union of

Chi. Local 753 v. Meadowmoor Dairy, 61 S.C. 552, 312 U.S.

287, 85 L.Ed. 836 ALR 1200.

WHEREFORE, petitioner prays a writ of certiorari be

granted; and, upon consideration of the substance of Peti-

tioner’s argument, the dismissal should be reversed as

repugnant to due process of law.

Respectfully submitted,

Betty Sanper Harvey

834 Monroe Ave.

River Forest, Illinois 60305

Pro Se Petitioner

APPENDIX

ns "

APPENDIX A

First Division

Filed June 4, 1979

78-322

BETTY SANDER HARVEY (a/k/a DAVIS), DOUGLAS

ALAN DAVIS and WILLAM PORTER DAVIS,

Plaintiff s-A ppellants,

vs.

HARRIS TRUST AND SAVINGS BANK,

Defendant-Appellee.

Appeal from the Circuit Court of Cook County.

Honorable Danieu P. Coman, Judge Presiding.

MR. JUSTICE CAMPBELL delivered the opinion of

the court:

This is an appeal taken by the plaintiff from orders

of the circuit court of Cook County granting the defen-

dant’s motion to strike and dismiss the complaint and

denying the plaintiff’s motions for leave to file an amended

complaint and to vacate the dismissal. The issues pre-

sented for review are: (1) whether the trial court abused

its discretion in denying the plaintiff’s motions; and

(2) whether there was sufficient proof of fraudulent con-

cealment of a cause of action by the defendant to serve to

avoid the applicable five-year statute of limitations. We

affirm.

The factual background giving rise to this action is as

follows:

Ernest J. Sander (decedent), died testate on January

16, 1970, survived by Emma Sander, his second wife, and

two daughters, Marjorie Sander and Betty Sander Har-

vey, the plaintiff herein. He was also survived by his

divorced first wife, Mae Sander, the mother of his two

daughters. At the time of his death Ernest J. Sander and

App. 2

his second wife, Emma, resided in Walkerton (Starke

County), Indiana.

The decedent’s will, which was dated December 27,

1955, nominated Chicago National Bank as the executor

and trustee. This bank merged with Harris Trust and

Savings Bank, the defendant herein. The record indicated

that on February 19, 1970, the decedent’s safe deposit box

at Mid-City National Bank was opened. The contents of

the box, which consisted of the decedent’s assets as well

as the aforementioned will, were turned over to the defen-

dant as the nominated executor. The will was filed in the

probate division of the circuit court of Cook County and,

thereafter, transferred to Starke County, Indiana.

The record shows that on April 30, 1970, a conference

was held in the defendant’s offices with the decedent’s

widow, two daughters and their attorneys in attendance.

At this conference the defendant stated that it would not

accept the appointment under the will as the executor and

trustee because of the failure of the decedent’s family to

cooperate with each other, the nature of the assets, and

the potential claims and liabilities that might arise as a

result of such appointment.

On May 4, 1970, Marjorie and Mae Sander opened pro-

bate proceedings by filing a petition for letters of adminis-

tration to collect in the probate division of the circuit

court of Cook County. Mae Sander, the decedent’s first wife,

was appointed administrator to collect in this proceeding.

She filed a motion to order the defendant to turn over

the decedent’s Illinois assets.

On July 13, 1970, the court ordered that this motion

be continued pending the appointment of an administrator

with the will annexed as requested in a petition filed by

Emma Sander in a second Illinois probate proceeding.’

1 Although the exact date of the filing of this petition is unclear,

the record indicates that it occurred shortly after Emma Sander

moved to Illinois on June 15, 1970.

App. 3

1a her petition Emma Sander nominated herself as ad-

ministrator with the will annexed. On July 17, 1970, Betty

and Marjorie Sander filed a cross-petition for letters of

administration with the will annexed in which they nomi-

nated Betty for the appointment and stated under oath

that the defendant refused to accept the nomination as

executor.

Meanwhile, on June 5, 1970, another probate proceeding

was instituted in the circuit court of Starke County, In-

diana. Letters of administration were issued to Emma

Sander and Betty Sander Harvey as co-administrators of

the decedent’s estate. The record shows that on May 6,

1970 the defendant filed a renunciation of its appointment

as executor in the circuit court of Starke County, Indiana.

Subsequently, on July 13, 1970, the defendant filed a re-

nunciation of its appointment as executor in the circuit

court of Cook County.

On September 9, 1970, Emma Sander, by an order of the

circuit court of Cook County, was appointed administra-

tor with the will annexed in the second Illinc.s probate

proceeding. The court then heard the motion raised by Mae

Sander in the first Illinois probate proceeding to order

the defendant to turn over the decedent’s Illinois assets.

This motion was denied. On September 23, 1970, Emma

Sander presented the defendant with a certified copy of

the order appointing her administrator with the will an-

nexed. The defendant then proceeded to deliver the as-

sets of the estate which had come into its possession as

the nominated executor to Emma Sander who in turn pre-

sented the defendant with a receipt. Thereafter, the de-

fendant had no further involvement with the decedent’s as-

sets or his estate.

In closing the first Illinois probate proceedings in con-

junction with her status as administrator to collect, Mae

Sander filed on December 4, 1970 a petition in lieu of a

final accounting. In filing an answer on December 8, 1970,

App. 4

Emma Sander, as administrator with the will annexed in

the second Illinois probate proceeding, stated that she and

the defendant, as the nominated executor, had diligently

collected and preserved the assets belonging to the dece-

dent in Illinois, Iowa and Indiana and, therefore, no fur-

ther action would be necessary to collect said assets.

On May 18, 1971, Betty Sander Harvey and Marjorie

Sander filed a petition for removal and to surcharge Em-

ma Sander as administrator with the will annexed. In

this petition they again stated that tie defendant had

refused to accept the nomination as executor and also

raised various issues charging loss, damage and waste in

connection with the assets of the decedent’s estate. They

further alleged that counsel for Emma Sander had harassed

and threatened them thereby causing a substantial delay

in the opening up of the administration of the estate in

Illinois. They contended that counsel for Emma Sander

had intimidated and threatened the defendant to such an

extent that it refused fo accept the appointment as the

decedent’s executor. On July 2, 1971, they filed an amended

petition for removal and to surcharge Emma Sander in

which they again stated that the defendant had declined to

accept the appointment as executor. The court held in

favor of Emma Sander and denied the petition.

On October 22, 1970, Emma Sander, as the decedent’s

widow, renounced the decedent’s December 27, 1955 will.

The assets of the decedent’s estate were sold and the pro-

ceeds distributed in accordance with the renunciation of

the will. Emma, as the widow, and Betty and Marjorie, as

the decedent’s daughters, were each to receive one-third

of the estate. Pursuant to a May 27, 1971 order in the

second Illinois probate proceeding the first partial distri-

bution of the proceeds was made with the delivery to the

above mentioned individuals of checks dated June 1, 1971,

in the amount of $20,000 each. The record fails to indicate

when the estate of Ernest J. Sander was actually closed.

App. 5

On November 12, 1976 Betty Sander Harvey filed the

present action in the form of a pro se complaint on be-

half of herself and her two sons, Douglas Alan Davis and

William Porter Davis, grandsons of the decedent against

the defendant, Harris Trust and Savings Bank.’ Betty

Sander Harvey, as the sole plaintiff, alleged in her com-

plaint that the defendant had accepted the appointment

under the decedent’s will as executor and trustee. She

further alleged that the defendant had breached the tes-

tamentary trust of the decedent when it filed a renuncia-

tion of its appointment. The plaintiff sought $750,000 in

damages as a result of this alleged breach.

On December 16, 1976, the defendant filed a motion to

strike and dismiss the complaint. It alleged that the

plaintiff’s claims had already been adjudicated in the cir-

cuit court of Cook County in a prior action filed by the

plaintiff against the defendant bank; that the claim as-

serted against the defendant is barred by the determination

of the issues or the opportunity to have such issues deter-

mined in the two aforementioned Illinois probate proceed-

ings; that the claim is barred by the statute of limita-

tions; that the defendant properly took possession of the

decedent’s assets and delivered them to the personal rep-

resentative of the estate; and that the plaintiff did not

state a cause of action against the defendant. The de-

fendant included affidavits and exhibits in support of said

motion. Included was the affidavit of Mr. Abbey Blatt-

berg, an attorney for the defendant, as well as the affidavit

of Mr. Daniel Engstrom, a vice-president of the defendant

bank. The plaintiff did not file any counter-affidavits.

The plaintiff subsequently retained legal counsel and

on February 24, 1977 her attorney filed an appearance

and made a jury demand. On June 22, 1977 the defendant’s

2 No appearance was made by the decedent’s grandsons nor was

an appearance made by an attorney in their behalf. Therefore,

they are not parties to this action.

App. 6

motion to dismiss the complaint with prejudice was sus-

tained by the trial court. In issuing said order the court

held that the defendant never accepted the nomination as

executor or trustee under the will of Ernest J. Sander and

stated further that the defendant properly took possession

of the decedent’s assets and preserved them until they

were turned over to Emma Sander as administrator with

the will annexed. The court also found that the allega-

tions in the complaint were insufficient to sustain a cause

of action and that pursuant to Section 16 of the Limita-

tions Act (Ill. Rev. Stat. 1975, ch. 83, see. 16), the plain-

tiff’s action was time barred.

