Schlink v. Maxton

Mr. Justice Baker delivered the opinion of the court: We concur in the judgment and in the opinion of the Appellate Court. It is urged in the argument presented to this court, that the motion to set aside the judgment was not made by Pitts, the administrator pro tempore, but was made by Louisa Barrickman, who was in nowise a party to the suit, although she was a child of the intestate. Section 60 of the act in regard to the administration of estates provides that when a claim is presented against an estate for allowance, and no objection is made to such claim by the executor, administrator, widow, heirs or others interested in the estate, then the claimant shall be permitted to swear to his claim. This section gives the heirs the right to be present and contest the justice of the claim, and the adjudication of the court allowing the claim is prima facie binding upon the heirs. (Mason v. Bair, 33 Ill. 194.) We think, therefore, that an heir has a standing in court to institute- a proceeding to set aside the allowance of a claim procured through fraud. We do not regard the case of McIntyre v. Sholty, 139 Ill. 171, as here in point. It was there held that the heir of a deceased person takes nothing until the debts of the deceased are paid, and that therefore, when the estate is admitted to be insolvent, the heir cannot maintain a writ of error to reverse a judgment against the administrator, such heir not being prejudiced by the judgment. But here it does not appear that the estate of Valentine Schlink is insolvent, and there is no presumption that it is not sufficient to pay the just claims against it and leave a residue for distribution among the heirs. Besides this, a writ of error is a common law writ of right, and can be sued out only by one who is either a party or a privy to the record, and it was held in the McIntyre case that there was no privity between the heir and the administrator of a deceased person. But here, under the statute above referred to, the heir has the right to contest the validity of a claim filed against the estate in which he has a substantial interest, and if such a claim has been allowed through fraud, no reason is perceived why he may not invoke the aid of a court invested with equity powers. The county court is a court of general and unlimited jurisdiction in matters of administration. (Propst v. Meadows, 13 Ill. 157; Reynolds v. People, 55 id. 328.) In the settlement of the estates of deceased persons it exercises an equitable jurisdiction adapted to its organization and modes of proceeding. Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 id. 202; In re Steele, 65 id. 322; Brandon v. Brown, 106 id. 519. It is urged that even if the county court, sitting as a court of probate, is invested with equitable jurisdiction, yet it has no power, at a subsequent term, to set aside its own order, judgment or decree except upon a formal bill filed for that specific purpose. We do not so understand the practice in the probate courts. If, however, the position of counsel was conceded, yet the judgment of the circuit court herein would have to be affirmed. The position taken amounts to no more than saying that the jurisdiction of the probate court was called into operation at a subsequent term by improper or insufficient pleadings. If that was the case, the remedy would have .been by appeal, and not by petition for a writ of certiorari. A common law writ of certiorari will lie only when the inferior court or jurisdiction has exceeded its jurisdiction, or else has proceeded illegally, and no appeal is given or writ of error will lie. (Hyslop v. Finch, 99 Ill. 171, and cases there cited; Scates v. Chicago and Northwestern Railway Co. 104 id. 93.) The petition to which the demurrer was sustained shows on its face that the county court had jurisdiction of the persons of the parties, and fails to show that the subject matter of the litigation was not within its general jurisdiction in respect to matters of administration. If that court proceeded irregularly, the remedy by appeal was complete. The statute (chap. 3, sec. 124,) gave a right of appeal from the order of the county court to the circuit court, and a hearing de novo in that court, and an appeal or writ of error from the judgment, order or decree of the circuit court. The judgment of the Appellate Court is afdrmed. Judgment affirmed.