Simms v. Guess

Mr. Justice Sample

delivered the opinion of the Court.

The points primarily made by appellant are, 1st, that the remedy to compel him to inventory the property included in the order of the court was by citation, under Sec. 81, Chap. 3, S. & C., p. 226, and not by exceptions to his inventory; 2d, that he could not be compelled to inventory a debt against himself, which was in dispute, except on a trial under written pleadings and a judgment obtained against him.

Section 51, Chap. 3, S. & C., p. 212, provides that an “administrator shall make out a full and perfect inventory of all such real and personal estate, or the proceeds thereof, as are committed to his superintendence and management, and as shall come to his hands, possession or knowledge.”

This duty, enjoined by express law, the County Court has the power to enforce. The administrator or executor is not the sole judge of the performance of that duty. Necessarily the ultimate determination must rest in the court, otherwise, if the representative refused to inventory any property, the court "would be powerless to administer on the estate. It is no answer to say there would be a remedy on the representative’s bond. While the law affords such remedy, it is not exclusive. Such remedy exists as to any failure to perform official duty, as for a failure to collect Avhat is due the estate and pay same out on the order of the court, yet it would not be contended that the court was poAverless to require the representative to perform such duty because damages for such failure could be incurred in his bond.

The representative, if he claims property ordered to be inventoried, pan note the fact in explanation of his action on the inventory (Lynch v. Dinan, 66 Wis. 490, Hilton v. Briggs, 54 Mich. 265), which would not bar him of a hearing on the merits in a regular trial at law; such an order would be only interlocutory and not an adjudication of the right of property. The mode of proceeding clearly so indicates. It is summary on the part of the court in the nature of a preliminary investigation to determine probabilities, and not ultimate rights. Ho one would claim final adjudication for such an order as to third parties. It has no more effect on the representative in case he claims the property. While he is a party to the proceeding, it is only in a representative, and not in an individual capacity. The effect and purpose of such preliminary order is to bring the matter of the disputed property within the jurisdiction of the court, so that an adjudication in the interest of the estate on such property may be had.

Such order in its scope and effect is like one requiring a receiver to list property in dispute. Seavey v. Seavey, 30 Ill. App. 625. Having listed such property, the course of the representative, in order to have an adjudication on the right of property according to the course of the common law, is clearly outlined in May v. Leighty et al., 36 Ill. App. 17. Sec. 72, Chap. 3, provides the course to be pursued when one executor or administrator has a demand against his testator or intestate’s estate. The court in such case will appoint some discreet person to appear and defend the estate, at which hearing a trial is had according to the course of the common law, with right of appeal, etc.

Appellant’s counsel' insists the remedy was by citation under Sec. 81, Chap. 3. The evident purpose of that section is to compel the discovery of property of the estate, or of information in regard thereto “ of which the executor and administrator is ignorant ” in order that it may be listed in the inventory and ultimately brought within the control of the court.

In the case at bar the administrator was not ignorant of any facts necessary to enable him to list the property in dispute, or to identify or locate it. It was not concealed and therefore discovery was not required.

The appellant having wrongfully made the costs, there was no error in adjudging that he should pay them. Covington case, 124 Ill. 363.

It is urged the evidence does not warrant the order made. This point is made on the theory that the order has the effect of a determination of the right of property, without expressing any opinion as to the sufficiency of the proof in that regard. We hold it was sufficient to require the property to be listed.

It is also objected that the Circuit Court did not require its order to be certified to the County Court for further proceedings in accordance therewith. Such an order would have been proper, but it was not essential. The order can be certified to the court below, whereupon that court will, of course, conform to it.

The order and judgment of the Circuit Court is affirmed.