The plaintiff’s counsel filed a motion, on July 18, 1977,

to vacate the June 22, 1977 order alleging fraudulent con-

cealment of a cause of action by the defendant. A motion

for leave to file an amended complaint was also filed by the

plaintiff’s attorney at that time. The defendant filed a,

response to these motions on October 7, 1977, in which it”

denied that there was a concealment of any cause of ac-

tion. Thereafter, a hearing was had on said motions and

they were denied with prejudice on November 23, 1977.

The plaintiff filed her notice of appeal on December 22,

1977, thus commencing the instant appeal.

The plaintiff initially ascribes error to the trial court’s

refusing to allow her leave to file an amended complaint

and denying her motion to vacate the dismissal. While it

is true that section 4 of the Civil Practice Act (Ill. Rev.

Stat. 1975, ch. 110, par. 4) provides that all sections of the

Act, including the one relating to the amendment of plead-

ings (see Ill. Rev. Stat. 1975, ch. 110, par. 46(1)) be liber-

ally construed, leave to amend the pleadings prior to the

entry of final judgment is within the sound discretion of

the trial court. (Beagley v. Andel (1978), 58 Ill. App. 3d

588, 374 N.E.2d 929; Erzrumly v. Dominick’s Finer Foods

(1977), 50 Tl. App. 3d 359, 365 N.E.2d 684.) <‘‘(T)he

denial of a motion to amend will not be regarded as preju-

App. 7

dicial error unless there has been a manifest abuse of dis-

cretion.’’ (Mundt v. Ragnar Benson, Inc. (1975), 61 Ill.

2d 151, 161, 335 N.E.2d 10; accord, Simon wv. Plotkin (1977),

50 Ill. App. 3d 603, 365 N.E.2d 1022.) It is also well settled

in Illinois that the decision to vacate and set aside judg-

ments rests within the sound discretion of the trial court.

Village of LaGrange Park v. Hess (1928), 332 Ill. 236,

163 N.E. 672; Czyzewski v. Gleeson (1977), 49 Ill. App. 3d

655, 365 N.E.2d 577.

The plaintiff asserts that considering the circumstances

in the instant case it was a manifest abuse of discretion for

the trial court to deny her motions. She asks this court to

apply more lenient procedural standards to pro se litigants

than is generally allowed attorneys. However, the Illinois

Supreme Court in Biggs v. Spader firmly established that

the pro se litigant must comply with the same rules of pro-

cedure required of attorneys. (Biggs v. Spader (1952),

411 Ill. 42, 103 N.E.2d 104; accord, National Bank of

Austin v. First Wisconsin National Bank of Milwaukee

(1977), 53 Ill. App. 3d 482, 368 N.H.2d 119.) Further-

more, although no counsel appeared of record for the plain-

tiff when the case was first filed on November 12, 1976,

counsel was retained and made an appearance and jury

demand on behalf of the plaintiff as early as February

24, 1977. This was four months prior to the hearing on

the defendant’s motion to strike and dismiss the complaint

and nine months before the defendant’s motion to vacate

was argued. It should be reiterated that at no time did

counsel for the plaintiff file any counter-affidavits. “Where

one party files an affidavit and the other party does not

file a counter-affidavit in response, the facts alleged in the

affidavit are taken as true. (Loughman Cabinet Co. v. C.

Iber and Sons, Inc. (1977), 46 Ill. App. 3d 873, 361 N.B.2d

379.) Therefore, the defendant’s uncontroverted affidavits

which accompanied its motion to strike and dismiss the

complaint must be taken as true. Finally, although the

plaintiff’s attorney withdrew prior to oral arguments in

App. 8

this court, he did so in response to the plaintiff’s motion

to discharge and her election to conduct oral arguments in

her own behalf.

The plaintiff’s second contention raised in this appeal is

that she should have been afforded an opportunity to

amend her complaint to show that the defendant had

fraudulently concealed a cause of action. She argues that

her action is not barred by the statute of limitations be-

cause section 23 of the Limitations Act (Ill. Rev. Stat.

1975, ch. 83, par. 23) is applicable in this case. We can-

not agree.

Section 23 of the Limitations Act provides:

‘‘If a person liable to an action fraudulently conceals

the cause of action from the knowledge of the person

entitled thereto, the action may be commenced at any

time within five years after the person entitled tu

bring the same discovers that he has such cause of

action and not afterwards.’’ (Ill. Rev. Stat. 1975,

ch. 83, par. 23.)

Acts or misrepresentations affirmatively showing fraudu-

lent concealment of a cause of action by the defendani

which prevented the plaintiff from discovering she had a

cause of action must be alleged by the party seeking to

avail herself of section 23 of the Limitations Act. (Brain.

erd v. Flannery (1978), 59 Ill. App. 3d 991, 373 N.E.2d 26;

Wilson v. LeFevour (1974), 22 Ill. App. 3d 608, 317 N.E.2d

772.) The defendant must have made representations or

performed acts which were known by it to be false, with

the intent to deceive the plaintiff, and upon which the

plaintiff detrimentally relied. (Wilson; Edwards v. Chi-

cago and Northwestern Railway Company (1967), 79 IIl.

App. 2d 48, 223 N.E.2d 163.) Furthermore, when the

party affected by the fraud might have discovered it with

ordinary diligence section 23 of the Limitations Act does

not come into play. (Bush v. Continenial Casualty Com-

pany (1969), 116 Ill. App. 2d 94, 253 N.E.2d 619.) Finally,

‘*(m)ere silence of the defendant and mere failure on the

App. 9

part of the plaintiff to learn of a cause of action do not

amount to such fraudulent concealment.’’ Chicago Park

District v. Kenroy, Inc. (1978), 58 Ill. App. 3d 879, 887,

374 N.E.2d 670; accord, Bush; Antczak v. Antczak (1965),

61 Ill. App. 2d 404, 209 N.H.2d 838.

Applying these principles to the case at bar, it is evi-

dent that the plaintiff has failed to meet the requirements

imposed by Section 23 of the Limitations Act. We can find

nothing in the record which would suggest that the defen-

dant made representations or performed acts which fraudu-

lently concealed a cause of action from the defendant. The

plaintiff’s claim is premised on the defendant’s failure to

perform an accounting. However, the failure on the part

of the defendant to perform an accounting of the assets

held by it does not by itself constitute fraudu.ent conceal-

ment. (See Kenroy, Inc.; Bush; Antczak.) The plain-

tiff should have requested an accounting.

We should note that the plaintiff failed to indicate when

_ she acquired knowledge of the alleged concealed cause of

action to commence the running of the statute of limita-

tions. In addition, the plaintiff has failed to incorporate

a proposed amended complaint into the record on appeal

alleging facts in support of her claim of fraudulent con-

cealment. Consequently, we are unable to review the

soundness of the trial court’s decision and must assume

that it did not abuse its discretion in denying the plain-

tiff’s motions for leave to amend the complaint and vacate

the dismissal. Lowrey v. Malkowski (1960), 20 Ill. 2d

280, 170 N.E.2d 147, cert. denied (1961), 365 U.S. 879,

6 L.Ed 2d 191, 81 S.Ct. 1029; Ereruwmly v. Dominick’s

Finer Foods (1977), 50 Ill. App. 3d 359, 365 N.E.2d 684.

We find it unnecessary to determine the issue discussed

by both parties as to whether or not a trust relationship

existed between the defendant and the decedent’s estate

because any such relationship which may have existed

—..

App. 10

terminated when the plaintiff became aware of the de-

fendant’s renunciation of its appointment as executor and

trustee. Indeed, there is evidence to suggest that the plain-

tiff was informed of the defendant’s renunciation as early

as April 30, 1970, while she attended a conference being

held in the defendant’s offices. In any event it is clear

that the plaintiff obtained knowledge of the defendant’s

renunciation no later than July 2, 1971 when in filing an

amended petition for removal and to surcharge Emma

Sander she stated under oath that the defendant had de-

clined to accept the appointment. We conclude, therefore,

that since the plaintiff’s complaint was filed on November

12, 1976, over five years after all of the pertinent events

in this action had transpired, -he suit is barred. See

Ill. Rev. Stat. 1975, ch. 83, sec. 16.

We should also note that the plaintiff has not offered

any reason why the matters raised herein could not have

been brought to the attention of the probate court. The

plaintiff was a party to or had a chance to participate in

two Illinois probate proceedings and thus had ample op-

portunity to present all the matters deemed necessary

in that court.

For the foregoing reasons the orders of the circuit court

of Cook County are affirmed.

Affirmed.

GOLDBERG, P.J., and McGLOON, J., concur.

STATE OF ILLINOIS

COUNTY OF COOK

App. 11

APPENDIX B

SS

ee

IN THE CIRCUIT COURT OF COOK COUNTY,

ILLINOIS COUNTY DEPARTMENT, LA'W DIVISION

BETTY SANDER HARVEY (AKA DAVIS), DOUGLAS

ALAN DAVIS, WILLIAM PORTER DAVIS,

Plaintiffs,

v.

