Stow v. Kimball

Catón, C. J. We said in Turney v. Turney, 24 Ill. 625, in a direct proceeding to reverse the order of sale, that the petition in a proceeding like this, should contain the names of the heirs; but that case was finally decided upon another point. We are not prepared to hold that the whole proceeding is void where the heirs are not named in the petition. The statute, which is the one hundred and third section of our Statute of Wills, says the administrator “shall make out a petition to the Circuit Court of the county in which the administration shall have been granted, stating therein what real estate the said testator or intestate died seized of, and so much thereof as will be necessary to pay his or her debts as aforesaid, and request the aid of the court in the premises.” This is all the statute says about the form or contents of the petition, and we cannot hold that the proceeding was void, when the petition, as in this case, contains the precise statements which the statute says it shall contain. It would be difficult to compute the number of titles that would be overturned by such a decision. Sound and judicious practice no doubt requires that the names of the heirs and devisees, and their grantees, if known, should be inserted in the petition, but the statute has not prescribed it, and we must not hold the proceeding void for the want of it. The statute also requires the petitioner to serve a copy of the petition and account mentioned in the fore part of the section, on each of the heirs or their guardian, “ or by publishing in the nearest newspaper, for three weeks successively, commencing at least six weeks before presenting of said petition, of the intention of presenting the same to the Circuit Court for the sale of the whole or so much of the real estate of the said testator or intestate as will be sufficient to pay his or her debts, and requesting all persons interested in said real estate to show cause why it should not be sold for the purposes aforesaid.” Such a notice was published for the time specified, in a newspaper in Chicago, the county seat where the court was held. An objection, which we hardly think worthy of notice, is made that it is not shown that this was the nearest newspaper. The statute has no such trifling meaning as that it is necessary to measure with chain or tape line, the distance from the judges’ bench to the printing office, to see which of two or more newspapers published at the county seat is the nearest. Any newspaper printed at that place answers the intention of the law. That this petition and notice gave the court jurisdiction of the subject-matter and of the parties interested in the' real1 estate, we are satisfied. The court was thus properly called upon to hear, to consider and to decide upon the matter, and when it has so decided, that decision is valid and binding everywhere, till it is reversed on a direct proceeding by a superior court. In this collateral action we cannot inquire whether such a case was made out before the court, as justified its decree. If the court acted without proof, or even if it were affirmatively shown that there were no debts to be paid out of the proceeds of the real estate, still we could not, for that reason, treat the decree as void. As before remarked, it is binding till reversed upon a direct proceeding for that purpose. The decree is very broad in its terms, and directs the administratrix to sell all of the real estate mentioned in the petition, including the property in question. At the first sale under the decree, but a part of the property was sold. This sale was reported to and approved by the court, and there the order stopped—afterwards the administratrix sold the property now in controversy. It is now objected, that as no order was made at the time the first sale was approved, either ordering a further sale or continuing the cause, that it then ceased to be a matter pending in court, and consequently the power to sell expired. We can hardly adopt this conclusion. The administratrix was, by the order, directed to sell the whole of the estate. She sold a part and reported it, and her proceedings thus far were approved. We do not see where the necessity was for the court to make any other order at that time. The first decree told her to sell the whole, which necessarily included that which remained unsold, and it would have been •mere repetition for the court to make another order directing ¡the sale of the residue. Although the order of sale very properly required the •administratrix to report her doings under the order of the court, and she should have been compelled by the court to comply with that portion of the order, yet neither the decree of the court nor the statute, made such a report and approval necessary to the validity of the sale, as is the case in the sale of the estate of minors for their support and maintenance. It seems to be the intention of the statute to hold the sale valid wherever there is a valid decree ordering the sale. Section 106 says, that if any executor or administrator who shall be ordered to make sale of real estate as aforesaid, “ shall sell the same contrary to the provisions of this chapter,” he shall forfeit the sum’of five hundred dollars, “provided that no such offense shall be deemed