FIRST DIVISION

September 29, 2008

No. 1-08-0138

PATRICIA POLLY, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County.

)

v. )

)

THE ESTATE OF LEE POLLY, Deceased, )

)

Defendant-Appellee, )

)

and )

)

JANICE K. WALKER-TAYLOR, ) Honorable

) Allen S. Goldberg,

Defendant. ) Judge Presiding.

JUSTICE WOLFSON delivered the opinion of the court:

Patricia Polly sued the estate of her husband, Lee Polly,

for breach of contract and for an accounting. The trial court

granted the estate's motion to dismiss as untimely the counts

directed against the estate. Patricia contends that the

limitations period does not apply because she claimed rights

given her by the will, not as a creditor of Lee's estate. In the

alternative Patricia contends that either the will or a letter

her attorneys sent to the estate meets the statutory requirement

for a timely filed claim. We affirm the dismissal of the claims

against the estate.

BACKGROUND

On May 15, 1982, Patricia Borden and Lee Polly signed a Pre-
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Nuptial Agreement that provided, "as long as the parties are

living together as husband and wife, any earnings of LEE shall be

treated as joint funds." Nuptials followed. Lee later opened an

account in joint tenancy with his daughter from a previous

marriage, Janice Walker. 

Lee died on June 4, 2003. His will named Patricia and

Janice as his heirs, and it directed the executor to comply with

the Pre-Nuptial Agreement. The executor filed the will in

probate court on June 9, 2003.

On May 17, 2005, Patricia's attorney, in a letter to the

attorney for the estate, said: 

"Patricia Polly has a claim against the Estate equal to

100 percent of the earnings of Lee Polly from the date

of the marriage. As you are surely aware, the

Premarital Agreement called for all of the earnings of

Lee Polly after the date of the marriage, to be deemed

joint property. Upon Mr. Polly's death, those

earnings, wherever situated, became the property of

Patricia Polly. *** Accordingly, in the event this

matter is not resolved, Ms. Polly has instructed me to

pursue the claim against the Estate and the individual

holders of any property previously belonging to Mr.

Polly."
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Patricia filed her complaint against the estate and Janice

on November 2, 2005. After amendment, the complaint included two

counts against Janice, one count against the estate for breach of

contract, and one count against both Janice and the estate for an

accounting. The estate moved to dismiss both counts against it

based on the statute of limitations. See 735 ILCS 5/2-619(5)

(West 2002). The court granted the motion and expressly found,

at Patricia's request, no just reason to delay enforcement or

appeal of the order dismissing both counts against the estate. 

Patricia now appeals.

DECISION

Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) gives us

jurisdiction to consider the appeal. We review de novo the

dismissal based on the statute of limitations. Raintree Homes,

Inc. v. Village of Long Grove, 209 Ill. 2d 248, 254, 807 N.E.2d

439, 443 (2004).

The Probate Act provides:

"(a) Every claim against the estate of a decedent

*** is barred as to all of the decedent's estate if:

(1) Notice is given to the claimant as provided in

Section 18-3 and the claimant does not file a claim

with the representative or the court on or before the

date stated in the notice ***.
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(b) Unless sooner barred under subsection (a) of this

Section, all claims which could have been barred under

this Section are, in any event, barred 2 years after

decedent's death." 755 ILCS 5/18-12(a), (b) (West

2002).

Section 18-3 of the Probate Act establishes the duty of the

estate's representative to deliver to each known creditor, and to

publish, "a notice stating *** that claims may be filed on or

before the date stated in the notice, which date shall be not

less than 6 months from the date of the first publication or 3

months from the date of mailing or delivery, whichever is later,

and that any claim not filed on or before that date is barred." 

755 ILCS 5/18-3 (West 2002).

Patricia first contends the statute of limitations does not

apply because she has not made a "claim against the estate"

within the meaning of section 18-12. The complaint includes two

counts against the estate: one for breach of contract and one for

an accounting. The Probate Act defines a "claim" to include "any

cause of action." 755 ILCS 5/1-2.05 (West 2002). The counts for

breach of contract and for an accounting both state causes of

action. In re Estate of Winters, 239 Ill. App. 3d 730, 737, 607

N.E.2d 370, 374 (1993); Santa Claus Industries, Inc. v. First

National Bank of Chicago, 216 Ill. App. 3d 231, 236, 576 N.E.2d
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326, 329 (1991).

