*1 elicited evidence, uncontradicted The introduced plaintiff value of area, real-estate brokers two from And when $9,000. exceed in did not question the property did that McFadden show counsel undertook to plaintiff’s contract, have ability alleged not perform think defendant “I don’t him, saying: stopped I see has offered about his ability purchase. anything for the defend- that line to rebut.” Counsel along nothing ant made no and the case was closed. objection, evidence certainly
Under these there is circumstances, from which the chancellor could conclude reasonably asserted defense was not a bar to the action. plaintiff’s There was no whatever of McFadden’s proof ability and there is evidence to perform, indicate, particularly of the valuation that the light offer was testimony, bona fide. the decree of
Accordingly, the circuit court of Union is affirmed.
Decree affirmed. (No. 34406. et al., Conservator, vs. Appellees, Hoff,
Theodore Laura Meirink, Appellant.
Opinion September 20, *2 House, J., dissenting. H. Donnewald, and Breese, Bremen
James Sterling, Belleville, for appellant.
Craig & Mt. Craig, of Vernon, for appellee. Mr. delivered the Schaefer opinion of the Justice court:
On May 23, 1945, Meirink Laura men adjudged ill tally by the court of county Clair St. County. On August 8, 1956, court of county Macoupin County appointed Theodore Hoff as conservator of her person estate, Rev. (Ill. Act. Probate of the 113(b) to section
pursuant one-fourth a owned She 265(b).) chap. 3, 1955, par. authorized and the real estate, interest a parcel in the interest her sale, at sell, public the conservator minerals and other coal, oil, gas drill obtain for and right on took place September that land. The sale underlying The conservator her was sold to A. Obering. interest E. his of sale on September Clair court of St. 18, county On September 1956, Meirink entered an order finding Laura of man and was recovered from her mental illness capable all her her her to The order restored own aging property. she filed a civil On rights. September 1956, 19, for revocation of the letters conservatorship court of to section 128 County, pursuant (Ill. Probate 280.) chap. 3, par. Stat. 1955, On October for on ruling *3 the court of entered revocation, an order the sale filed on of approving report September it 17, Immediately thereafter entered an order re 1956. the of letters Meirink’s voking conservatorship. Laura motion to vacate the order the of sale approving report was denied on November 21, and she 1956, directly appeals to this A court. freehold Peters, is involved. Peters v. Cf. Ill. with Anderson, 507, Anderson v. Ill. See: 405 338 309. Barnard v. Ill. Michael, 392
She attacks the order the of approving sale on the that ground the court was without jurisdiction to enter such an order after her restoration. contends She that sec- 128 of tion the Probate Act required the of county court Macoupin County to revoke Hoff’s letters of conservator- and that ship, after her restoration that section limited the jurisdiction of the court to proceedings toward looking the settlement of the conservator’s accounts and the restora- tion of the to the property ward. the Obering, purchaser at the sale, maintains that restoration to does competency
111 out the ipso conservatorship, pointing terminate not facto (Ill. the Probate that sections and 129 130 the restored 281, require 1955, 3, 282,) chap. pars. Stat. conservator- letters of to file a to revoke the ward and other any and to notice to the conservator ship give for a hearing interested and also provide party, he directs atten order of In addition, revocation is entered. tion to section the Probate which Act, provides 312 when office of conservator terminates (1) ward the conservator are dies, (2) when letters of revoked and when the conservator dies. Ill. Rev. (3) 3, chap. par. 466.
While it is clear that a restoration to does competency not ipso terminate the office of the it conservator, facto no means follows that the court can continue probate exercise its supervisory over the power property ward after the ward has been restored to competency until the conservator’s office terminates. serious Indeed, constitutional would be a statute questions presented by for the provided exercise of after supervisory power the ward’s had been disability removed. findWe no such provision Probate Act.
The provisions for a for notice and hearing prior revocation of letters of look conservatorship toward a settlement of the personal rights liabilities of the can parties; they be reasonably construed to authorize continued State interference with the property rights the restored ward. (Cf. People ex rel. Smith v. County Court Fremont County, 106 Colo. P.2d 476; re In Hires’ Estate, Ill. App. 566, In the case 568.) before us it was the order approving sale that deprived *4 the ward of her property. Until that time there was no sale and even the bid highest "is a mere offer to buy.” v. (Ehrgott Seaborn, Ill. 292, 295.) The court was 363 without to authority approve the sale after the fact of restoration had been to brought its attention.
112 of the
The orders of motion denying plaintiff’s sale and the of approving report reversed. the are to vacate approval reversed.
Orders Mr. House, dissenting: Justice the majority. I cannot with the result reached agree chap. of the Probate Act (Ill. Section 128 revoca a for for the of provides petition 3, par. 280) filing notice directs such 282) tion section of act (par. no juris a has thereon. To that the court hearing say final and the diction between the of the time filing petition into the in the order reads of hearing discharge resulting statute is It a clear attempt which not there. is something to legislate.
A sell instru- drill the through right an sell lease was an order to mentality filed, oil-and-gas been had the lease entered, held, sale had been public been duly bid in and all the sale reported, of the filing for revocation of the conservator’s letters. The only to be done was the formal thing remaining of the approval after the sale, statutory expiration for period objections. filing objections No were of sale report within statute the period provided by nor was there any inade- charge fraud, or overreaching quacy consideration. The case of Ehrgott Seaborn, v. Ill. is no au
thority for the in this but holding cause, merely followed the rule that there is no sale until of the approval report of sale. In that case the sale had been made and a report of sale filed. Objections followed and it was shown that a substantially increased offer had been made. The court found that it was to the interest of the that the parties premises be resold, disapproved a ordered resale. It should be noted that the procedure followed there with accordance the statute. *5 only the court am of the opinion I than rather transaction the duty, complete but power, If objections letters. by revoking midair it let dangle objec- If no on. have been passed should filed they were it did, as court, duty was the then it tions were filed, sale. to enter order approving the conservator’s until jurisdiction court retained The Probate office was terminated. Section 287 of a acts personal that all (par. specifically provides 441) revocation of to law done prior representative according valid. me in the absence letters are It seems is alleged fraud and none inadequacy consideration, or en- or the order entered proved, should been tirely have affirmed. proper (No. 34419. People ex rel. Collector, Kelly, County Ap
The John J. Avery Coonley vs. pellee, School, Appellant.
Opinion September 20,