Strauss v. Phillips , 91 Ill. App. 373 ( 1900 )

Mr. Presiding Justice Shepard

delivered the opinion of the court.

Appellees’ demurrer, general and special, was sustained to the amended bill, and the same was dismissed for want of equity. The second special ground of demurrer was that the court of chancery was without jurisdiction, the Probate Court of Cook County having full jurisdiction to afford complainants (appellants) all the relief to which they are or may be entitled in a court of equity.

Appellants, at the conclusion of their statement of facts, specifically state the question involved by the appeal, as follows:

“ Can a court of equity, upon the application of simple contract creditors of an estate, take control of the administration of the estate and supersede the Probate Court, and also restrain a sale about to be made by the administrator of the property of the estate, which sale was brought about by a third party by collusion and fraud with the administrator, the complainants being non-residents of the State of Illinois, who had no notice of the fraud of the administrator and such third party, and who have not filed their claims against the estate in the Probate Court, the two years limitation for filing claims having elapsed before the fraud was discovered ? ”

Appellants admit that it is only in extraordinary cases that a court of chancery will take upon itself the administration of the estate of a deceased person and supersede the Probate Court, but they contend that the allegations of their amended bill bring their case within the exception to the general rule that is conceded by them.

In order that the allegations upon which appellants depend may appear, we have preceded this opinion by a somewhat abbreviated synopsis of them, as presented in appellants’ brief.

It will be observed that by express averment the appellants have never exhibited their or either of their claims to the Probate Court of Cook County. It is true it is alleged in excuse thereof, that the two years "from the issuance of letters of administration to Phillips, within which the claim might have been exhibited, had already run, and that the only property situated within Illinois that belonged to the estate was the real estate that had been inventoried, and that under such circumstances it would be a useless proceeding to exhibit the claims and have them allowed. Conceding such to be the predicament that appellants are in, does the bill by any of its allegations of fraud, or otherwise, make a case for the ousting of the jurisdiction of the Probate Court and enabling the appellants to get at the Illinois real estate through the intervention of a court of general chancery jurisdiction? To reach that real estate and subject it to the payment of appellants’ claims against the estate is the real object of the bill.

It does not seem to us that the allegations of fraud practiced in the conduct of the estate under the Nebraska administration have anything to do with the real case as presented by the bill, unless it may be in some respects which we will mention later. Then are there any sufficient allegations of fraud with reference to the Illinois administration to constitute the case an exception to the general rule that a court of general equity jurisdiction will not supplant and supersede the Probate Court?

It is alleged that Phillips misrepresented to the Probate Court that he was a creditor of the estate, and so fraudulently procured himself to be appointed administrator. That is a matter that the Probate Court has full authority to deal with, if it has been imposed upon in that respect. Besides, it is explicitly alleged in the bill that Phillips is “connected in some manner with the First National Bank of Naperville, which said bank was a creditor of said estate of John Fitzgerald, deceased.” And it is also alleged that the said bank filed and obtained an allowance of a claim in an amount exceeding $5,000 against the estate. We do not understand our statute as prohibiting the appointment as administrator of any competent person, in default of others having a preferred right to the appointment, and particularly so -when the person appointed appears to be interested, personally or in a representative capacity, as a creditor.

But it is insisted that the appointment of Phillips was procured by the fraudulent collusion with him of Mrs. Fitzgerald—she acting in such respect while she was occupying a fiduciary relation to the appellants, as administratrix of John Fitzgerald’s estate in Nebraska.

Mrs: Fitzgerald was not only administratrix of John Fitzgerald’s estate in Nebraska, but she was also administratrix with the will annexed of Cagney, deceased, in Nebraska, and in her latter capacity had been awarded a large claim against Fitzgerald’s estate in Nebraska. True, allegations are made against the validity of that claim, but we do not see, from any allegations of the bill, why the court of proper jurisdiction that allowed the claim in Nebraska is not the proper forum in which to obtain corrections in regard to it. Clearly, however, the allowance against the Nebraska administrator was not conclusive against the Illinois administrator. Smith v. Smith, 174 Ill. 52, and the cases there cited.

Her claim was therefore open to contest when it came to be filed against Fitzgerald’s estate in the Probate Court of Cook County, and the fact that it was allowed, without objection by Phillips, the administrator, as of a particular class, does not prevent the Probate Court of Cook County from a re-examination of it at any time before distribution and adjusting it according to its real merits.

The fact that Phillips, acting for himself or as a representative of the First National Bank of Naperville, a conceded creditor, proceeded, in order to make the claim of that bank through administration proceedings in this State, whereby real property situated in this- State might be reached and applied to Fitzgerald’s debts, was no more than a rightful act.

And we are not aware of any rule that would require that in so doing any notice except such as is required by the statute, and as the public records of the Probate Court affords, needed to be given to creditors in other States. If Mrs. Fitzgerald, as administratrix of Fitzgerald’s estate in Nebraska, was required by the statutes of that State to inventory there real estate known to her to exist in Illinois, and she was remiss in her duty in that respect, the courts of that State are presumably competent to deal with her.

But it would not seem that her dereliction in such matter should be esteemed a sufficient cause to supersede the lawfully acquired jurisdiction of the Probate Court of this State over such omitted real estate, by a court of general chancery jurisdiction.

So far as our Probate Court is concerned, Mrs. Fitzgerald’s position is that of a creditor, and not as administratrix of her husband’s estate. She is entitled to have all her rights as a creditor, notwithstanding she has been derelict elsewhere as an administratrix.

We do not say that she shall reap as an individual, fruits that she has ripened in her representative capacity. That is quite a different proposition than the one before us. The question before us is, in the aspect we are called upon to look at it, one of jurisdiction only. And upon that question we are clear that no case is made by the bill for superseding the. Probate Court, and giving to a general chancery court the administration of the estate. The Probate Court of this county was the proper tribunal for creditors to-go into to subject the real estate located here to their debts, and no sufficient cause is shown by the bill for the ousting of that court from the jurisdiction it has entered upon.

The doctrine announced in Elting v. First National Bank, 173 Ill. 368, Goodman v. Kopperl, 169 Ill. 136, Shepard v. Speer, 140 Ill. 238, Winslow v. Leland, 128 Ill. 304, and a large number of earlier adjudications referred to in those cases, confirm us in our conclusion.

Although there are other considerations than those expressed why the decree of the Superior Court should be affirmed, we do not think we should prolong our opinion.

The order is that the decree be affirmed.