Day v. Bullen , 226 Ill. 72 ( 1907 )

Mr. Justice Farmer

delivered the opinion of the court:

In the view we take of this case the merits of the controversy are not before us fior determination, for .the reason that the probate court was without power or authority to appoint complainant in the original bill special administrator and authorize him .to institute this suit. Before said order was made Cornelia M. Bullen had first, and during the delay in the admission of the will to probate, been appointed and qualified as administratrix to collect. Afterwards, but before the order of the probate court was made appointing appellant Day special administrator, she was duly appointed and qualified as executrix of 'the will of Robert F. Bullen, deceased, and letters testamentary issued to her in that capacity. We know of no authority for the appointment of ail-administrator by the probate court while Cornelia M. Bullen held that office and exercised the duties and functions pertaining to it. Section n of chapter 3 (Hurd’s Stat. 1905, p. 106,) authorizes the appointment of an administrator to collect and preserve the estate where for any reason there is great delay in establishing or admitting the will to probate. By section 17 it is provided that on the granting of letters testamentary or of administration the power of the administrator to collect shall cease, and it shall be his duty, on demand, -to deliver all property and money in his hands to the person to whom letters of administration or letters testamentary have been granted. When Cornelia M. Bullen qualified as executrix her power and authority as administratrix to collect terminated. The letters testamentary issued to her clothed her with power to collect, and to do and perform all other acts pertaining to the office of executrix, so long as said letters remained unrevoked by the court granting them. The causes for which letters testamentary or of administration may be revoked, and the proceeding for such revocation, will be found in sections 26 to 39 of said chapter 3. (Hurd’s Stat. 1905, p. 109.)

It is not contended here, however, that the letters testamentary to Cornelia M. Bullen were revoked or asked to be revoked. The petition of Robert F. McDonald, referred to in the' statement of the case and upon which the appointment of Day as administrator was made, was in the alternative. Its prayer was, that a special administrator be appointed to sue Cornelia M. Bullen, executrix, “or that in lieu thereof a citation issue against Cornelia M. Bullen requiring her to show cause why she should not list and inventory said property as property of the estate of said Robert F. Bullen, deceased.” None of the grounds provided by statute authorizing the revocation of letters testamentary were set up in the petition and it contained no prayer 01-request for the removal of the executrix. It was held in Munroe v. People, 102 Ill. 406, that an order revoking letters of administration not made in pursuance of and in accordance with the provisions of the statute on that subject is a nullity and absolutely void, and we are of opinion an order appointing a special administrator of an estate where there is a duly qualified and acting executor is equally void. The only authority we know of for the appointment of a special administrator without the revocation of letters previously granted is that provided in section 72 of said chapter 3. That section authorizes the appointment of an administrator pro tern to appear and defend for the estate where the executor or administrator has filed a claim against said estate. That section, however, could have no application to this case, as the executrix does not claim to have any demand against the estate. Her claim is, that the property sought to be recovered by the special administrator became her property by transfer from her husband, for a valuable consideration, before his death." The bill was not filed by .the special administrator for or on behalf of any creditor of Robert F. Bullen, deceased, and it contains no allegation that the alleged transfer of the stock from the deceased to his wife was fraudulent, but it proceeds entirely upon the .theory that said stock was the property of Robert F. Bullen at the time of his death but has since that time been converted and appropriated by Cornelia M. Bullen, who now claims it as her individual property.

Robert F. McDonald had such an interest in the estate of Robert F. Bullen, deceased, as to authorize him to invoke the aid of the court under sections 81 and 82 of the Administration act, and the petition filed by him we think sufficient' for that purpose. Those sections of the statute authorize the probate court, upon a statement under oath being made by any person interested in the estate that any person has in his possession or has concealed or embezzled any goods, chattels, moneys or effects belonging to any deceased person, to require such person charged to appear before the court for a hearing, and to make such order in the premises as the case may require. These sections are broad enough to include not only property that belonged to the deceased at the time of his death and has not been changed or altered since, but also the proceeds or value of property which came to the hands of the person charged and has been converted. (Dinsmoor v. Bressler, 164 Ill. 211.) The fact that Cornelia M. Bullen was executrix and claimed the property in controversy in her individual capacity could not affect the remedy provided by said sections 81 and 82. (Martin v. Martin, 170 Ill. 18.) In that case the petition for a citation was filed by a devisee under the will, and charged .that the executors, or some of them, withheld and secreted certain mortgages, school bonds and street railroad bonds belonging to the estate. The petition was amended so as to charge Serena M. Martin only, one of the executors, with secreting and withholding the property and claiming it as her individual property. A hearing- was had in the county court and the petitioner appealed from the order of that court to the circuit court, and the case finally reached this court. In the opinion delivered by this court it was said (p. 24) : “At the hearing in the circuit court she [Serena M. Martin] appeared, answered and defended in her individual right, although protesting against the jurisdiction. The protest was not against the jurisdiction of her person; and it. would have made no difference if it had been, since any objection of that kind was waived by the entry of a general appearance and defending on the merits. (Hercules Iron Works v. Elgin, Joliet and Eastern Railway Co. 141 Ill. 491; Mix v. People, 106 id. 425.) The protest was against the power of the court to try the issue, and therefore related to the subject matter. It was unfounded, as the county.court acquired jurisdiction of the subject matter by the amended petition.”

For the reasons given, the bill was properly dismissed by the circuit court and the Appellate Court properly affirmed that decree. But it is not to be understood that by affirming the judgment of the Appellate Court we either approve or disapprove of the conclusions announced by the Appellate Court in its opinion upon the merits of the controversy. We have not given the merits of the case our consideration. The determination of this case can have no influence on a proceeding, if one shall be instituted, under section 81 of the Administration act, for in that proceeding the parties would not be the same as they are in this case. It necessarily follows that as appellant Edwin C. Day had no right to file the bill, the pleading of Robert E. McDonald, whether it be considered an intervening petition or a cross-bill, was properly dismissed also. Wachter v. Blowney, 104 Ill. 610; Dows v. City of Chicago, 11 Wall. 108.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.