To avoid the broad statutory definition of a claim, Patricia

relies on Taylor v. Continental Illinois National Bank & Trust

Co., 26 Ill. App. 3d 610, 325 N.E.2d 444 (1975). In that case,

David Shandling assigned his interest in a debt to the plaintiff,

to repay the plaintiff for a loan. After Shandling died, the

plaintiff sued Shandling's estate to recover the plaintiff's

interest on the debt. The court held the plaintiff had not

stated a claim against the estate subject to the Probate Act's

limitation period, because a claim for an asset the decedent

assigned to the plaintiff, which never should have passed to the

estate, does not count as a claim against the estate.

Patricia contends Lee's earnings should have passed to her

directly, without ever becoming part of the estate, because he

assigned the earnings to her in the Pre-Nuptial Agreement.

"The existence of an assignment is dependent upon proof

of intent to make an assignment and that intent must be

manifested. [Citation.] As stated in the Restatement

(Second) of Contracts, 'An assignment of a right is a

manifestation of the assignor's intention to transfer

it by virtue of which the assignor's right to

performance by the obligor is extinguished in whole or

in part and the assignee acquires a right to such
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performance.' Restatement (Second) of Contracts §

317(1) (1981). When a valid assignment is effected,

the assignee acquires all of the interests of the

assignor in the property that is transferred." 

Strosberg v. Brauvin Realty Services, Inc., 295 Ill. 

App. 3d 17, 30, 691 N.E.2d 834, 843 (1998).

In the Pre-Nuptial Agreement Lee unequivocally makes the

earnings joint funds for both Lee and Patricia to use. The

Agreement does not assign to Patricia Lee's right to his

earnings. Thus, Taylor's pronouncement about the effect of an

assignment does not apply here.

Patricia also contends that she has not stated a claim

against the estate because she has pled a right to recover under

the will. The will incorporates by reference the Pre-Nuptial

Agreement that forms the basis for the counts of Patricia's

complaint directed against the estate. However, Patricia did not

formulate either count as a claim under the will. Instead she

pled one count as a claim for breach of contract and she made the

other count an action for an accounting for funds which she

claimed under the Agreement. Both counts state contractual

claims against the estate rather than a right as an heir under

the will. The statute of limitations in section 18-12 of the

Probate Act applies to Patricia's claims against the estate.
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The trial court, relying on In re Estate of Doyle, 229 Ill.

App. 3d 995, 594 N.E.2d 774 (1992), found that a 6-month

limitation period barred Patricia's claims. In Doyle, as in this

case, the estate showed that the claimants received actual notice

of the death, but the estate did not prove written notice

directed to the claimants, informing them of the ending date for

the statutory period for claims against the estate. In Doyle,

unlike this case, the estate proved that it published notice of

the opening and closing of the estate, as required by section 18-

3(a) of the Probate Act. See Ill. Rev. Stat. 1987, ch. 1101⁄2,

par. 18-3(a). When the claimants in Doyle filed their claim

against the estate, the applicable statute provided:

"All claims against the estate of a decedent ***

not filed *** within 6 months after the entry of the

original order directing issuance of letters of office

are barred as to all of the decedent's estate, unless

notice is not published as provided in subsection (a)

of Section 18-3." Ill. Rev. Stat. 1987, ch. 1101⁄2, par.

18-12(a).

The court in Doyle held that actual notice of the death gave

the claimants sufficient notice of the need to file their claim

against the estate within the 6 month statutory period, even

though they did not see the published notice that specified the
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date of the termination of the 6 month period for claims against

the estate.

The legislature amended section 18-12 in 1989. 755 ILCS

5/18-12, Historical and Statutory Notes, at 303 (Smith-Hurd

2007). The section as amended makes no reference to a 6-month

period for filing claims. Instead, it disallows claims filed

after "the date stated in the notice" required under section 18-

3. Section 18-3, as amended, requires the estate's

representative to publish, and to mail to all known creditors,

notice of the opening of the estate. The published notice and

the mailed notice must state the ending date for filing claims. 

