Barnes v. Hazleton

Mr. Chief Justice Breese

delivered the opinion of the Court:

The language of the sheriff’s return, forces the implication that the process was served by copy on each individual defendant, and was regular, and justified the default against the adults so served.

As to the plaintiff in error, Harriet Barnes, she was a minor, and should not have been cut off from her distributive share of of her grandfather’s estate on account of the alleged advancement to her deceased mother, without proof that such advancement was equal to her share. Being a minor, she could not bring the share received by her mother, if any was received, into hotchpot. The court, therefore, before decreeing against her, should have required full proof that her deceased mother had received her share by way of advancement. Against an infant nothing is to be intended, but every thing must be proved. Hitt v. Ormsbee, 12 Ill. 166; Hamilton v. Gilman et al. ib. 260 ; Cost et al. v. Rose et al. 17 ib. 278.

As to the objection that the decree was absolute against this plaintiff in error, there was no error in that respect. Under the uniform practice in chancery, in this State, a decree against an infant is, in the first instance, absolute, and no day is given to show cause after he becomes of age. Instead thereof, our statute gives to a minor five years after attaining full age, to bring his writ of error. Gross’ Stat. 514.

For the error specified, the decree must be reversed and the cause remanded.

Decree reversed.