Same v. Same , 8 Ill. 409 ( 1846 )

The Opinion of the Court was delivered by

Koerner, J.

At the October term of the Peoria Circuit Court, 1843, Rudolphus Rouse filed a bill of complaint on the Chancery side of said Court, setting forth that one Robert Bowles, late of New York city, had departed this life intestate several years ago; that the names of the heirs of said Bowles were unknown to" complainant, as also their place of residence; that on the 11th day of April, 1842, he had been appointed, by the Probate Justice of Peoria county, administrator of said Bowles, and that a claim had been filed and allowed against the estate in favor of one Joshua J. Moore, for the sum of $1316-34. The bill further states that said Bowles left no personal property of any kind in the State of Illinois, but, at the time of his decease, was the owner of numerous tracts of land in said State, which are particularly described in said bill, and contain several thousands of acres, some of which tracts are situate in said county of Peoria. The bill prays for an order to sell said lands, for the payment of said debts, and general relief.

The notice in this case was given in pursuance of the fifth section of the Act authorizing suits against persons whose names are unknown, approved 27th February, 1837, and the fifth section of the Chancery Practice Act of 1833. Gale’s Stat. 257 and 140. This notice also complied, in regard to the. length of time for which it must be given, and to the number of publications in a newspaper, with the 98th section of the Statute of Wills of 1829. Ibid. 711.

Ellen Catherwood, styling herself one of the heirs of Robert Bowles, appeared by counsel, and filed a demurrer to said bill or petition, which was overruled by the Court, and, on leave, a plea was then filed for the defendants, as the record states, denying that Rouse was, (at the time of filing the plea,) the public administrator of Peoria county, which plea, having been set down for argument, was decided to be insufficient. The certificate of the Probate Justice, showing indebtedness, &c. was produced, and a decree made for the sale of the lands mentioned in said bill, or so much thereof as should be necessary to pay said debts and costs, upon giving six weeks notice of time and place of such sale.

The errors assigned on this record are:

1. That the Court had no jurisdiction;

2. The notice of pendency of suit was not sufficient;

3. The petition did not present such a case as would authorize the Court to make a decree in the premises;

4. The Court erred in overruling demurrer and plea; and,

5. The decree is informal and erroneous.

The objections presented by the first and second assignments of error are, in our opinion, not well founded. The law authorizing an administrator to apply for a sale of real estate of his intestate provides that “he shall present his petition to the Circuit Court; (Sec. 98, Wills; Gale’s Stat. 711;) and (Sec. 99,) that it shall be the duty of the Circuit Court, at the time and place specified in the notice, to hear and examine the allegations and proofs of such administrator, or such other persons interested in said estate as may think proper to resist the sale, and, upon due examination, &c. to order and direct the sale of the whole, if necessary, but if not, then of so much of the said real estate, from time to time, as will be sufficient to pay such debts.” Under these provisions, it is not perceived why an administrator may not give to his petition the form of a bill in Chancery. It is not usual to do so, and was probably adopted in this case for the purpose of making unknown persons parties to this petition, but we can see no objection to it, as the same notice, and, in fact, longer notice is required in this form of proceeding, and as the defendants cannot possibly lose any advantages whatever which are secured to them in the more ordinary proceeding by petition.

The counsel for the plaintiffs in error seem to think that if the administrator had proceeded in the usual way, he would have had to make the heirs of Bowles defendants by name, and could not have given notice to persons unknown. But this is a misapprehension. The administrator may give a general notice, by publication, of his intention to apply for the sale of real estate, without naming particular persons or defendants, and in this he is warranted by the language of the statute, which says, that said notice shall request all persons interested in said real estate, to show cause w'hy it should not be sold, and which allows any one, whether made a defendant or not, to resist such sale, provided he has any interest therein. See said sections 98 and 99. And indeed such is the general practice in our State. There is a slig'ht defect in the notice In this, that the words “State of Illinois” are not .added to the words “County of Peoria.” But as the only known heir, Ellen Catherwood, appeared and demurred, and all the defendants, if there were more than one, put in their plea, all other insufficiencies in the notice, if there be any, were waived. Plaintiffs’ counsel insist in their argument, that the appearance of Ellen Catherwood was not binding, because she was at the time of her appearance, and still is a married woman. The record of the Circuit Court is silent upon this subject, and we have no right to presume any female to be married, unless the fact of her marriage be established. We can see no informality or error in the form of the decree .as is alleged by the fifth error assigned. The order is for the sale of the whole of the land, or so much thereof as will pay the debt. The Court might have directed the sale of a part only, and then it would have been necessary to specify what part. In this case the decree means no more nor less than this, that all the land should be sold, that in case, however, a part of the premises should bring enough the administrator should sell no more, a direction which was only expressive of what the duty of the administrator already required of him, independent of any order to that effect. Nor was it necessary, as it is contended, for the Court to determine in the decree the particular estate which Bowles bad in the land. The bill alleges that he died the owner of the land, and as the bill was taken as confessed, the defendants declining to answer further, the fact of ownership was sufficiently proved for the purposes of this order.