That date must fall at least 6 months after the first publication

of the notice, and it must also fall at least 3 months after the

date of mailing notice to known creditors. The statute no longer

sets a 6-month maximum period for the filing of all claims

against the estate. While the claimants in Doyle should have

known they had no more than a 6 month period for filing claims

against the estate, the current statutes no longer set any

maximum period other than the two-year limit of section 18-12(b).

We hold the Probate Act no longer includes a firm 6-month

limitation on the period in which claimants must file any claim

against the estate. The date provided in the notice published

and mailed in accord with section 18-3 sets the applicable period
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for filing claims. Because the estate here failed to prove that

it published and mailed notice as required by section 18-3, only

the two-year limitations period of section 18-12(b) applies. 

Thus, Patricia had two years from the date of Lee's death to

inform the estate of her claims.

On May 17, 2005, about a month before the end of the twoyear limitation period, Patricia's attorney sent a letter to the

estate's attorney, informing the estate that Patricia instructed

the attorney to pursue a claim against the estate if their

dispute did not reach a satisfactory resolution. Patricia

contends this letter qualifies as her timely-filed claim.

In re Estate of Lane, 345 Ill. App. 3d 1123, 804 N.E.2d 113

(2003), also involved a contention that a letter mailed to the

estate's representative qualified as a timely-filed claim against

the estate. The court held letters to the estate's

representative may meet the requirements for claims filed against

the estate, as long as the letters "sufficiently show the intent

necessary to state a claim." Lane, 345 Ill. App. 3d at 1126. 

For such a showing, "at the very least a letter must state an

unequivocal intention to pursue a claim against the estate." 

Lane, 345 Ill. App. 3d at 1126. 

Patricia's attorney does not state such an unequivocal

intention in his letter. Instead he threatens to make such a
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claim if the negotiations do not otherwise reach a satisfactory

resolution. The letter of May 17, 2005, does not make Patricia's

claims against the estate timely.

Finally, Patricia contends the will itself counted as her

timely notice of her claims, because the will directs the

executor to abide by the terms of the Pre-Nuptial Agreement. The

will does not notify the executor of Patricia's intent to claim

that Lee or his estate breached a contract with her, or that Lee

or his estate needed to account for disposition of certain funds. 

Thus the will does not give the estate notice of the nature of

the claim, as required by section 18-2 of the Probate Act. 755

ILCS 5/18-2 (West 2002).

Patricia first filed her claim against the estate, within

the meaning of section 18-12(b) and section 18-2 of the Probate

Act, on November 2, 2005, when she filed her complaint in the

circuit court. Because Patricia filed her claim more than 2

years after Lee's death, section 18-12(b) bars the claim. 

Therefore, we affirm the judgment of the trial court dismissing

both counts of Patricia's complaint against the estate.

Affirmed.

R. GORDON, P.J., and GARCIA, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

(Front Sheet to be Attached to Each Case)

 Please use PATRICIA POLLY, 

following form:

Plaintiff-Appellant,

 Complete v. 

 TITLE

 of Case THE ESTATE OF LEE POLLY, Deceased, 

Defendant-Appellee,

and

JANICE K. WALKER-TAYLOR,

Defendant.

 Docket Nos. No. 1-08-0138

 COURT Appellate Court of Illinois

 First District, 1st Division

 Opinion 

 Filed September 29, 2008

JUSTICES JUSTICE WOLFSON delivered the Opinion of the court:

 

R. GORDON, P.J., and GARCIA, J., concur.

APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin:

Circuit Court of

Cook County; the Appeal from the Circuit Court of Cook County. 

Hon.___________, 

Judge Presiding. The Hon. Allen S. Goldberg, Judge Presiding.

For APPELLANTS, Indicate if attorney represents APPELLANTS or APPELLEES and

John Doe, of include attorneys of counsel. Indicate the word NONE if

Chicago. not represented.

For APPELLEES, For Appellant, Michael A. Haber and Jennifer M. Ovadenko, 

Smith and Smith, KALCHEIM HABER, LLP, of Chicago.

of Chicago. 

(Joseph Brown, of For Appellee, Timothy J. Storm, LAW OFFICES OF TIMOTHY J.

counsel). STORM, of Wauconda, Illinois. 

 

Also add attorneys for thirdparty appellants

and/or appellees.

(USE REVERSE SIDE IF NEEDED)