HARRIS TRUST AND SAVINGS BANK, an

Illinois Corpora‘ion

Defendant

NO. 76 L 20780

COMPLAINT AT LAW

NOW COME the plaintiffs, BETTY SANDER HARVEY

(AKA DAVIS), DOUGLAS ALAN DAVIS, and WII-

LIAM PORTER DAVIS, and complaining of the defen-

dant, HARRIS TRUST AND SAVINGS BANK, an Illi-

nois corporation, state as follows:

1. That they are heirs of the Estate of Ernest J. San-

der, deceased, which matter has been instituted and is pend-

ing in the Probate Division of the Circuit Court of Cook

County, Illinois, under general +70P5652, Docket 746, Page

551.

2. That during his lifetime, the decedent Ernest J.

Sander did execute a four-page written document, known

as a Last Will and Testament, under date of December

App. 12

27, 1955, wherein he did give, devise, and bequeath all of

his residuary estate to the Chicago National Bank, a Na-

tional Banking Association, as trustee in trust for the

purposes set forth in the aforesaid Last Will and Testa-

ment, and as executor of same.

3. That the said decedent Ernest J. Sander further

provided in his last will and testament that the income

from the trust estate shall be used for the maintenance and

welfare of his wife, Emma Sander, payments to be not less

than $50 per week. Upon the death of said wife ‘‘the trus-

tee shall divide the whole of the capital of such trust estate

then remaining, including all gains and increases of capital

thereof, if any, into two (2) equal parts or shares and shall

convey transfer and pay 1 (one) of such equal shares to

each of my daughters ... In the event of the death of

either daughter ... prior to complete distribution of her

share ... such share or remainder ... shall be distributed

... to her descendants.’’ Betty Sander Harvey (aka Davis)

is the daughter of Ernest J. Sander, deceased, and Douglas

Alan Davis and William Porter Davis are sons of said

Betty Sander Harvey (aka Davis).

4. That thereafter, and prior to the death of the said

decedent, Ernest J. Sander, which date of death is January

16, 1970, the assets of the said Chicago National Bank were

acquired by the defendant, Harris Trust and Savings Bank,

an Illinois corporation, and merged with the assets of said

bank.

5. That through the aforementioned transaction, said

defendants, Harris Trust and Savings Bank, became the

successor of the business of the said Chicago National

Bank, and was responsible for all of its obligations, assets,

and liabilities. Therefore, the defendant, Harris Trust and

Savings Bank, became the executor, trustee of the Estate of

Ernest J. Sander, deceased, under the terms of the ex-

press testamentary trust of Ernest J. Sander, deceased, as

set forth in 9 C.J.S. section 468 page 928: ‘‘A bank which

App. 13

acquires the assets of another bank under circumstances

showing that it is a legal successor of such other bank

becomes liable for the debts and obligations of the old bank,

although the transaction may not be strictly a consolidation

or merger, as where the purchasing bank takes over all the

assets of the other bank, assumes all its known liabilities,

and causes such other bank to discontinue business by a

voluntary liquidation. ”’

This fact was reaffirmed by Mr. Ralph Blaha, attorney,

acting for the Harris bank, in a letter to the decedent,

Ernest J. Sander’s surviving spouse, dated January 23,

1970: to wit that Harris Trust and Savings Bank ‘‘suc-

ceeded Chicago National Bank in all trust matters where

it had been named.’’

6. That on July 1, 1969, approximately six months prior

to his death, the decedent Ernest J. Sander, apparently

responding to a June 26, 1969 letter from the Harris Trust

and Savings Bank, did confirm by letter, his last will and

testament dated December 27, 1955, that it created a trust,

that Chicago National Bank was named both executor trus-

tee and that said will was in his safe deposit box.

7. That subsequent to the death of Ernest J. Sander,

the defendant Harris Trust and Savings Bank was repre-

sented by Mr. N. Daniel Engstrom at the examination of

the decedent’s safe deposit box #3450 at the Mid City

National Bank of Chicago, 807 West Madison Street, Chi-

cago, Illinois, which fact is attested to by the document

subtitled ‘‘Schedule of Contents’’ dated February 19,

1970. It states: Information supplied by Mr. N. Daniel

Engstrom, Harris Trust and Savings Bank.

8. That on February 20, 1970 the Harris Bank through

their attorney, Mr. Ralph Blaha, caused the last will and

testament of the decedent, Ernest J. Sander, to be filed

in the Probate Division of the Circuit Court of Cook Coun-

ty Illinois.

App. 14

9. That on or about February 25, 1970, representatives

of the Harris Trust and Savings Bank, Mr. Braddock, Mr.

Engstrom, and others, met with one of the plaintiffs,

Betty Sander Harvey (aka Davis) to discuss the circum-

stances surrounding the decedent’s death and a possible

wrongful death suit, stemming from said death.

10. That the defendant, Harris Trust and Savings Bank,

on March 4, 1970, removed and took custody of all the

assets and property, including stocks, bonds, deed to prop-

erty, insurance policy, and last will and testament, which

reposed in the decedent, Ernest J. Sander’s safe deposit

box. The aforementioned act was confirmed in a letter

addressed to Phillip Makin on March 4, 1970.

11. That subsequently on March 10, 1970, Mr. Phillip

Makin, an attorney acting on behalf of the said Emma

Sander, sent to the Harris Trust and Savings Bank fur-

ther assets and property of the decedent Ernest J. Sander,

including dividend checks from Adams Express Co., North-

ern Illinois Gas, Studebaker \Worthington, Commonwealth

Edison, Voting Proxies for 1970 meeting of Adams Ex-

press, American Motors, and check book of Ernest J.

Sander from the Harris Trust and Savings Bank, Chicago,

all of which were accepted by said defendant, Harris Trust

and Savings Bank.

12. That on March 23, 1970, said Attorney Mr. Phillip

Makin sent to 'N. Daniel Engstrom of the Harris Trust and

Savings Bank further property and assets of the decedent,

Ernest J. Sander, including his personal and corporate in-

come tax returns, dividend checks from St. Regis Paper,

U. S. Steel, tax bill from treasurer’s office, Allamakee Coun-

ty, Iowa, cancelled checks, correspondence photocopies of

dividend checks and Form 1099 Dividend Records... all

of which the defendant, Harris Trust and Savings Bank,

accepted. The defendant also procured an extension agree-

ment from the IRS to prepare and file the 1040 tax return.

13. That on a number of occasions, one of the plain-

tiffs, Betty Sander Harvey (aka Davis), conversed with

App. 15

“=

the defendant, Harris Trust and Savings Bank, concerning

problems in the estate, the corporation of the decedent, and

wrongful acts of an attorney, Mr. Phillip Makin, in regard

to the decedent’s estate, and on each occasion she was re-

assured by Mr. N. Daniel Engstrom that the assets of

Ernest J. Sander, deceased, were securely in the keeping

of the defendant, Harris Trust and Savings Bank.

14. That through all of the above mentioned acts the

defendant, Harris Trust and Savings Bank, did accept,

affect, and establish said Bank’s appointment as trustee

of the Estate of Ernest J. Sander, deceased, as set forth in

76 Am Jur. 2nd section 124.

‘‘ Acceptance of a trusteeship ordinarily may be made

without any formality. Such acceptance may be effected,

established or proved by . . . acts fairly implying con-

sent,’’ as established in Hoffman v. Gould 64 NE 2nd 773,

327 Ill. App. 428. ‘‘Exercising power over property is an

acceptance of trust.’’

15. That subsequent to the aforementioned facts the

defendant, Harris Trust and Savings Bank took no action

whatsoever to open the probate proceedings but rather

allowed Mr. Phillip Makin, an attorney retained by said

Emma Sander, to collect the assets, control the decedent’s

business and take possession of the decedent’s personal

property contrary to 35 Ill LP section 142 p 328 which

stutes : ‘

‘(Tt is the exclusive right and duty of the trustee to col-

lect or reduce to possession the property and assets which

belong to an estate within a reasonable time. (Holyoke v.

Con Ill Bank 104 NE 2nd 838) and further contrary to 32

Ill D 295 Key 181

‘Where trustee holds legal title to trust property with

right of possession, he cannot remain dormant with im-

punity; and the mere fact that party from whom trustee

must obtain property is evidently a reputable attorney at

that time, does not excuse the trustee’s failure to take steps

App. 16

to secure trust property, nor change legal duty of trustee.’’

‘*Where trustee alone has sole power to invest and rein-

vest trust property, it is emphatically trustees duty to

take possession thereof.’’

The defendant allowed said Phillip Makin to take posses-

sion, in spite of the fact that said Phillip Makin had already

shown his bad faith by attempting to gain access to the

decedent’s safe deposit box after his death, claiming he

was alive; by representing that the decedent’s will was in-

valid, since said Phillip Makin had drawn subsequent wills;

and by representing that said Emma Sander was Admin-

istrator of the Estate on January 27, 1970. All of the afore-

mentioned facts were untrue, designed to destroy the trust

of Ernest J. Sander and all were known to Harris Trust

and Savings Bank. Yet said Bank allowed Phillip Makin

to intermeddle in the duties which were rightfully those of

the defendant, Harris Trust and Savings Bank. It would

have seemed that the defendant would have acted with un-

told authority and utmost haste to protect the estate.

16. That unbeknown to the plaintiffs, on March 13, 1970,

Mr. Ralph Blaha, attorney for Harris Trust and Savings

Bank, appeared in Probate Court and effected a transfer

of the decedent’s will to Starke County, Indiana. The

plaintiffs have since learned that the decedent, Ernest J.

