delivered the opinion of the court:
Plaintiffs, Jean A. Pape, guardian of the person of Simpson Driskell, Jr., a disabled adult, individually, and as a member of a class consisting of approximately 125 people who are in the same class of remaindermen and reversionaries, and the class, appeal from the affirmance by the appellate court of an order entered November 6, 1989, by the circuit court of Sangamon County.
BACKGROUND
On September 23, 1988, plaintiffs filed a four-count complaint in chancery in the circuit court of Sangamon County against defendant,
FACTS
Simpson was bom on August 27, 1912. At 12 years of age, Simpson had middle-ear disease and encephalitis. Mental retardation was apparent at age 16 when Simpson was found to have an IQ of 38 and a mental age of approximately 6 years. On September 19, 1930, he was found by the probate court of Sangamon County to be feeble-minded. A conservator was appointed for Simpson on November 28, 1939. Simpson’s grandfather’s will left his estate, upon the death of Simpson’s grandmother, to Simpson “during Ms life” and then to the heirs of Simpson’s body or, if Simpson were to die without any heirs of the body, to the grandfather’s and his wife’s heirs. There has accumulated in Simpson’s guardiansMp account approximately $150,000 from his grandfather’s estate.
Defendant, a second cousin, once removed, was appointed Simpson’s guardian on October 6, 1980, and served as such until she resigned in January 1985. There•after, Simpson was without a guardian for a period of several months. During that period, Simpson and defendant were married on August 20, 1985. On August 23, 1985, John Ray, a distant cousin of Simpson, was appointed his guardian. On November 26, 1985, defendant petitioned for the removal of Ray as Simpson’s guardian. In her petition, defendant alleged, inter alia, that, as Simpson’s wife, she was entitled to preference for appointment as his guardian. On December 31, 1985, Ray filed a counterpetition requesting a determination of the validity of Simpson’s marriage to defendant. Therein, he alleged that the marriage was void because Simpson was feeble-minded at the time of the marriage, incapable of performing a marriage ceremony or of entering into a marriage contract. (See Ill. Rev. Stat. 1985, ch. 40, par. 301(1).) Ray resigned as Simpson’s guardian on June 6, 1988, prior to a resolution of Ms and defendant’s respective petitions. That same day, Pape, another distant cousin of Simpson, was appointed Ms successor guardian.
On September 23, 1988, plaintiffs filed the chancery complaint seelcing, inter alia, a declaration of the invalidity of Simpson’s marriage to defendant. Count I thereof sought a declaration of invalidity on the ground that the marriage, having been performed on the same day the license therefor was issued, violated section 207 of the Illinois Marriage and Dissolutiоn of Marriage Act (the Marriage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 1 et seq.), which provides that a marriage license becomes effective one day after its issuance unless a court orders that it is valid when issued (Ill. Rev. Stat. 1987, ch. 40, par. 207).
Count II of the chancery complaint sought a declaration of invalidity of the marriage on the ground that at the time thereof Simpson lacked the mental capacity to understand and consent to the contract of marriage. (See Ill. Rev. Stat. 1987, ch. 40, par. 301(1).) Therein, Pape alleged, inter alia, that:
(1) on September 29, 1930, Simpson was found to be feeble-minded, has ever sinсe remained feeble-minded, and at all times mentioned was feeble-minded and had no ability to comprehend the execution of any contract and the results thereof, including a contract of marriage;
(2) at the time of his purported marriage to defendant, Simpson lacked themental capacity to understand and to consent to the contract of marriage and that, ever since he was found to be feeble-minded, Simpson has suffered from mental retardation and had development problems to the extent that he was incapable of knowing that he had even gone through a ceremony of marriage;
(3) as a matter of equity, she should be allowed to proceed with the counterpetition filed by Ray which had not been ruled upon prior to his resignation as Simpson’s guardian.