The main objection to this order, however, is presented by the third and fourth assignments of error. It is contended that the petition does not show such a case, as would authorize the Court to act in the premises, because the Probate Justice of the Peace had no power to grant letters of administration at all, where a non-resident dies leaving no personal, but only real estate within our State. It is true that the Statute of Wills of 1829, made no provision for the granting of administration in any case where the intestate, whether a resident or non-resident, left no personal estate. It provided in the 53d section, “that whenever any person shall die intestate in any county in this State, or when any non-resident shall die intestate, leaving goods and chattels, rights and credits, or either in this State, and no widow or next of kin, or creditor or creditors shall be living within this State, administration of the goods and chattels, &c., shall be granted to the public administrator of the county in which such intestate died, or in which the goods and chattels, &c. shall be found, in case such intestate shall have been a non-resident.”

In order to remedy this omssion and to carry out the principle of converting realty into personalty, for the purpose of discharging debts, a principle which our Legislature has been always anxious to establish and extend, a supplemental Act was passed in 1833, Gale’s Stat. 723, the first section of which reads as follows: “In all cases where any person shall die seized or possessed of any real estate within this State, or having any right or interest therein, and shall have no relative or creditor within this State, or if there be any, who will not administer upon such deceased person’s estate, it shall be the duty of the Judge of Probate, upon the application of any person interested therein, to commit the administration of such estate to the public administrator of the proper county, and such public administrator may be made a party to any suit or proceeding in law or equity, and shall to all intents and purposes be liable as the personal representative of such deceased person.” We cannot agree with the plaintiff’s counsel, that this section only applies to cases where residents die seized or possessed of real estate. The language is broad and comprehensive, embracing all classes of persons, and the necessity of providing for such administration is certainly much greater in cases of non-residents dying intestate, than in cases of residents, because the latter are seldom wholly destitute of relatives -in the State in which they die. We freely admit that this law may be much abused, but still we cannot for this reason repeal it judicially. Courts should be extremely cautious in applications of this kind, and should carefúlly watch the interests of relatives, so as to prevent a sacrifice of the estate by all the means which the law has placed in their hands for the protection of the fatherless, against the cupidity of heartless creditors, or the devices of mere pretenders.

The counsel for plaintiffs in error attach great weight to the words “proper county,” used in this section, and argue from that expression, that non-residents could not be meant to be embraced by the law, as no county could be said to be the proper county for administration on their estate, since they had no domicil in the State nor personal property any where within it. We cannot see any difficulty in these words. The proper county in case of non-residents dying, leaving lands in this State, is the county where such lands or a part of them lie, and in such a county administration is to be granted.

There is nothing, however, in the case before us, which makes it absolutely necessary to consider the said Bowles as a non-resident at the time of his death. The expression used in the bill, “late of New York city,” might have been applied to him, although he may have died in Illinois. But whether he was a resident or not, the letters were properly granted in Peoria county, some of the lands being situated there.

The plea filed by the defendants was properly overruled. It did not deny that Rouse was public administrator at the time administration was granted to him. The certificate of the Probate Justice filed with the pleadings, showed that the was such administrator when he took out the letters. The plea was also in other respects informal and insufficient.

We have examined the proceedings in this case with much care, and with a certain degree of jealousy, as we are well aware that great injustice may be committed under the provisions of the law as it now stands, and as in this case we could not shut our eyes' to the fact, that a large estate, nominally so at least, has been sold for the satisfaction of a comparatively small debt, proved before the Probate Justice, perhaps, without notice to any one, or without resistance by any one, but yet we have not been able to discover any error or irregularity which would justify the Court in reversing the order and in avoiding the sale.

The decree is, therefore, affirmed with costs.

Decree affirmed.