Judd v. Ross

Mr. Justice Craig delivered the opinion of the Court: “ The first question presented involves the legality of the appointment of James Sherley as administrator of the estate of Patrick Boss, deceased. Letters of administration were issued, as it is claimed, by the clerk of the county court of Jefferson county, forty-seven days after the death of Boss, and it is said that Sherley was not entitled to letters, for the reason he was not next of kin, and did not have the relinquishment of the persons who were, nor was he a creditor, nor did he file a petition stating the names of the heirs. Section 55 of the chapter entitled “Wills,” (Rev. Stat. 1845,) which was in full force when the letters were granted, provides : “Administration shall be granted to the husband upon the goods and chattels of his wife, and to the widow or next of kin to the intestate, or some of them, if they will accept and are not disqualified, but in all eases the widow shall have the preference, but if no widow or other relative shall apply within sixty days, the court of probate may grant administration to any creditor; and in case no application be made by a creditor within fifteen days next ensuing the lapse of said term of sixty days, administration may be granted to any person.” Section 64 of the same statute provides, where application is made within the seventy-five days by any person not entitled to letters, as husband, widow, next of kin or creditor, the court of probate, before granting administration, shall cause such applicant to produce satisfactory evidence that the person or persons having the preference have relinquished their prior right thereto. As respects the filing of a petition, the record shows that James Sherley filed with the clerk of the county court an affidavit that Patrick Boss died intestate April 8, 1864, in Jefferson county. This was doubtless intended as a petition for letters, and it may be so regarded. It seems to comply with the statute, except that it fails to state the names of the heirs and the probable amount of the personal estate of the deceased. But this defect would not deprive the court of jurisdiction to act. The objection that the administrator, James Sherley, was not a relative nor a creditor of the deceased, and was appointed before the expiration of seventy-five days from the death of Boss, presents a more serious question. The record shows that the widow relinquished her right to letters of administration, but there was no relinquishment by next of kin, who were entitled to administer, within sixty days after the death; nor was there a relinquishment by the creditors, who had fifteen days after the expiration of -the sixty days. Sherley, being neither a creditor nor relative of the deceased, was not strictly entitled to letters of administration until the expiration of seventy-five days, unless the widow and next of kin and creditors had before that time relinquished the right. But the record before us fails to show that Sherley was appointed administrator by the county court before the seventy-five days from the death of Boss expired, and in the absence of that fact from the record we will presume he was not appointed before the statute authorized the appointment. It does appear that Sherley appeared before the county clerk on May 25,1864, and filed an affidavit of the death of Patrick Boss intestate, and filed a relinquishment from the widow, and that the clerk took from Sherley a bond and issued to him letters; but no action was taken by the court on the doings of the clerk until the June term of said court, 1864, which did not convene, under the statute then in force, until the third Monday of June. During that term of court, but at what date the record fails to show, the court approved the bond filed by Sherley as. administrator, and also approved the letters of administration which had been issued, and ordered them recorded. . Under these orders of the court Sherley became clothed with power to act as administrator, and if - not made until after the twenty-third day of June, the seventy-five days having then expired, Sherley was entitled to the appointment of administrator, and in the absence of proof to the contrary it will be presumed that the order of the court ■confirming the appointment was not made until authorized by the statute.. It is next insisted that the claims contained in exhibit “A” to the petition are not valid claims against the estate, and that they are barred by lapse of time. It appears from the record that James Sherley, the former administrator, filed a petition to the October term, 1886, of the county court of Jefferson county, against the widow and children of Patrick Boss, deceased, who are defendants in the petition in this case, for leave to sell real estate to pay debts. • A list of the claims allowed against the estate was attached to the petition as an exhibit, and they are the same debts involved in this case. The children and heirs of Patrick Boss (the present defendants) were duly summoned. On the hearing the court found that the claims in the list attached to the petition were valid and subsisting claims against the estate, and that there was a deficiency of assets to pay debts of $1793.13. The court also found that Patrick Boss died seized of the east half of the north-east quarter of section 21, and the south-west quarter of the north-east quarter of section 27, and the north-west quarter of the north-west quarter of section 22, in all one hundred and sixty acres, worth $1600, in Jefferson county, Illinois. The court appointed commissioners to assign dower to Minerva A. Boss, widow, in the lands, and the commissioners, after viewing the premises, assigned to her as dower the north-west quarter of the north-west quarter of section 22 and the east half of the south-west quarter of the north-east quarter of section 27, all in township 4, south, range 4, east of the third principal meridian, sixty acres. The report of the commissioners was approved, and the remaining one hundred acres of land were ordered sold to pay the debts of the deceased. In the former application for leave to sell real estate to pay debts these defendants were parties defendants, and the administrator of the estate was petitioner. The former proceeding was therefore between the same parties. The claims involved in that case and in this are the same. Their validity was passed upon and determined. No new claims are here involved. The question of the validity of the claims is, therefore, res judicata, and the heirs (the present defendants) can not again call in question the validity of the claims which were determined valid in the former application for leave to sell real estate. The only remaining question to be considered is, whether the creditors whose claims were allowed against the estate have lost the right to enforce payment by sale of real estate, by delay and lapse of time. It will be observed that the sixty acres of land which the petitioner now seeks to obtain a decree to sell, were set off to the widow as her dower. The forty acre tract was the homestead of Patrick Ross when he died, and the estate of homestead became vested in the widow after his death. From the time the land was set off to the widow she occupied it, in person or by tenant, until her death, in 1892. As soon as the widow died and the land became released from the dower of the widow and her homestead rights by her death, this proceeding was instituted to subject the land to sale to pay the unpaid balance due upon the debts of the deceased. The statute has not provided a period of limitation within which an administrator must file a petition to sell lands to pay debts, but in analogy to our statute of limitations, relating to the lien of judgments, the period of seven years has been adopted as the proper time within which the application should be made. This may be regarded as the general rule. But if the delay is satisfactorily explained, the mere lapse of time will not bar an application for leave to sell land to pay debts.- Here, the fact of the land having been set off to the widow as dower, and forty acres of the sixty encumbered with the right of homestead, and being in the occupancy of the widow by herself and tenants, was a sufficient reason why proceedings were not instituted to subject it to sale by an administrator. Had it been subjected to sale, encumbered, as it was, with the widow’s dower and homestead, nothing would have been realized from the forty acre tract, and the other twenty acres would not have sold for more than would, in all probability, pay the costs. The proceeding would therefore have resulted in no benefit to any one. The creditors would have secured nothing, and the land would have been sacrificed. Had the land been forced to sale at auction, encumbered as it was, it could not have been sold for more than a nominal sum. Moreover, no person has acquired any interest in the land, by purchase from the heirs or otherwise, but, on the other hand, it remains now in the same condition as it did at the death of Ross. Under such circumstances, as was held in Bursen v. Goodspeed, 60 Ill. 277, we think the delay was explained, and it should not work a bar to a proceeding to sell the land after the dower and right of homestead had been extinguished. The decree of the county court will be reversed and the cause remanded. Decree reversed.