Sander, filed his Income Tax Return from the State of

Illinois, and took great pains to preserve his legal residency

in said state. The transfer was unwarranted and ques-

tionable in nature and caused the estate to suffer great

financial loss as well as confusion and complications in the

probate matters.

17. That on June 5th with the full knowledge and con-

sent of defendant, Harris Trust and Savings Bank, an

Estate was opened in the Circuit Court of Starke County,

Indiana #3481 in which the Plaintiff Betty Sander Harvey

(aka Davis) and Emma Sander were appointed co-adminis-

tratrix. Said proceeding was unproper, unbeknown to the

App. 17

plaintiff at the time, since the will and trust were still in

effect. It was further improper since said Emma Sander,

who had formerly resided in the State of Indiana, had

moved to Chicago on or before May 1, 1970, and therefore

neither administrator was a resident of the State of Indi-

ana, as required by law. ‘Thus plaintiff Betty Sander

Harvey (aka Davis) was unwittingly made a party to the

wrongful acts, well known to the defendant, Harris Trust

and Savings Bank.

18. That on the thirteenth day of July 1970 which was a

full six months lacking three days after the death of said

decedent, Ernest J. Sander, during all of which time the

defendant Harris Trust and Savings Bank had been acting -

in the Estate of said decedent, said Bank filed a document

in the Circuit Court of Cook County which reads: ‘‘This

matter coming on to be heard upon the motion of Ralph C.

Blaha, attorney for Harris Trust and Savings Bank, pre-

senting the Renunciation and Declinations of Harris

Trust and Savings Bank, together with Continental

Tllinois’’ (Continental Bank being successor trustee

named in the decedent’s trust). By causing their

attorney Ralph Blaha to concurrently, in one docu-

ment, file their renunciation and the declination of the

successor trustee Continental Illinois Bank, they willfully

and wrongfully but effectively destroyed the trust of

Ernest J. Sander. This is clearly a travesty of the law and

contrary to just practice to wit: ‘‘A trust will not be per-

mitted to fail for want of a trustee.’’ 90 CJS section 211 p

139. (DeKorwin v. 1st National Bank of Chicago 70 S Ct.

1028 339 US 982 94 6ed 1386)

90 CJS section 217 p 158, 159: ‘‘A court of equity or its

equivalent may and ordinarily will appoint a trustee where

the designated trustee refuses, or neglects to execute the

trust . . . or declines after accepting . . . or where the

qualified or acting trustee withdraws on his own petition. ”’

Why was not this done?

The Plaintiff Betty Sander Harvey (aka Davis), heir at

law, received no written notice of the intention of the defen-

App. 18

dant, Harris Trust and Savings Bank, to withdraw from

its trusteeship, nor was said Plaintiff notified of the date

the Defendant would petition to withdraw, nor was said

Plaintiff present in court when such petition was heard.

Further, to the best knowledge of the Plaintiff, no ac-

counting was ever presented to the Court by the Defendant,

Harris Trust and Savings Bank, at the time of their re-

nunciation, prior thereto or subsequent thereto. And al-

though a trustee may under proper circumstances with-

draw or resign, the law clearly requires from said trustee,

an accounting.

19. That subsequent to the withdrawal of the defendant,

Harris Trust and Savings Bank, the Plaintiff learned that

in violation of section 3 of the trust instrument by which

the Harris Bank agreed to ‘‘hold, manage lease, care for

and protect said trust estate,’’ they in fact allowed the

decedent’s business, an Illinois corporation known as John

Sander Inc., to be wrongfully usurped and controlled by

Attorney Phillip Makin and his client, Emma Sander. Then

without the knowledge of the plaintiffs, the defendant, Har-

ris Trust and Savings Bank who had by the trust instru-

ment sole direction over the said corporation, allowed the

voluntary cessation of operations of said corporation to

be effected. Trusts are always imperative and are obliga-

tory on the conscience of the person entrusted (65 CJP

218 note 7) ‘‘they are made with strict reference to their

faithful execution and it has been said the entire doctrine

of trusts rests on the principle that equity regards that as

done which should be done. Since the primary object of a

trust is to confine the powers of the beneficiary and deprive

him of any power to dispose of and manage the trust.’’

Kilgore v. State Bank of Colusa 21 NE 2nd 9 300 Ill App

404 affirmed 25 NE 2nd 29 372 Ill 578

The heirs were not only powerless, they were eaiitnaped.

and did not learn of such act for several years.

App. 19

20. That the Harris Trust and Savings Bank did breach

the testamentary trust of the decedent Ernest J. Sander

after they had accepted the same which breach resulted in

waste, loss and untold damages to the estate of the dece-

dent, and to the Plaintiffs Betty Sander Harvey (aka

Davis), Douglas Alan Davis, and William Porter Davis.

That among these losses are the decrease in the value of

the decedent’s securities, the unaccounted for dividends

from said securities, the total dissolution of the decedent’s

corporation, whose stock was evaluated by Carl Safanda

of the defendant, Harris Trust and Savings Bank, in a re-

port dated April 21, 1970 to be worth $85.09 per share of

which there were 999, the building at 1053-55 West Lake

Street which was estimated to be $100,000, all of the rents

collected by the corporation and various bank accounts, as

well as approximately $25,000 spent by the plaintiffs, dur-

ing the six years they have sought redress in courts for

the losses incurred from the breach of the trust of the

decedent Ernest J. Sander in the Harris Trust and Sav-

ings Bank.

The plaintiffs further state that they, and in particular

Betty Sander Harvey (aka Davis), have suffered inestim-

able physical and emotional strain and damage and fur-

ther have devoted untold hours of time which, during the

six years, could have been used for gainful employment.

The Plaintiffs further state that as a result of the failure

of the defendant Harris Trust and Savings Bank to fulfill

the terms of the decedent’s trust, the plaintiffs have had

their confidence in the institutions of banking and law,

which are two of the undergirding institutions in our

American society, undermined and damaged beyond com-

prehension—for all of which the defendant Harris Trust

and Savings Bank is clearly responsible as stated: ‘‘In

accepting a trust, trustee is presumed to know obligation

and limitations connected with his high office and if he

transgresses, must abide by the consequences.’’ Piff v.

Berresheim 405 Ill. 617 Martin v. Rodeford trust 281 Tll 441

App. 20

A trustee after he has accepted i

pted the office, cannot dis-

charge himself from liability merely by a subsequent resig-

Prk 35 Ill. L P section 106 p 301 96 CJS section 225 p

“A trustee has the duty of protecting and preserving the

trust properly from loss and injury, and he is liable for a

loss resulting from his failure to exercise reasonable care

prudence and diligence.’’ Holyoke v Continental Il Bank

1952 104 NE 2nd 838 Strauss v. Chicago Title and Trust

1933 273 Ill App 63

As a result of the defendant Harris Tru i

st and Sa

Bank’s breach of trust of the decedent Ernest J. Sander

the plaintiffs have been damaged in the sum of seven him

dred fifty thousand dollars ($750,000.00).

Wherefore, the plaintiffs Betty Sander Harvey (aka

Davis), Douglas Alan Davis, and William Porter Davis

_ - the court enter a judgment against the defendant

arris Trust and Savings Bank for seven h

thousand dollars. atonal

/8/ Betty Sander Harvey

Betty Sander Harvey (aka Davis)

Betty Sander Harvey

Attorney Pro Se

and for Plaintiffs

834 Monroe Avenue

River Forest, Ill. 60305

369-6549

Subscribed and sworn to

(SEAL) before me this 12th day

of November, 1976

/8/ Phil E. Gierman

Notary Public

App. 21

APPENDIX C

IN THE

CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT — LAW DIVISION

No. 76 L 20780

BETTY SANDER HARVEY (a/k/a DAVIS), DOUGLAS

ALAN DAVIS, and WILLIAM PORTER DAVIS,

Plaintiff's,

v.

HARRIS TRUST AND SAVINGS BANK,

Defendant.

ORDER

THIS CAUSE coming on to be heard upon the motion

of Defendant, Harris Trust and Savings Bank (hereafter

‘‘Harris’’), to Strike and Dismiss the Complaint, and the

Court having before it said Complaint, Motion and the

Affidavits filed by Defendant, Harris, in support of said

motion, and having heard the statements and arguments of

counsel for the parties herein, finds that:

Defendant, Harris, never accepted or qualified as Ex-

ecutor under the will of Ernest J. Sander, Deceased.

Harris never accepted or acted as the trustee under

the trust set forth in said Will of Ernest J. Sander, De-

ceased.

Harris in taking possession of assets of Ernest J.

Sander after his death and preserving them until it turned

them over to the Administrator With the Will Annexed

after her appointment, acted under and pursuant to the

lilinois Probate Act, Section 6-14 (formerly Section 79).

App. 22

The Will of Ernest J. Sander, Deceased, was renounced

by the widow, Emma Sander, on October 22, 1970, p ir-

suant to order of this Court entered on that date.

The assets of the Estate were distributed one-third

(44) each to the widow and the two daughters, Betty and

Marjorie in accordance with Sections 2-8(a) and (c) of the

Illinois Probate Act.

The Statute of Limitations—Section 16—‘‘Oral con-

tracts—Arbitration awards—Damage to property—Pos-

sessory actions—Civil actions’’ of Chapter 83 of the IIli-

nois Revised Statutes bars this and an .

y cause of act

by the Plaintiffs. ction

The allegations of the Complaint are insufficient to sus-

tain a cause of action.

