Miller v. Miller , 82 Ill. 463 ( 1876 )

Mr."Justice Dickey

delivered the opinion of the Court:

Appellant contends that no widow’s award can lawfully be allowed, because “ the same was not presented to the county court for confirmation or approval within two years from the issuing of letters of administration.”

The claim of a widow for “ the widow’s award,” out of the personal property of an estate, is not, under our statute, a “ demand ” against the estate, in the same sense as the claim of a creditor. It may more properly be denominated a right to a portion of the personal property of the estate. (Cruce v. Cruce et al. 21 Ill. 47.) In a certain sense it may be called a demand against the estate, and it is so called in the second clause of section 70, of the chapter on “ The Administration of Estates,” R. S. 1874. page 116; but the reasons applicable to the provision which bars all demands not presented within two years from the granting of letters, have no application to the widow’s award. The administrator is not presumed to be cognizant of all claims of mere creditors of deceased, and therefore a necessity existed that such claims should be exhibited within some limited time, so that a definite basis might be had on which to dispose of the assets. The widow’s award, however, requires no such presentation. The whole tenor of the statute shows that the preservation of the same requires no action on the part of the widow whatever, until she has notice that the award has been made by the appraisers.

In' chapter 3, of Eevised Statutes of 1874, it is provided, that whenever letters of administration are granted, the administrator shall make out a full inventory of the property of the1-estate, which shall he returned, to the office of the clerk of the county court within three months from the date bf the letters of administration. It is also provided, that on granting letters of administration, the connty court shall appoint three appraisers to appraise the personal estate, and, after taking the oath prescribed, it is provided that “ the appraisers shall proceed, as soon as conveniently'may be, to the discharge of their duty, and when the bill of appraisement is completed, the appraisers are required, by statute, to certify the same, and deliver the same to the administrator, to be. by him returned to the clerk’s office within three months from the date of the letters of administration.

" It is further enacted that “ the widow residing in this State, of a deceased husband whose estate is administered in this State, shall, in all cases, (in exclusion of debts, claims, charges, legacies and bequests, except funeral expenses,) be allowed, as her sole and exclusive property forever, the following ” (enumerating the list of personal property), “ which shall be known as the widow’s award.” *"* * “The appraisers shall make out and certify to the county court an estimate of the value of each of the several items of property allowed to the widow, and it shall be lawful for the widow to elect whether she will take the specific articles set apart to her, or take the amount thereof out of other personal property at the appraised value thereof, or whether she will take the amount thereof in money. "x" * And in a,Tl such cases, it shall be the duty of the * * * administrator to notify the widow as soon as such appraisement shall he made, and to set apart to her such article or articles of personal property, not exceeding the amount to which she-may be entitled, and as she may select. * * * When there is not property of the estate of the kinds mentioned in'the statute, the appraisers may award the widow a gross- sum in lieu thereof, except for family pictures, jewels' and ornaments. If the administrator discovers, at any time after an inventory-and appraisement is made, that the assets do .not exceed the amount of the widow’s allowance, after. der ducting the necessary expenses incurred, he shall report the facts to the court; and if the court finds the report to he true, he shall order said assets to be delivered to the widow by the administrator, and discharge the administrator from further duty.” ■ .

■ It is‘plain, from the whole tenor of these statutory regula7 fcions, that, in. the phrase (found in the seventh clause of secr tien 70, page 116, R. S. of 1874,) “and all demands not (exhibited within two years, as aforesaid, shall be- forever barred,” the word “demands” was not intended to embrace what is known as “ the widow’s award,” The word “ demands,” in that phrase, as will appear by the context, has relation alone to such demands against the administrator as are required to be exhibited to the court by the parties to whom they belong. In one sense, “ the widow’s award ” is undoubtedly a “ demand against the -estate,” and it is mentioned. as such in the-second clause of this section 70, hut the same words in the seventh clause of the section, it is evident, are not" used in the samp sense. We are all of opinion that the limitation of two years found in this section 70 has no reference whatever to the matter of “ the widow’s award.” ,

In passing upon this question, and upon another question to be hereafter mentioned, it is well to inquire what meaning is to be attached to the word “ allowed,” as used in this statute, in reference to the matter of “ the widow’s award.” Does the statute require, as an essential, that the county court shall make an order of allowance, in order to invest the widow with an available and definite right to “ the widow’s award ?” In section 74 it is said, “ the widow * * * shall (in all cases, in exclusion of debts, claims, charges, legacies and bequests, except for funeral expenses,)- be allowed, as her sole and exclusive property forever,” etc., “ which shall he known as. the widow’s award.”