On May 4, 1989, defendant filed her answer and affirmative defenses to plaintiffs’ complaint. Defendant’s affirmative defenses asserted that count II of plaintiffs’ complaint was barred by the statute of limitations provided in section 302(a)(1) of the Marriage Act. That section requires that actions to declare the invalidity of the marriages of mental incompetents, brought pursuant to section 301(1) of the Marriage Act, be filed within 90 days of the date the petitioner learns of the “described condition” of the incompetent. (Ill. Rev. Stat. 1989, ch. 40, par. 302(a)(1).) The same day, defendant filed a petition in the probate case related to Simpson’s guardianship seeking Pape’s removal as Simpson’s guardian and her appointment as such in place of Pape. After having earlier answered the petition, Pape sought leave, on September 25, 1989, to file a counterclaim to the petition raising the same issues as counts I and II of the chancery complaint.
On November 6, 1989, the circuit court of Sangamon County entered an order, inter alia:
(1) denying Pape’s motion for summary judgment on the issue whether Simpson and defendant’s marriage was void due to the violation of section 207 of the Marriage Act;
(2) denying defendant’s petition to remove Pape as Simpson’s guardian;
(3) granting defendant’s motion for summary judgment on count II of plaintiffs’ chancery complaint and Pape’s counterclaim in the probate action on the ground that those actions were barred by section 302(aXl) of the Marriage Act;
(4) finding that Pape had shown by a preponderance of the evidence that Simpson was incompetent at the time of the marriage to defendant and that, but for the bar of the statute of limitations, it would declare the marriage invalid.
Both sides appealed the aspects of the trial court’s judgment unfavorable to them. The Appellate Court, Fourth District, affirmed in all respects. (
We: (1) affirm the rulings below relating to the first and sixth issues presented; (2) reverse the rulings below relating to the second issue; and, in view thereof, (3) find it unnecessary to address the remaining issues.
STANDING
Before addressing the merits of the parties’ appeals, we must address defendant’s assertion that Pape lacks standing to prosecute an appeal to this court as a result of Simpson’s death on July 28, 1990. In so arguing, defendant relies upon section 302(b) of the Marriage Act, which provides that a declaration of invalidity of marriage may not be sought after the death of either party to the marriage under,
SECTION 302
In affirming the trial court’s application of the statute of limitations of section 302(a)(1) in bar of count II of plaintiffs’ chancery complaint, the appellate court first reasoned that Pape had knowledge of Simpsоn’s condition during the entire period from June 6, 1988, the date of her appointment as his guardian, to September 23, 1988, the date the chancery complaint was filed. As such, the court concluded that the 90-day limitations period had expired as of the latter date.
On appeal of the appellate court’s ruling with respect to section 302(a)(1), Pape first contends that the court erred in deciding that the 90-day limitations period provided therein starts to run as of the date of the appointment of a guardian of the allegedly incompetent person to a marriage sought to be annulled under section 301. In this regard, Pape asserts that the mere appointment of a guardian of a person is not ipso facto proof that the ward cannot contract a marriage. Rather, Pape asserts, it was necessary for her to gather evidence that Simpson was, in fact, incompetent to have entered the marriage contract with defendant before she . could properly bring an action for a declaration of its invalidity based on such incompetency.
We agree with Pape that the appointment of a guardian of a person is not sufficient, in and of itself, to show that the person was incompetent to have consented to a marriage. In this regard, we note that section 11a—3 of the Probate Act of 1975 provides, inter alia, that a court may adjudge a person disabled
1
and may appoint a guardian of his person if, because of his disability, he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person. In contrast, section 301 of the Marriage Act provides that a declaration of invalidity of a marriage may be obtained where a party, inter alia, lacked the capacity to consent to the marriage because of, inter alia, mental incapacity or infirmity. (Ill. Rev. Stat. 1989, ch. 40, par. 301.) Moreover, a person lacks capacity to consent to a marriage where he is unable to understand the nature, effect, duties and obligations of marriage. (Larson v. Larson (1963),
For instance, it is well established that the appointment of a conservator is not conclusive on the issue of possession of sufficient mental capacity to execute a will but may be considered as evidence on that issue. (Pendarvis v. Gibb (1927),
As such, we agree with Pape that where, as in the instant case, a guardian of a person is appointed after her ward’s marriage,
The foregoing notwithstanding, we find from the record that Pape had sufficient facts, as of the date of her appointment as guardian of the person of Simpson, to have formed the belief or reached the conclusion that he lacked the requisite capacity to have entеred the marriage with defendant.
