Collins v. Kinnare , 89 Ill. App. 236 ( 1900 )

Mr. Justice Freeman

delivered the opinion of the court.

Letters of administration were issued from the Probate Court to defendant in error, Kinnare, in the matter of the estate of one Jane Knaefsey, deceased. Proof of heirship was duly made and the administration of the estate proceeded, until at the October term, 1898, of said court, an order of final distribution was entered.

The plaintiff in error claims to be a niece of the deceased. She states that she is a non-resident and had no notice of the death of the intestate nor of the administration upon the estate until about January 17, 1899, three months after the entry of said order of distribution. She then moved in the Probate Court to vacate said order, but the motion was denied.

February 24th following, she filed her bill of complaint, setting up her claim of heirship, making the foregoing recitals, and alleging that because of the expiration of the term at which said order of distribution was entered, she was unable to move in due time to set it aside or perfect an appeal therefrom, and hence her remedy at law was lost. The bill prays for a restraining order against the administrator; that complainant and her sister, one Kate Kane, be decreed the only heirs at law and entitled to the estate, and that the said final order of distribution be vacated.

A demurrer to the bill was overruled, but upon further consideration the order to that effect was set aside, and the demurrer sustained, upon the ground that the complainant had at and before the time of filing her bill an adequate remedy at law. ■

It is contended on behalf of plaintiff in error that this is one of the exceptional cases in which chancery will take jurisdiction to interfere in the administration of estates, and that otherwise plaintiff in error is remediless.

That the order of distribution was appealable seems to be agreed by counsel for both parties. By virtue of Sec. 123, Chap. 3, R. S., an appeal lies from the Probate to the Circuit Courts in all matters arising under the act relating to administration of estates, in favor of any person who may consider himself aggrieved. This has been held to apply even where such aggrieved person is not a party to the record. Weer v. Gand, 88 Ill. 490. Plaintiff in error, however, states in her bill of complaint that owing to the expiration of the October term of the Probate Court before she had knowledge of the proceedings and entry of such final order of distribution, she was unable to pray for or obtain an appeal, and hence her remedy at law was lost. Counsel for defendants in error on the other hand urges that she still had four months from said January term within which to prosecute a petition for a writ of certiorari in accordance with Sec. 187 of Chap. 79 of the Justices’ Act, which provides that no writ of certiorari shall issue after the expiration of six months from the rendition of the judgment. The provisions of that act are applicable to judgments of justices of the peace, but not to judgments of the Probate Court, to which the common law writ of certiorari may issue. In the former case the office of the writ is to bring up the papers from the justice, and “ the trial is to be de novo as in case of appeals, and not upon the return of the inferior tribunal as in common law cases of certiorari.” Gallimore v. Dazey, 12 Ill. 142 (145). The question is not whether plaintiff in error had time in which to apply for such writ, but whether such application would avail. It is held in this State that the common law writ of certiorari may issue to all inferior tribunals and jurisdictions in cases where they exceed their jurisdiction, and in cases where they proceed illegally and there is no appeal or other mode of directly reviewing their proceedings. Miller v. Trustees of Schools, 88 Ill. 26 (33), and cases cited; Hyslop v. Finch, 99 Ill, 171 (184); White v. Wagar, 83 Ill. App. 592; Doolittle v. Galena & C. N. E. Co., 14 Ill. 381. In the last mentioned case it is said the above are the only instances in which the proceedings of such tribunals and jurisdictions may be so reviewed. The County Court in the administration of estates, and the Probate Court in this case, “ although of limited, is not, strictly speaking, of inferior and certainly is not a court of special jurisdiction,” and when acting within its sphere in the administration of estates, as liberal intendments will be granted in its favor as to proceedings of the Circuit Court. It will beXpresumed that the proof justifying its action is sufficient, though it does not appear affirmatively in the record. Probst v. Meadows, 13 Ill. 157 (169); Bostwick v. Skinner, 80 Ill. 147 (152). In the present case the return to a writ of certiorari would contain only a record of the proceedings, and would fail to show either a want of jurisdiction in the Probate Court or illegal procedure in the entry of such order of final distribution. It is apparent that no error of fact or law would be shown on the face of such record, and conclusions of fact could not be inquired into upon a review under such writ. Low v. Galena & C. N. R. Co., 18 Ill. 325. The presumption would be that the facts justified the action of the Probate Court. It is not claimed that the Probate Court had not jurisdiction or that it proceeded illegally upon the evidence before it at the time of the entry of the order. (B. S., Chap. 3, Sec. 112.) Under these conditions a review of the order and judgment of the Probate Court by certiorari can not avail. Blair v. Sennott, 35 Ill. App. 368.

It is well settled that a court of chancery will not, except in extraordinary cases, supersede the Probate Court in the administration of estates. Freeland v. Dazey, 25 Ill. 294; Harding v. Shepard, 107 Ill. 264 (273), and cases cited. Where, however, a judgment has been obtained by fraud, accident or mistake, courts of equity have jurisdiction to relieve against the judgment unless the party against whom the judgment had been rendered has been guilty of negligence. Foote v. Despain, 87 Ill. 28. In Probst v. Meadows, 13 Ill. 157 (169), equity jurisdiction was assumed in a probate matter where judgment had been rendered in the County Court, upon the ground, apparently, that the courts of law could not grant adequate relief. In that case the record showed that the executor could not take an appeal, for he was ignorant of the judgment, and remained so until after the time had expired within which he could have appealed.

The bill of complaint in the case before us contains allegations showing a somewhat similar state of affairs— Ignorance of the judgment until too late for appeal. If the allegations of the bill are true, plaintiff in error, a non-resident, is one of two persons who are the only heirs at law, and entitled to the estate, which by the order of distribution is to be paid to others not entitled at all, by virtue of proceedings of which she had no notice or knowledge until too late for any remedy at law. It is, we think, apparent that she can have no adequate relief except in chancery.

We express no opinion upon the merits, nor as to the bill Itself. The only question pressed upon our attention is the right to maintain a proper bill in equity, under circumstances such as are here alleged.

The judgment of the Circuit Court is reversed and the cause remanded.