to affect the validity of such sale.” This supercedes the necessity of inquiring whether the administratrix followed strictly the directions of the statute in making the sale. The last objection is, that the property did not belong to the intestate, but was the property of the heirs in their own right. At the time of his death, the intestate had a contract for the purchase of this land upon which but a portion of the purchase money had been paid. Eor the evident purpose of defrauding somebody, the administratrix went to Bailey and got him to treat the contract as forfeited for non-payment of the installments, and give her a new contract for the same land for the benefit of the other heirs and herself, then filed this petition and sold the land under it, as having belonged to her father, placed the proceeds among the assets and paid for the land out of the assets, and then took a deed “ to the heirs” of the intestate; and now, coolly turns round to the purchasers and tells them that her father had no interest in the land, and that consequently she could sell them none—that the land all the time belonged to herself, and the other heirs—and that although the heirs got the benefit of the purchase money, they must now hold the land also. This maneuver is too transparent to require a moment’s hesitation to treat it as it really deserves. We do not hesitate to say, that a court of equity must hold, that the conveyance which wras made to the heirs was in fact made under and in pursuance of the contract of purchase with the intestate, and that the heirs must be treated as trustees holding legal title for the benefit of those who have acquired the equitable title, which was in the intestate at the time of his death. We affirm the decree, and order that the master in chancery in the decree mentioned, execute the deeds as therein mentioned before the next term of this court, to be held in this division, and that he report his doings herein at the said next term. Decree affirmed. After the foregoing opinion had been recorded, Mr. Goudy, for the plaintiff in error, filed a petition for a re-hearing, which was granted. After the cause had been again heard, the following opinion was announced. [Reporter.] Catón, C. J. As some of the questions involved in this suit are of very great importance, a re-argument of this cause was ordered after an opinion had been filed affirming the decree below. The whole case has been again considered by the court, with the additional light afforded by the re-argument, and we are very clear that the judgment affirming the decree, and the opinion which was filed, should be adhered to. There is one point which was presented upon the first argument, and has again been urged upon this, which was not sufficiently noticed in the opinion, and which will now be considered. It is insisted that before the last sale was made, there were no debts remaining unpaid, and consequently the power of the administratrix was necessarily exhausted, there remaining no legal object for which the land could be sold. Now this may be so as to the debts which had been allowed and entered of record by the County Court, but we are not prepared to find it was so in point of fact. Certain it is that there were debts against the estate which were paid in part at least out of the proceeds of those lands, and which it did not suit the purposes of the administratrix ever to have presented or allowed against the estate. Such was the case of the entire purchase money for the land which was due to Bailey, and every dollar of which, according to the testimony of Mr. Waughop, was paid out of the assets of the estate, and the last payment, at least, was made out of the proceeds of the sale of these lands. Now certainly as between third parties, if not always and everywhere, those were good and valid payments. This was a legitimate claim against the estate, and the administratrix, by paying it out of the assets, no doubt took the responsibility of proving that the claim was a valid one, when called to account for such payment. But conceding the utmost that is claimed, that enough money had been raised by the first sale of lands to pay all the debts, and we still think that the last sale was not void. The court had complete jurisdiction of the matter, and in the exercise of that jurisdiction it decreed that all of the lands mentioned in the petition, specifying and describing them particularly, should be sold to pay the debts of the estate. Surely, if here was jurisdiction in the court to make this decree, it furnished authority to the administratrix to make the sale. It may have been an erroneous decree, but it was not void. To hold that every purchaser at such a sale shall go and see that in truth there are debts owing by the estate sufficient to require the sale of the particular land, at the peril of getting nothing by his purchase, would drive all prudent men from such sales, and leave only sharpers and speculators as purchasers, and enable them to get the lands at mere nominal prices, or at least at most ruinous sacrifices. Ho surer plan could possibly be devised to make estates insolvent, and to fritter away the real estate of heirs and devisees. We adhere to our former decision, and affirm the decree. Decree affirmed, Mr. Justice Walker, dissenting.