In support of the petition filed in 1987 by John Ray, Pape’s immediate predecessor as Simpson’s guardian, to invalidate the marriage to defendant, Pape, along with several other of the remaindermen comprising the plaintiff class, filed a letter with the circuit court of Sangamon County. While the letter is not in the record, Pape’s testimony as to its contents clearly reveals that she had knowledge, or at least professed to have knowledge, in 1987, that Simpson lacked the mental capacity to have entered the marriage with defendant.
At a September 1989 evidentiary hearing, Pape was asked a series of questions by defendant’s counsel relating to the letter signed by her, among others, in support of Ray’s petition. Specifically, Pape was asked the following questions and gave the following responses thereto:
“Q. During the period that [Ray] was the guardian of the person, Simpson Driskell, which was prior to December, 1987?
A. Right.
Q. You signed then this letter that he had prepared, is that right?
A. All right, yes, sir.
Q. And I note in the last paragraph that one of the purposes behind your signing at that time was to join with Mr. Ray as guardian of the person.
A. To attack the validity of the marriage of Simpson Driskell and Wilma Driskell, that’s right.”
Considering the allegations of Ray’s petition to invalidate Simpson’s marriage to defendant in light of Pape’s admission regarding the purpose of the letter, it is clear that she must be held to have known of sufficient facts to form a belief or reach a conclusion that Simpson lacked the capacity to enter the marriage with defendant at the time she signed the letter and, thus, as of the date of her appointment as Simpson’s guardian.
In his petition, Ray alleged that Simpson “was declared feeble-minded many years ago and is still feeble-minded.” Ray further alleged that the marriage between Simpson and defendant was void because Simpson was feeble-minded at the time of the marriage and incapable of performing a marriage ceremony or of entering into a marriage contract.
Pape, having joined, in December 1987, in the petition to have Simpson’s marriage to defendant invalidated on the ground of incapacity, cannot now assert that, before bringing her own action to invalidate the marriage after her appointment as Simpson’s guardian, she needed time to gather evidence as to whether he, in fact, lacked the capaсity to have entered the marriage.
Payton v. Payne (1980),
Notwithstanding the similarities between the situation of the guardian in Payton and Pape, she ignores that the former filed the action within 42 days of his appointment, i.e., the date upon which he acquired standing to do so, and thus, well within the 90-day limitations period of section 302. (Payton,
In view of the foregoing, the trial and appellate courts did not err in finding that section 302(a)(1) of the Marriage Act barred Pape’s action for a declaration of invalidity of Simpson’s marriage to defendant.
SECTION 13-207
The appellate court also rejected Pape’s argument that, even if count II of the chancery complaint was barred by section 302(a)(l), her counterclaim in the probate proceeding, which raised the same issue аs that count, was timely pursuant to section 13—207 of the Code of Civil Procedure. Section 13—207 provides that a defendant may plead a counterclaim, otherwise barred by a statute of limitations while held and owned by her, to any action the cause of which was owned by the plaintiff or person under whom she claims before the counterclaim was so barred. Ill. Rev. Stat. 1989, ch. 110, par. 13-207.
Specifically, the court concluded that the action as to which Pape’s counterclaim was pled, defendant’s petition to remove her as Simpson’s guardian, was not “owned” by defendant'Or anyone under whom she claimed as that term is used in section 13—207. In so doing, the court noted, citing In re Estate of Sherwood (1965),
The appellate court further reasoned that neither did Pape’s counterclaim concern an action which she owned in the capacity in which she was responding to defendant’s petition for removal. That is, while Pape, in defending against defendant’s petition, was acting on her own behalf in defending her right to be guardian, she was, in pursuing the counterclaim for a declaration of invalidity of Simpson’s marriage to defendant, acting on his behalf as his guardian. Therefore, the court concluded that Pape was attempting to counterclaim in a capacity different from that in which she was responding to defendant’s petition and in regard to an action not owned by her.
On appeal of the appellate court’s ruling with respect to section 13—207 of the Codе, Pape first asserts that, contrary to the court’s reasoning that defendant did not own the cause of action as to which her counterclaim was pled, defendant qualified as an “interested person” as that term is used in section 23—2 of the Probate Act. 2 Specifically, Pape asserts, defendant was a person interested in her removal as Simpson’s guardian by virtue of her claimed status as his wife and by virtue of her status, arising therefrom, as one of Simpson’s heirs.
