Bennett v. Whitman

Walker, J. This was an application, by the executors of the last will of Seth Whitman, to the Boone Circuit Court, for license to sell real estate to pay debts. Also for a sale, for the support of the widow and family of the testator, and to obtain a construction of the will, and to be released from the erection of a house for a residence for the family, as required by the third clause of the will. The application was entitled as a petition, and was addressed to the judge of the circuit, and not to the chancellor. The executors call themselves petitioners, throughout the application. Service was had by summons on each of the defendants, and by the publication of a notice of the intended application by the executors for the sale of real estate, according to the provisions of the statute. It is urged that if this is a proceeding under the statute for the sale of real estate, to pay debts, the court in such a proceeding has no power to hear and determine other questions, and to settle other equities, not involved in the question of the necessity for such sale. If this be such a proceeding under the statute, then the court can only exercise the jurisdiction, conferred by its provisions. The statute does not profess to confer nor does it confer general chancery powers, but only such as are necessary to attain the end proposed. And this court in the case of Smith v. Mc Connell, 17 Ill. R. 135, hold the doctrine, that in these applications, the administrator has no power “ to support any possessory or real action, in law or equity, for the recovery or maintenance of possession or title; or to clear up and vindicate title from clouds, from adverse claims.” And that his “ rights and powers were no broader than his duties; and they are limited to the sale of the title and estate of the intestate, and the due administration of the proceeds.” And if an executor has other and greater powers, they are conferred alone by the will, and cannot be conferred by the court in this proceeding. Under the statute, the court is only authorized to license and empower the executor or administrator to sell real estate, for the payment of debts, and in a proceeding under its provisions, all beyond, is unauthorized. If this was a proceeding under the statute, then the court had no jurisdiction to determine, whether the executors were required by the will to erect the dwelling-house, or that it was discretionary, nor to authorize the sale of real estate to support the family. Those questions could only be determined by other and different proceedings. This decree nowhere finds the amount of the indebtedness, or the personal assets to meet them, which was essential, if it were a proceeding under the statute ; and it does not limit the sale to that amount, nor does it require that the requisite notice shall be given, and that the sale should be at public vendue, and to the highest and best bidder; but on the contrary authorizes it to be made, either at public ,or private sale, at the option of the executors. These are fatal errors to a decree, under a statutory proceeding for the purpose of paying debts. It was not contended, that this was a proceeding under the statute, to sell the property of minors for their support, maintenance, or education, or for reinvestment, or to be loaned. This proceeding has scarcely an element of such an application, and cannot be sustained under its provisions. If the court had jurisdiction to render this decree, it must be upon the grounds that it was a bill in chancery, and that the case made by it, falls within the general chancery powers of the court. While it has all the marks of a petition under the statute, and seems to have been so regarded by the solicitor filing it, and although, if designed as a bill, it is very informal and untechnical, it may perhaps be so treated. But even treating it as such, there is none of the evidence, upon which the decree was based, preserved in the record, nor does the decree find or recite facts as having been proved, which will sustain it. The decree does not find the amount of personal assets. For aught appearing, there may have been an abundance for the payment of the debts, and the support of the family. It fails to find the amount of the debts against the estate. Nor does it appear how it is necessary, that this sale should be made for the support of the family. For anything appearing in this record, this real estate may all have been highly improved, and very productive, yielding means more than sufficient for that purpose, Nor does it appear why it was impossible or even injurious to the interest of the estate, to erect the dwelling for the use of the family, as required by the will. The court was not vested with a discretion to change the fund from real to personal estate, and no evidence or finding of the court show such facts as authorize such a change. The will certainly did not contemplate it, and fails to confer the power, and nothing short of the most cogent reasons, should induce a court to authorize such a course, and when the rights of minors are involved, it should only be done on proof that renders it clear and satisfactory that it is for their interest, that such a course should be adopted. And this record fails to disclose such evidence or the finding of such facts from the evidence, and is therefore erroneous. The decree of the court below must be reversed, and cause remanded. Decree reversed.