IT IS THEREFORE ORDERED that the Complaint be

and the same hereby is stricken and this cause of action is

hereby dismissed with prejudice.

ENTER:

Judge Daniel P. Coman

JUN 22 1977

Cireuit Court

App. 23

APPENDIX D

LAST WILL AND TESTAMENT

of

ERNEST J. SANDER

I, ERNEST J. SANDER, of Chicago, Illinois, make this,

my Last Will and Testament and revoke all former Wills

and Codicils by me made.

FIRST: I direct my Executor to pay out of the prin-

cipal of my estate all my just debts, funeral expenses and

costs of administration. I further direct my Executor to

pay out of the principal of my estate, or to make deposits

therefrom to secure such payments, all estate, inheritance,

transfer and succession taxes, including any interest and

penalties thereon, which may be assessed in any way by

reason of my death, and I hereby waive on behalf of my

estate any right to recover from any person, including any

beneficiary of insurance on my life, any part of such taxes

so paid.

SECOND: I give and bequeath all my clothing, jewelry,

personal effects, house furnishings, automobiles and other

articles of household or personal use or adornment, to my

wife, EMMA SANDER, if she survives me, otherwise to

my surviving children, to be divided equally among them

as they determine, or if they fail to agree upon such divi-

sion within six (6) months after my death, then as my

Executor shall determine.

THIRD: All the residue of my estate and property,

real and personal, wheresoever situated, including all

lapsed legacies and devises, I give, devise and bequeath to

CHICAGO NATIONAL BANK, a national banking as-

sociation, 120 S. LaSalle St.,

Ernest J. Sander

D.C.H.

WFL

RCB

App. 24 App. 25

to cause any securities or other property, real or per-

preinater set forthe ees sca sonal, belonging to the trust estate to be held or

hereinafter set forth.

SECTION 1: The entire net income from the trust

estate, commencing at the time of my death, shall be

paid to my beloved wife, EMMA SAN DER, in con-

venient installments during her lifetime. In addition

to the foregoing provision in favor of my said wife,

the Trustee shall be fully authorized to pay to my

said wife such sums from the principal of the trust

estate as in its sole discretion shall be necessary or

advisable from time to time, for the medical care,

comfortable maintenance, and welfare of my said wife,

taking into consideration all other income and cash

resources available to my said wife for such purposes

and all sources known to the Trustee. Payments to

my wife, EMMA SANDER shall not be less than

Fifty Dollars ($50.00) per week, including any So-

cial Security payments to her as my dependent.

SECTION 2: Upon the death of my said wife,

EMMA SANDER, the Trustee shall divide the whole

of the capital of such trust estate then remaining, in-

cluding all gains and increases of capital thereof, if any,

into two (2) equal parts or shares, and shall convey,

transfer and pay over one (1) of such equal parts or

shares to each of my daughters, MARJORIE H. SAN-

DER and BETTY MAE DAVIS, if they shall be then

living. In the event of the death of either of my

daughters prior to complete distribution of her share,

then upon such child’s death, such share or the re-

mainder thereof, shall be distributed per stirpes to her

then remaining descendants, if any, or if none, then per

stirpes to my then living descendants.

SECTION 3: The Trustee shall hold, manage,

lease, care for, and protect said trust estate and col-

lect the income therefrom, all in accordance with its

best judgment and discretion, being fully authorized

registered in its name or in the name of its nominee

or in such other form as it deems best without dis-

closing the trust relationship. Any leases that may

be made may commence at the time of making or on

a future day and may be for any period of time the

Trustee thinks best, though extending beyond the term

of the trust. The Trustee may continue to hold any

property or securities received at the commencement

of the trust. The Trustee shall be authorized to in-

vest and reinvest the trust estate as shall be permitted

by law and by the statutes of the State of Illinois. It

is also authorized to borrow money, to extend or re-

new any existing indebtedness, and to mortgage or

pledge any property in the trust estate; and no pur-

chaser or mortgagee shall be obliged to see to the ap-

plication of any purchase or mortgage money. The

Trustee may vote either in person or by general or

limited proxy, or refrain from voting, any corporate

securities for any purpose. The Trustee may exercise

or sell any subscription or conversion

Ernest J. Sander

D.C.H.

WFL

RCB

2.

rights, and may avail itself of any options or benefits

under any life insurance policies; it may consent to

or join in any voting trusts, reorganizations, consoli-

dations, mergers, foreclosures, and liquidations, and

in connection therewith, may deposit securities with

or under the direction of any protective committee

under such terms as the Trustee may deem advisable,

~

App. 26

and may accept and hold any securities or other prop-

erty received through the exercise of any of the fore-

going powers. The Trustee is authorized to settle,

compromise, contest, prosecute, or abandon claims in

favor of or against the trust estate as it may deem

advisable. For the purposes aforesaid, the Trustee

may execute and deliver all proper and necessary in-

struments and may give full receipts and discharges.

The Trustee shall also have the power to determine

how all receipts and disbursements, including the

Trustee’s compensation, shall be credited, charged, or

apportioned as between income and principal, and the

decision of the Trustee shall be final and not subject to

question by the beneficiary of the trust. The Trustee

is authorized in its sole discretion to divide or dis-

tribute the trust property in undivided interests or in

kind, or partly in cash and partly in kind, and to sell

such property as the Trustee may deem advisable for

the purpose of making division or distribution. The

judgment of the Trustee as to values for the purpose

of such division or distribution shall be binding and

conclusive on all persons.

SECTION 4: The Trustee shall render to the bene-

ficiary of the trust estate statements of account of its

receipts and disbursements as Trustee hereunder at

least semi-annually. The Trustee shall be entitled to

receive a fair and just compensation for its services

hereunder and shall also be reimbursed for all reason-

able expenses incurred in the management and pro-

tection of the trust estate.

SECTION 5: Im the event of the dissolution or

resignation of the Trustee hereunder, CONTINENTAL

ILLINOIS NATIONAL BANK AND TRUST COM-

PANY OF CHICAGO is hereby appointed Successor

Trustee to administer the trust estate, with all of the

App. 27

duties, rights, titles and powers, as if originally

named as Trustee.

FOURTH: In the event that my said wife, EMMA

SANDER shall predecease me, or if my said wife and I

shall die in a common accident or common disaster, or

under such circumstances as to render it difficult or im-

possible to determine with certainty whether or not my

said wife survived me, then and in any of such events, the

trust herein created shall not come into being and my

Executor shall make distribution to my children, or their

issue, as in Section 2, Clause Third, in this my Will,

provided.

FIFTH: I hereby appoint CHICAGO NATIONAL

BANK Executor of this, my Will. I give to my Executor

full power and

Ernest J. Sander

D.C.H.

WFL

RCB

3.

authority to sell at such time or times as it, in its abso-

lute discretion, shall deem best at public or private sale

and without order of court any property, real or personal,

belonging to my estate. During the period of adminis-

tration of my estate, my Executor is authorized and em-

powered to join with my Trustee in the exercise of all

powers and discretions given to my Trustee, and to the

extent that my Executor has sole custody or control of

any property, it is given with respect to such property

all the powers and discretions herein conferred upon the

Trustee, the same to be exercised by said Executor with-

out application to or confirmation by any court. In the

event of the dissolution or resignation of the Executor

herein named, CONTINENTAL ILLINOIS NATIONAL

App. 28

BANK AND TRUST COMPANY OF CHICAGO is here-

by appointed Successor Executor, with all of the duties,

rights and powers as if originally named as Executor.

IN WITNESS WHEREOF, I have hereunto set my

hand and seal this 27 day of December, A. D. 1955.

Ernest J. Sander (SEAL)

The above and foregoing instrument, consisting of four

(4) typewritten pages, this one included, each of which

bears the signature of the Testator, ERNEST J. SAN-

DER, was on the day of the date thereof signed, sealed,

published and declared by the Testator as and for his

Last Will and Testament, in the presence of us, who at his

request and in his presence and in the presence of each

other, have hereunto subscribed our names as witnesses

hereto; believing the said Testator, ERNEST J. SANDER

to be of sound and disposing mind and memory at the

time of so subscribing our names.

Name: Dorothy C. Holmes

Address: 1109 Holley Court, Oak Park, Ill.

Name: William F. Lentsch

Address: 7420 N. Campbell Ave., Chicago, Ill.

Name: Ralph C. Blaha

Address: 747 N. Leamington Ave., Chicago, Ill.

App. 29

APPENDIX E

I believe it was,—now I turned it over and lost it. Yes, 2-8.

‘‘Tf a will is renounced in the manner provided by

this section, any future interest which is to take affect

in possession or enjoinment at or after the termina-

tion of the estate or other interests given by the will

of the surviving spouse, takes affect as though the sur-

viving spouse had pre-deceased the testator, unless

the will expressly provides that in a case of re-

nunciation the future interests shall not be acceler-

ated.’’

The will very explicitly said in case my wife pre-deceases

me or we die in a common disaster, then the items under

the will and trust will go as set forth in the paragraphs

previous to the paragraph making that statement and

I can read it to you exactly. ‘‘As in Section 2, Clause 3,

as my will provides.’’ So, it does, that’s fine that she

renounced, but there is still a trust because the will very

explicitly sets forth. So, I think that Harris’s position

in trying to say there is no trust that is kind of without

App. 30

APPENDIX F

B.