Pape next challenges the appellate court’s reliance on the fact that she did not bring her counterclaim in the same caрacity in which she was responding to defendant’s petition for removal. Specifically, she
We find that the trial and appellate courts erred in holding that Pape’s counterclaim did not satisfy the requirements of section 13—207 in order to avoid the limitations bar of section 302.
Firstly, we agree with Pape that, contrary to the holdings below, defendant did “own” the cause of action to remove her as Simpson’s guardian as that term is used in section 13—207. As the appellate court noted, a proceeding to appoint, and, thus, by implication, one to remove, a guardian is a proceeding in the nature of an action on behalf of the State for the purpose of protecting the incompetent person concerned. (See In re Estate of Pine (1958),
Thus, contrary to the appellate court’s conclusion, defendant did own a cause of action for the removal of Pape as Simpson's guardian. Moreover, defendant owned the action as of the date of Pape’s appointment and, thus, before Pape’s counterclaim was barred by the expiration of the limitations period established in section 302(a)(1) of the Marriage Act, as further required by section 13—207.
Similarly, we find that the appellate court also erred in concluding that Papе’s counterclaim to defendant’s action for her removal, being brought as it was in her capacity as Simpson’s guardian, was not, for that reason, an action owned by her, as that term is used in section 13—207. Just as defendant owned a cause of action for Pape’s removal as Simpson’s guardian by virtue of her standing to bring such an action, we find that Pape owned a cause of action for a declaration of invalidity of Simpson’s marriage to defendant within the meaning of section 301 of the Marriage Act by virtue of the standing conferred upon her to do so by section 302 of the Act. In re Marriage of Drews (1986),
In this rеgard, we further conclude that the appellate court erred in relying, as an additional ground for its ruling, upon the fact that Pape was attempting to plead a counterclaim against defendant in a different
In view of our conclusion that the courts below erred in construing section 13—207 as not saving Pape’s counterclaim despite her failure to comply with the limitations period of section 302(a)(1) of the Marriage Act, we need not address Pape’s, further arguments related to that error.
REMAINING ISSUES
Pape also asserts that the appellate court also erred: (1) in affirming the trial court’s conclusion that Simpson and defendant’s failure to wait one day after obtaining their marriage license before getting married, as provided in section 207 of the Marriage Act, did not invalidate the marriage based on Haderaski v. Haderaski (1953),
SIMPSON’S COMPETENCY TO MARRY
In her cross-appeal, defendant asserts that the trial court’s finding that Simpson was incompetent at the time of the marriage to defendant was against the manifest weight of the evidence. We disagree.
We find that the appellate court’s opinion thoroughly discussed the relevant evidence аnd applied the proper standard of review to hold that the trial court’s finding was not against the manifest weight of the evidence. (
CONCLUSION
For all of the reasons stated herein, we: (1) affirm the judgments of the trial and appellate courts that count II of plaintiffs’ chancery complaint for a declaration of invalidity of the marriage of Simpson Driskell, Jr., and defendant is barred by section 302(aXl) of the Illinois Marriage and Dissolution of Marriage Act; (2) reverse the judgments of the trial and appellate courts that Pape’s counterclaim for a declaration of invalidity of the marriage of Simpson
Appellate court ajfirmed in part and reversed in part; circuit court ajfirmed in part and reversed in part.
Notes
Sections 11a—1 and 11a—2 of the Probate Act define a disabled person as one who, inter alia, is developmental^ disabled as the result of any condition which results in impairment caused by or similar to that caused by mental retardation and who, because of his developmental disability, is not fully able to manage his person or estate. Ill. Rev. Stat. 1989, ch. 110½, pars. 11a—1, 11a—2.
Section 23—2 provides that on the petition “of any interested person” or on its own motion, a court may remove a personal representative for any of several causes listed therein. Ill. Rev. Stat. 1989, ch. 110½, par. 23-2.
3 In this regard, we agree with Pape that the appellate court incorrectly cited section 11a—3a of the Act in noting that “a reputable person” can bring an action to remove a guardian. (Ill. Rev. Stat. 1989, ch. 110½, par. 11a—3(a).) That section deals with the appointment, not the removal, of a guardian.