Coen v. Cotterell ( 1909 )

Mr. Justice Shirley

delivered the opinion of the court.

If the appointment of appellant administrator was not legal and proper the order entered by the Circuit Court to the extent that it revokes such order and discharges appellant as administrator should be sustained.

It will be observed from the foregoing statement that more than sixty days elapsed from the death of Samuel Cotterell before application was made by appellant for letters, and that no heir, creditor or other person interested filed the petition asking for such appointment nor was it filed on behalf of any creditor or person interested.

Section 18 of chapter 3 entitled “Administration of Estates” is as follows:

“Administration of the estate of all persons dying intestate shall be granted to some one or more of the persons hereinafter mentioned and they are respectively entitled to preference thereto in the following order:

1st. To the surviving husband or wife or any competent person nominated by him or her.

2nd. To the children or any competent person nominated by them.

3rd. To the father or any competent person nominated by him.

4th. To the mother or any competent person nominated by her.

5th. To the brothers or any competent person nominated by them.

6th. To the sisters or any competent person nominated by them.

7th. To the grandchildren or any competent person nominated by them.

8th. To the next of kin or any competent person nominated by them.

9th. To the public administrator or to any creditor who shall apply for the same.

“Provided, that only such persons as are entitled to administer under this act shall have the right to nominate. When several are claiming and are equally entitled to administration, the court may grant letters to one or more of them, preferring relatives of the whole to those of half blood. Preference and the right to nominate under this act must be exercised within sixty days from the death of the intestate, at the expiration of which time administration shall be granted to the public administrator.

“In 9,11 cases where the intestate is a non-resident, and in all cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of said decedent is a bona fide resident of this State, administration shall be granted to the public administrator; and in all cases where any contest shall arise between the widow, heirs at law or next of kin of the decedent in relation to the grant of letters, and it shall appear to the court that the estate of said decedent is liable to waste, loss or embezzlement administration to collect shall be granted to the public administrator of the proper county to administer such estate until said contest is determined. No administration shall in any case be granted until satisfactory proof shall be made to the County Court to whom application for that purpose is made that the person in whose estate letters of administration are requested is dead and died intestate.

“Provided, That when the heirs are residents of this State and the estate is solvent and without minor heirs and it is desired by the parties in interest to settle the estate without administration this law shall not apply. And further provided, that no non-resident of this State shall be appointed or act as administrator or executor.”

It seems to be the policy of the law that administration should be had upon the estate of all persons dying intestate except as provided in the proviso. This case does not come within the proviso, there being one minor heir, and it was proper for the Probate Court on proper application to appoint some person coming within the qualifications provided in section 18.

It wiil be seen by this section certain persons only are authorized to act and nominate and are given preferences in the order named from the first to the ninth clauses. When none of the persons from the first to the eighth clause inclusive exercise the right to administer, or to nominate some one to act within sixty days from the death of the intestate', administration shall be granted to the public administrator.

Counsel for appellee insist this section is to be read in connection with section 46 of the same act, It reads as follows: “Whenever any person dies seized or possessed of any real estate within this State or having any right or interest therein has no relative or creditor within this State who will administer upon snch deceased person’s estate, it shall be the duty of the County Court upon application of any person interested therein to commit the administration of such estate to the public administrator of the proper county.”

And it is insisted that by this section the appellant as public administrator could not be appointed administrator by the Probate Court in the absence of an application by”some person interested therein.

Section 18 while enacted at a later date did not repeal section 46, and both sections being parts of the same act, should be read together and all the provisions given effect if possible.

“Repeal by' implication is not favored' and if two statutes claimed to be inconsistent can be construed so that each may be enforced that course will be followed.” Butz v. Kerr, 123 Ill. 659; Cook v. Gilbert, 146 id. 268.

Manifestly by section 18, supra, where no preference or right to nominate by the persons preferred is exercised by them within sixty days from the death of the intestate in a case like this, the right to administer is conferred upon the public administrator without the application of any person interested.

We are of opinion that by section 46, supra, where no administration is had upon an estate and the intestate has no relative or creditor in the State who will administer it is the duty of the Probate Court upon application of any person interested to appoint the public administrator and this applies where there had been no administration and where no relative or creditor within the State will administer in order that the estate may be administered, but it has no application to a case where there has already been an appointment under section 18. If there has been such appointment under section 18, the conditions to be remedied by section 46 do not exist.

We are of opinion the order of the Circuit Court in revoking the letters of appellant/and ordering the property of the intestate to be turned over to appellee was erroneous and the order of the Circuit Court is reversed and the order of the County Court in dismissing the petition of appellee is sustained and affirmed.

Reversedl.