In delivering its opinion, the Appellate Court set forth

more than twenty incorrect and/or misleading represen-

tations made by defendant as true. This is difficult to

understand since these misstatements were brought before

the court in the oral argument. They include but are

not limited to the following:

p. 1. par. 2.

Ernest Sander died . . survived by his second wife.

THE RECORD WILL SHOW THAT ON JULY 13, 1971

AN AMENDED ORDER OF HEIRSHIP WAS EN-

TERED IN THE ESTATE OF SANDER WHICH OR-

DER HELD THAT SANDER’S ONLY HEIRS WERE

HIS TWO DAUGHTERS.

p. 1. par. 2.

At the time of his death Sander resided in Walkerton,

Indiana.

THE RECORD WILL SHOW THAT SANDER’S LEGAL

RESIDENCY WAS IN ILLINOIS.

p. 1. par. 3.

The will was filed in the cireuit court of Cook County

and subsequently transferred to Indiana.

THE COURT FAILS TO STATE THAT IT WAS THE

DEFENDANT WHO WRONGFULLY TRANSFERRED

TO INDIANA WITHOUT KNOWLEDGE OF PLAIN-

TIFF.

p. 2. par. 1.

The record shows that on April 30, 1970, a confer-

ence was held in defendant’s office with decedent's

widow, two daughters and their attorneys in at-

tendance.

THE RECORD WILL SHOW THAT SAID MEETING

WAS ATTENDED ONLY BY PLAINTIFF, HER SIS-

App. 31

TER AND PLAINTIFF’S MOTHER’S ATTORNEY.

PLAINTIFF AND HER SISTER HAD NO LEGAL

COUNSEL.

p. 2. par. 1.

At this conference defendant stated it would not accept

the appointment as executor trustee because of the

failure of the decedent’s family to cooperate with

one another.

DEFENDANT DID NOT STATE IT WOULD NOT AC-

CEPT THE APPOINTMENT. IT STATED ONLY

THAT IT BELIEVED IT WOULD NOT BE IN ITS

BEST INTEREST TO DO SO...AND THAT IT

WOULD ADVISE THE DAUGHTERS AT A FUTURE

DATE OF THE DECISION. IT DID NOT SO ADVISE.

FURTHER THERE WAS NO LACK OF COOPERA-

TION BETWEEN MEMBERS OF THE DECEDENT’S

FAMILY, EXCEPT THAT WHICH THE BANK, AND

THE LAWYERS FOR EMMA AND MAE DEVISED.

p. 2. par. 2.

Marjorie and Mae opened probate proceedings.

ONLY MAE OPENED SUCH PROCEEDINGS, MAR-

JORIE HAD NO COUNSEL.

p. 2. par. 3.

On July 17, 1970, Betty and Marjorie filed a cross-

petition for letters of administration.

MAE’S ATTORNEY FILED SAID PETITION ON

MAE’S BEHALF.

p. 2. par. 4.

On May 6, 1970 defendant filed a renunciation in the

Circuit Court of Starke County.

THE RECORD WILL SHOW SUCH PETITION WAS

FILED JUNE 5, 1970, THE SAME DAY THE ESTATE

WAS OPENED IN STARKE COUNTY.

App. 32

p. 2. footnote 1.

The record is unclear as to when Emma filed a peti-

tion in Illinois to be appointed A/W/W/A .. . but indi-

cates it was after Emma moved to Illinois on June

15, 1970.

THE RECORD WILL SHOW EMMA’S PETITION WAS

FILED AUGUST 21, 1970, AND THAT EMMA MOVED

TO ILLINOIS ON MAY 1, 1970. HER APPOINTMENTS

IN ILLINOIS AND INDIANA WERE BOTH IMPROP-

ER SINCE A VALID WILL AND TRUST EXISTED.

FURTHER SHE WAS NOT AN INDIANA RESIDENT

AS THE LAW REQUIRES.

p. 3. par. 3.

Emma stated that she and defendant had diligentiy

collected and preserved the assets.

DEFENDANT DID INDEED COLLECT THE ASSETS

AS EXECUTOR. HOWEVER, THE RECORD CLEAR-

LY STATES THAT SUCH ASSETS WERE NOT PRE-

SERVED. THIS IS A QUESTION OF FACT WHICH

MUST BE DETERMINED IN COURT. (SEE AP?EN-

DIX, EXHIBITS)

p. 4. par. 2.

Assets of decedent’s estate were sold and proceeds

distributed in accordance with the renunciation of the

will. One third each to Emma as widow, and to each

of decedent’s two daughters.

THIS IS ENTIRELY FALSE. THE EFFECT OF RE-

NUNCIATION WAS THAT THE WIDOW HAD PRE-

DECEASED THE TESTATOR. IN THAT EVENT THE

WILL PROVIDES THAT THE PROCEEDS WERE TO

PASS ONLY TO DECEDENT’S DAUGHTERS. THE

ASSETS WERE NOT DISTRIBUTED IN ACCORD-

ANCE WITH THE RENUNCIATION ... EMMA

WRONGFULLY RECEIVED MORE THAN ONE.

THIRD.

App. 33

p. 4. par. 2.

The record fails to indicate when the estate of Ernest

J. Sander was actually closed.

ALTHOUGH PLAINTIFF HAS TWO CONFLICTING

DOCUMENTS CONCERNING THE CLOSING, ON

JULY 28, 1979, SHE OBTAINED A CERTIFIED COPY

OF AN ORDER REFLECTING THAT SUCH ESTATE

WAS CLOSED NOVEMBER 29, 1976. PLAINTIFF

RECEIVED NO NOTICE OF SUCH HEARING. IN

RAMSAY v. RAMSAY, 10 Ill. 2d 459, THE COURT

RULED:

Role as trustee could not be assumed until the estate

was closed, when the jurisdiction of the probate court

over the matter would cease.

THEREFORE PLAINTIFF’S COMPLAINT COULD

NOT BE BARRED BY STATUTE, SINCE IT WAS

FILED NOVEMBER 12, 1976, AND DEFENDANT’S

ROLE AS TRUSTEE COULD NOT BE DETERMINED

UNTIL NOVEMBER 29, 1976.

p. 4. par. 2.

No appearance was made vy decedent’s grandsons,

nor an appearance made by an attorney in their behalf.

Therefore, they are not parties to this action.

DECEDENT’S GRANDSONS WERE NAMED AS CO-

PLAINTIFFS IN THIS COMPLAINT AND WERE

PARTIES THERETO. PLAINTIFF’S ATTORNEY

FAILED TO FILE HIS APPEARANCE FOR THEM.

p. 4. par. 5.

Plaintiff did not file counter affidavits.

PLAINTIFF RESPECTFULLY SUBMITS THAT

PLAINTIFF’S ATTORNEY DID NOT FILE COUNTER

AFFIDAVITS DESPITE THE FACT THAT PLAIN-

TIFF MARKED EACH FALSIFICATION IN DEFEN-

App. 34

DANT’S AFFIDAVITS, VERIFIED SAME WITH

LEGAL DOCUMENTS AND GAVE THEM TO HER

ATTORNEY WHO ASSURED HER COUNTER AFFI-

DAVITS WOULD BE FILED. PLAINTIFF BROUGHT

THIS BEFORE THE COURT IN HER ORAL ARGU-

MENT.

p. 6. par. 3.

Plaintiff asks court to apply more lenient procedural

standards to pro se litigants than is allowed to attor-

neys ... Illinois Supreme Court in Biggs v. Spader

established pro se litigants must comply with same

rules of procedure required of attorney.

THE COURT ERRS. AT NO TIME DID PLAINTIFF

ASK FOR MORE LENIENT PROCEDURAL STAN-

DARDS. BIGGS v. SPADER IS NOT AN ANALOGOUS

CASE. IN BIGGS v. SPADER, THE LITIGANT’S AP-

PEAL WAS DISMISSED BECAUSE HE FAILED TO

INCLUDE A COPY OF THE ORDER OR AN AB-

STRACT IN THE RECORD ON APPEAL. PLAIN-

TIFF IN THIS INSTANT DID NOT FAIL TO FILE

PROPER DOCUMENTS OR FOLLOW PROPER PRO-

CEDURE. PLAINTIFF PROPERLY RELIES ON

U.S. SUPREME COURT (1972) HAINES v. KERNER,

404 U.S. 519, 30 L.Ed. 2d 652, 92 S. C. 594, 596 WHICH

PERTAINS TO THE SUFFICIENCY OF A COM-

PLAINT AS DOES THE QUESTION RAISED IN THE

INSTANT CASE.

HAINES ESTABLISHED:

The complaint of a pro se plaintiff cannot be held to

the same stringent standards as formal pleadings

drawn by an attorney. Since it did not appear beyond

doubt that plaintiff could prove no set of facts in

support of his claim, he was entitled to the oppor-

tunity to offer proof.

App. 35

HAINES IS AN ANALOGOUS CASE, AND SUPER-

CEDES BIGGS BOTH IN THAT IT IS A 1972 RULING

AND THAT IT IS AN OPINION OF THE UNITED

STATES SUPREME COURT.

p. 7. par. 1.

At no time did counsel for plaintiff file counter affi-

davits.