By whom is this allowance to be made? Is it by the appraisers, or by the administrator, or by the order of the county court, or is it by the effect of the statute, that she is allowed this widow’s award by law, and that her right is not dependent upon the action of the administrator, appraisers, or the court ? Has either the administrator, or the appraisers, or the county court, the jurisdiction to determine that she shall not he allowed this award?

Section 75 provides that “ the appraisers shall make out and certify to the county court an estimate of the value of each of the several items of property allowed to the widow.” The county court is not required, by the statute, to make any order prior to this certificate, adjudging that the widow shall be allowed u the widow’s award,” or adjudging what are the articles of property of which the appraisers are to make an estimate of the value, and certify the same. That is fixed by statute. Again, it is enacted in the same section, that, where there is not property of the estate of the kinds mentioned in the enumeration of the articles which are to constitute the widow’s award, “ the appraisers may amaré the widow a gross sum in lieu thereof,” etc. The law gives her certain articles of property, or their value. The judgment of the appraisers is, by law, to fix the value of the' items of personal property so allowed by statute to the widow, and, so far as we are advised, it is the universal practice that this estimate be approved or set aside by the court.

While the statute does not, in express words, require that this estimate of value by the appraisers should be approved by the court, in order to give it binding force as such, it has long been the practice to do so, and it seems very appropriate that it should be so.

The county court, from its general powers in supervising the administration of estates, has the power, for cause shown, to set aside an appraisement bill, or a report of appraisers making out and certifying to that court an estimate of the value of the items of property mentioned in the statute as “ the widow’s award,” and to order the appraisers to consider the subject again, and make another appraisement bill, or another estimate of the 'value of the items allowed by statute to the widow as the widow’s award, and for cause shown, the court might remove the appraisers and appoint other appraisers, and charge them with these duties. But, while the county court has this supervisory authority, it has no power to revise and modify the appraisement bill or the appraisers’ estimate of the value of the property allowed as the widow’s award. The county court has no power to substitute the judgment of the court for the judgment of the appraisers, for the statute has made the estimate of the appraisers effective, and not an estimate made by the county court. As well might the circuit court, where a verdict of a jury has been returned, take up the verdict and revise and modify it, and enter this modified verdict as the verdict in the case.

The form of the judgment in the county court in this case is, “ that said award be approved, and that it be paid to said Kate L. Miller, widow of said decedent, in due course of administration.” The issue tried in this case was made upon objections interposed by appellant against the approval of the award, which was, in substance, a motion or application on the part of appellant for an order of the county court setting aside the award, and the judgment, in substance, is a judgment refusing to set the same aside.

When the case came to the circuit court by appeal, the circuit court could not properly exercise any power in the case save that which the county court could and should have done. The circuit court, properly, could only have ordered the estimate of the appraisers to be set aside, or have refused to make such order.

The matter was tried de novo in the circuit court, and all the evidence given is preserved in the bill of exceptions.

After a careful examination of the proofs, we find no proof tending to show that the estimate of the appraisers should be set aside. There is no proof whatever bearing upon the question of the value of any of the items of property, or tending to show any misconduct on the part of the appraisers. In determining whether the award should be set aside, the value of each item may be examined, but no proof of that kind was made. Upon the proofs, the judgment of the county court ought to have .been affirmed.

The judgment entered in the circuit court is an allowance of a gross amount less by more than $200 than the sum of the items of the estimate approved by the county court. The circuit court seems (even without proof on that subject) to have substituted the judgment of the judge presiding for the judgment of the appraisers. This was clearly erroneous.

The appellant assigns for error the judgment of the circuit court in allowing a gross sum instead of passing on each item of the appraisers’ estimate. This would indeed be an error, if the court had the power to revise and modify the estimate of the appraisers, but it is not perceived wherein the rights or interests of appellant are injuriously affected by this irregularity.

Appellee has assigned cross-errors upon this record, and complains that “ the judgment of the circuit court in allowing said award is for an amount too small.” The estimate of the appraisers amounted to $1050. The judgment of the circuit court, in effect, set aside this estimate to the extent of $250. Tor this error, the judgment must be reversed at the costs of appellant, and the cause remanded to the circuit court with directions that judgment be there entered affirming the judgment of the county court, and that appellee recover in the circuit court her costs in that court.

Judgment reversed.