THE COURT REPEATS THIS POINT AS IF TO ES-

TABLISH THE VALIDITY OF SUCH AFFIDAVITS.

HOWEVER, SUCH AFFIDAVITS ATTACHED TO

THE MOTION TO DISMISS ARE A NULLITY. THEY

CANNOT BE CONSIDERED WITH THE SECTION 45

OBJECTIONS BECAUSE SUCH AFFIDAVITS AND

EXHIBITS DO NOT SUPPORT ALLEGATIONS OF

DEFECTS IN THE COMPLAINT. MUTUAL TOBAC-

CO CO. INC. v. HALPIN (1953), 414 Ill. N.B. 2d 155;

ELLIOTT v. ILLINOIS CENTRAL R.R. (1948), 318 Ill.

App. 112, 119, 47 N.E. 2d 375; LOUIS v. BARENFANGER

(1967), 81 Ill. App. 2d 68, 235 N.B. 2d 851. NOR CAN

THEY BE USED TO SUPPORT THE PART OF THE

MOTION FILED UNDER SECTION 48, SINCE THEY

MERELY CONTROVERT THE ALLEGATIONS OF

THE PLAINTIFF’S COMPLAINT. SINCE A MOTION

TO DISMISS CONCEDES AS TRUE ALL FACTS

WELL PLEADED, THE AFFIDAVITS HAVE NO

MEANING AND THE ALLEGATIONS IN THE MO-

TION TO DISMISS SHOULD HAVE FAILED. 0’FAL-

LEN DEVELOPMENT C. v. RING (1976), 37 Ill. 2d 84,

994 N.E. 2d 782; LOGAN v. PRES. ST. LUKES HOSP.

(1968), 92 Ill. App. 2d 68, 235 N.E. 2d 851.

p. 8. par. 1.

Acts or misrepresentations affirmatively showing

fraudulent concealment must be alleged.

App. 36

THE APPELLATE COURT ERRS. IT HAS BEEN

HELD IN WOOD v. WILLIAM, 142 Ill. 269:

Defendant. can fraudulently conceal without some af-

firmative act, but the onus is on plaintiff to prove it.

IN SABETH v. HANDLER CO. (1968), 102 Ill. App. 2d

218, 234 N.E. 2d 728 THE COURT RULED:

The representations made by defendant constitute in

our opinion at the very least a statement that would

amount to fraudulent concealment.

THUS STATEMENTS TOO, NOT JUST ACTS, ARE

CONSTRUED AS CONCEALMENT. SABETH CAR-

RIED THE PREMISE EVEN FARTHER STATING:

Fraud which tolls the statute can be mere silence.

GIBBON v. BRANDT, 170 F. 2d 385, 69 S. Ct. 511 Ill; IN

GRUNDY COUNTY NATIONAL BANK v. WESTFALL,

301 N.E. 2d 28, 13 Ill. App. 3d 839,

Statute of frauds which has as its purpose the preven-

tion of fraud will not be permitted to be used where

the effect would be to accomplish a fraud and if facts

are such that it would be a virtual fraud to permit

defendant to interpose the statute, the court will not

listen to that defense.

FURTHER DEFENDANT AND PLAINTIFF WERE

IN A RELATIONSHIP OF TRUST.

The failure to discover is excused when parties are

in a relationship of trust, and duty is imposed on trus-

tee to disclose the truth; Anderson v. Laybeck, 154

N.E. 2d 259.

p. 8. par. 2.

We can find nothing in the record which would suggest

that the defendant made representations or performed

acts which fraudulently concealed a cause of action.

App. 37

DESPITE THE FACT THAT ACTS OR REPRESEN-

TATIONS OF CONCEALMENT ARE UNNECESSARY

AS HEREABOVE SET FORTH PARTICULARLY

SINCE THE COMPLAINT IS UNDER 10 YEAR STAT-

UTE, EXAMINATION OF PLAINTIFF’S COMPLAINT

WILL INDEED FIND THINGS IN THE RECORD SUG-

GESTING FRAUDULENT CONCEALMENT TO WIT:

Paragraph 13: On a number of occasions plaintiff

conferred with defendant, on each occasion she was

reassured that the assets of the decedent were securely

in keeping of defendant.

paragraph 15: Defendant allowed Phillip Makin to

control decedent’s business and take possession of de-

cedent’s personal property ... in spite of the fact

that Makin had already shown his bad faith.

paragraph 16: Unbeknown to plaintiff on March 13,

1970, attorney for Harris . . . effected a transfer of

decedent’s will to Indiana. Plaintiffs have since

learned ... decedent took great pains to preserve his

legal residency in Illinois.

paragraph 17: With full knowledge of defendant, an

estate was opened in Indiana. Said proceeding was

improper since the will and trust were still in effect

... and neither administrator was a resident of Indi-

ana, as required by law... Plaintiff was unwittingly

made a party to the wrongful acts well known to the

defendant.

paragraph 18: That on the 13th day of July ... six

months lacking 3 days after decedent’s death, . . . dur-

ing all of which time defendant had been acting . . .

defendant filed a document stating: Motion of Attor-

ney for Harris Bank presenting renunciations and de-

clinatiens of Harris . . . together with Continental

Tilinois.

Plaintiff received no written notice of the intention

of defendant ... nor was plaintiff notified of date nor

App. 38

was plaintiff present in court when petition was heard.

To the best of plaintiff’s knowledge, no accounting

was presented to the court by defendant.

paragraph 19: Subsequent to withdrawal of defen-

dant, plaintiff learned that it allowed decedent’s busi-

ness to be wrongfully usurped and controlled. Then

without plaintiffs knowledge, defendant . . . who had

by the trust instrument sole direction over said corpo-

ration allowed the voluntary cessation of operations of

said corporation to be effected.

The heirs were not only powerless, they were unin-

formed. Clearly the record shows concealment.

p. 9. par. 2.

We find it unnecessary to determine the issues... of

whether or not a trust relationship existed because . . .

any such which may have existed terminated when

plaintiff became aware of defendant’s renunciation of

its appointment as executor trustee.

PLAINTIFF RESPECTFULLY POINTS OUT THAT

ONCE MORE THE APPELLATE COURT MISREPRE-

SENTS A MATERIAL FACT. DEFENDANT DID NOT,

AT ANY TIME RENOUNCE AS TRUSTEE. ITS CLE-

VERLY WORDED RENUNCIATION WAS DESIGNED

TO DECEIVE PLAINTIFF INTO BELIEVING THAT

THEY HAD DECLINED TO ACT AS TRUSTEE ...

AND IT WORKED SO WELL, IT WAS NOT UNTIL

NOVEMBER 24, 1976, that plaintiff learned they had not.

(see appendix)

p. 9. par. 2.

We conclude . . . since plaintiff’s complaint was filed

November 12, 1976 over 5 years after all pertinent

events in this action had transpired the suit is barred

ILL. Rev. Stat. 1975 Ch83 Sec. 16.

App. 39

THUS THE COURT ERRED ONCE MORE. PLAIN-

TIFF’S COMPLAINT STATES

paragraph 2: During his lifetime, decedent .. . did

execute a 4 page written document known as a last will

and testament ... wherein he did give devise and be-

queath all his residuary estate to Chicago National

Bank as trustee in trust for the purposes set forth in

aforesaid will and testament and as executor of same.

paragraph 4: That the assets of Chicago National

Bank were acquired by Harris.

paragraph 5: That Harris became executor trustee

under the terms of the express testamentary trust as

set forth in OC. J. S. vol 9 Sec. 468 p. 928: Bank which

acquires assets of another .. . assumes all its known

liabilities.

paragraph 14: That through all of the above acts de-

fendant did accept ... appointment as trustee.

Acceptance of trusteeship ordinarily may be made

with no formality.

Acceptance be affected by acts complying consent.

Hoffman v. Gould 64 N. BE. 2d 773 327 Ill. App. 428:

Exercising power over property is an acceptance

of trust.

paragraph 20: That Harris did breach the testamen-

tary trust of decedent . . . which breach resulted in

waste, loss, and untold damages. side

As a result of defendant’s breach of trust, plaintiffs

have been damaged...

WHEN PLAINTIFF’S COMPLAINT SO PLAINLY

SETS FORTH THE DEFENDANT’S BREACH OF A

WRITTEN DOCUMENT WHICH CARRIES A TEN

YEAR STATUTE, CLEARLY THE APPELLATE

COURT ERRED IN BARRING SUCH COMPLAINT BY

ILL. REV. STAT. 1975 Ch 83 see. 16.

App. 40

THE COGENT STATUTE IS ILL. REV. STAT. 1975 Ch

83 Sec. 17. WHILE THE SECTION OF PLAINTIFF’S

COMPLAINT THAT RELATED TO THE BREACH OF

FIDUCIARY DUTY IS GOVERNED BY ILL. REV.

STAT. 1975 Ch 83, Sec. 23.

p. 9. par. 3.

Plaintiff has not offered any reason why matters raised

herein could not have been brought to the attention of

the probate court.

FOR REASONS UNKNOWN TO PLAINTIFF, THE AP-

PELLATE COURT HAS CHOSEN TO DISREGARD

PLAINTIFF’S COMPLAINT AS WELL AS PLAIN-

TIFF’S ORAL ARGUMENT. PLAINTIFF RESPECT-

FULLY STATES THAT CONCEALED MATTERS

COULD NOT BE RAISED AS PLAINTIFF SET FORTH

IN HER COMPLAINT, AND WHEN DISCOVERED,

COULD NOT BE RAISED IN COURT WHEN PLAIN-

TIFF’S ATTORNEYS FAILED AND REFUSED TO

DO SO.

App. 41

APPENDIX G

IN THE CIRCUIT COURT OF COOK COUNTY,

ILLINOIS

COUNTY DEPARTMENT PROBATE DIVISION

ESTATE OF ERNEST J. SANDER, Deceased

No. 70 P 5652 "

Docket 746

Page 551

ORDER

(Filed JUL 13 1970)

This matter coming on to be heard upon the motion of

Ralph C. Blaha, attorney for Harris Trust and Savings

Bank, presenting the Renunciations and Declinations of

Harris Trust and Savings Bank, together with Continental

Illinois National Bank and Trust Company, Successor

Executor under the Will of Ernest J. Sander, deceased ;

IT IS HEREBY ORDERED that leave be and the same

is hereby granted to Harris Trust and Savings Bank

(which merged with Chicago National Bank), and ontinen-

tal Illinois National Bank and Trust Company, to file their

Renunciations and Declinations as Executor and Succes-

sor Executor instanter.

Matthew J. Danaher

Clerk of the Circuit Court

Enter :

/s/ Ilegible

Judge

Name Ralph C. Blaha

Attorney for Harris Trust and Savings Bank

Address 100 W. Monroe St.

Chicago, Illinois 60603

Telephone An. 3 5730

App. 42

APPENDIX H-1

JUSTICE McGLOON: 1 might say in passing that your

attorney prepared a very good brief.

MS. HARVEY: Yes, Your Honor, he had prepared a

very good brief.

That’s what I’m saying. All of my attorneys had pre-

pared very good briefs. They just, somehow or other, failed

to bring the real facts before the court.

You find nowhere in there that Mr. Brewer says that the

lady is alleging violation of a written agreement which

carries a ten year statute, which my complaint alleges.

And so, my point is that the lower court had no right to

dismiss it because there was a ten year statute on it.

Further, Mr. Blattberg says these things. In his affidavit

he says, all these matters have been decided by a prior

complaint before the court when, in fact, a motion to dis-

miss decides nothing.

It was never tried.

I’d like to get the matter before a jury, which is what I

have been petitioning for all along, because I do not hold

the judges responsible at all.

The fact is, the—the facts are never brought before the

judges.

And so, that is my contention, that the complaint carried

a ten year statute, and it was dismissed on the grounds that

it was the same as the previous complaint which carried a

five, and that I did allege fraudulent concealment of the

other acts which does toll the statute.

So, in all, I do not feel the complaint should have been

dismissed.

Thank you, Your Honor.

THE COURT: We’ll hear from the other side now, if

you please.

MR. BLATTBERG: May it please the court, I repre-

sent the appellee, Harris Trust and Savings.

App. 43

This kind of argument is a very difficult one for me to

try to respond to as to—because there’s an attempt here

to try to testify at the same time as making an argument.

I’d like to say that we supported our motions to strike

and dismiss with affidavits and those affidavits were not

responded to. There were no counter-

It’s very clear that they were very careful to try and

preserve this knowledge, and—and they did a very good

job of it.

I found out none of it. I had suspicions. Until I began

writing, I knew none of it.

The point is that, before the court this morning, the mat-

ter is that there was a will and a trust. It was a written

instrument.

The Harris Bank did not act properly in regard to it.

That is a violation of a contract, and that carries a ten year

statute.

Thank you, Your Honor.

THE COURT: Case is taken for a decision.

Will you call the next case, please.

* * * & &

App. 44

APPENDIX H-2

record, a great many of the assets had been done away

with, unquote, including my father’s corporation, prior to

Harris’ declining to act as executor,

And may I respectfully point out, they never did decline

to act as trustee, so there was no possible way we could

be protected.

These things are not brought out by my attorney, and I

must bring them before the court, because I have no other

forum in which to bring these things forth.

I had never seen Mr. Blattberg’s document here or I

would have been trying—I probably would have had coun-

sel replaced before this, but I never saw it.

JUSTICE CAMPBELL: Mrs. Harvey, let’s see if I

understand you.

First, you’re saying there was an attorney for your

mother in the Probate Court?

MS. HARVEY: Yes, Your Honor.

JUSTICE CAMPBELL: And, secondly, there’s a sec-

ond attorney prior to Mr. Brewer?

MS. HARVEY: Yes, Your Honor.

JUSTICE CAMPBELL: And Mr. Brewer was the (in-

audible) in renouncing (inaudible to reporter) ?

MS. HARVEY: No, Your Honor, according to the Pro-

bate Act, I now know they are either to renounce or decline

within thirty days.

The truth of the matter was, when their renunciation—

and again I point to the court—executor only. They never

did renounce as trustee which allowed the decedent’s trust

to die. 7

Not only that, but they went in simultaneously with Con-

tinental Illinois who was the successor executor trustee.

The successor and the trustee renounced simultaneously

without notifying the heirs and without going in to have

a successor appointed.

App. 45

And this was done after they obviously had found out

what had happened to the corporation, because I had their

receipts to the fact that they had gone over all of the docu-

ments, and have a receipt from the man who was managing

it, so they knew full well what happened.

The corporation, unbeknown to me, all the assets had

been dissipated and had ceased to function, by the records

they filed with the tax authorities of Chicago in—before

June of 1970.

that the executor, if he declines, is by law required to ac-

count to the trustee.

And that probably explains why Harris didn’t renounce

their appointment as trustee, because then there was no one

except Harris to account to Harris.

Now, if this isn’t concealment, I don’t really quite know

what to term it, Your Honors.

We had no knowledge whatsoever.

I didn’t even know, because of the way they filed the peti-

tion and headed it, that the executor trustee, Harris, were

renouncing and declining their appointment as executor.

Even the first three or four times I read that document,

until, as a matter of fact, Mr. Brewer, my attorney, pointed

it out to me in December of 1976.

I wasn’t aware that they had declined to act as trus-

tee,

So, I say, by all these things, there has been fraudulent

concealment.

Furthermore, I attempted many times to get the records

on the corporation known as John Sander, Incorporated

from Harris Bank.

App. 46

APPENDIX I

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT—LAW DIVISION

BETTY SANDER HARVEY (a/k/a DAVIS), DOUGLAS

ALAN DAVIS, and WILLIAM PORTER DAVIS,

Plaintiffs,

v.

HARRIS TRUST AND SAVINGS BANK,

Defendant.

NO. 76 L 20780

ORDER

THIS CAUSE coming on to be heard upon Plaintiff,

Betty Sander Harvey’s Motion to Vacate the Order of June

22, 1977, and motion for leave to file an Amended Complaint

instanter, the Court having before it the Complaint, the

Motion to Strike and Dismiss the Complaint, the Affidavits

filed by the Defendant in support of sdid Motion to Strike

and Dismiss, the Motion to Vacate and the proposed

Amended Complaint and all other documents filed in this

cause together with all documents exhibited by counsel in

cpen court, and the Court having heard statements and

arguments of counsel for the parties herein and being fully

advised in the premises:

IT IS HEREBY ORDERED that:

1. The Motion to Vacate the Order of June 22, 1977, is

hereby denied with prejudice; and

2. The Motion for leave to file an Amended Complaint

instanter is hereby denied with prejudice.

Respectfully submitted,

ENTER: Judge Daniel P. Coman

NOV 22 1977

Circuit Court

App. 47

APPENDIX J

52313

ILLINOIS SUPREME COURT

CLELL L. WOODS, CLERK

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

October 1, 1979

Ms. Betty Sander Harvey

834 Monroe Avenue

River Forest, IL 60305

No. 52313—Betty Sander Harvey, etc., petitioner, vs. Har-

ris Trust and Savings Bank, respondent. Leave

to appeal, Appellate Court, First District.

The Supreme Court today denied the petition for leave

to appeal in the above entitled cause.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

App. 48

APPENDIX K

IN THE APPELLATE COURT, STATE OF ILLINOIS

FIRST DISTRICT

BETTY SANDER HARVEY (a/k/a Davis), Douglas Alan

Davis, and William Porter Davis,

Plaintiffs-A ppellants,

v. NO. 78-322

HARRIS TRUST AND SAVINGS BANK,

Defendant-A ppellee.

NO. 78-322

ORDER

Upon consideration of the petition for rehearing filed by

plaintiff-appellants on July 2, 1979, said petition is

DENIED.

ENTER:

/8/ Mayer Goldberg

Presiding Justice—Division I

/s/ Thomas A. McGloon

Justice

/s/ Ilegible

Justice

July 9, 1979

App. 49

APPENDIX L

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

BETTY SANDER HARVEY (AKA DAVIS)

DOUGLAS ALAN DAVIS

WILLIAM PORTER DAVIS

Plaintiffs

V. NO. 76L 20780

1“ARRIS TRUST & SAVINGS BANK

Defendants

JURY DEMAND

(Filed Nov 12 1976)

The undersigned demands a jury trial.

/s/ Betty Sander Harvey

Name Betty Sander Harvey (aka Davis)

Attorney for Pro Se

Address 834 Monroe Avenue

City River Forest, Illinois 60305

Telephone 369-6549