Watke v. Stine

Mr. Justice Scott delivered the opinion of the court: It is first argued that the decree of sale is not founded upon any report of the commissioners finding that the premises are not susceptible of division without manifest prejudice to the parties in interest, as neither additional report contained that statement. The report of February 18,' 1904, embodied the necessary recital. Upon exceptions being filed to this report, it was referred back to the commissioners, who made an additional report giving their reasons for finding the premises not divisible. A motion was then made to discharge the commissioners and for the appointment of others in their stead. That motion was overruled, but the report was again referred to the commissioners with directions to make a further report. Thereupon they made a second additional report, reciting that they had again considered the matters committed to their charge and could find no feasible plan by which the lands could be divided “without prejudicing the interests of the parties.” The decree of sale embodies the first report in full and that report is by the decree confirmed and approved, and as that report contains the finding in question, we think the objection without merit. The basis upon which the report was twice re-committed to the commissioners was the objection of plaintiffs in error grounded upon their assertion that the lands were divisible. Upon the filing of the second additional report plaintiffs in error objected to the same for the reason that the premises were divisible and for the further reason that the commissioners were not disinterested. An examination of the objections, however, shows that the repeated findings by the commissioners that the premises were not divisible are the only substantial manifestation of partiality charged, so that in fact the only objection to the report itself is that it finds the premises not divisible, while plaintiffs in error urged in the court below that they were divisible. No evidence was offered in support of these objections. The court did not refuse to hear evidence, as none was offered, and for this reason the objections were properly overruled, under the decision of this court in Miller v. banning, 211 Ill. 620, where it is said: “If appellants desired to raise the question that the commissioners were not justified in finding that the premises could not be divided, they should have made an objection to their .report to that effect and offered evidence in support of their objection.” . While it has been frequently said that as between a sale and partition the courts should favor a division of the land so that the existing form of the inheritance may not be dis- ■ turbed, it is yet true that the sale of the realty and a distribution of the proceeds afford a method of dividing the property that assures to each owner the exact portion thereof to which he is entitled. The bill herein was filed prior to the expiration of the time within which claims might be presented against the estate of the deceased. The administrator was made a defendant and answered that the personal property would not meet the debts of the estate and that the deficiency would be $550. No evidence was taken on this subject and the decree does not provide for the payment of any money to the administrator, and it is urged that it was error to direct a sale under such circumstances. The decree provides, however, that the master shall bring the money derived from the sale into court to be distributed to the parties entitled thereto under the direction of the court. Partition may be made or, if the premises are not divisible, a decree of sale.may be entered prior to the expiration of the period for probating claims against an estate, as recently held in Hall v. Gabbert, 213 Ill. 208. As there indicated, however, it will be the duty of the court in the case at bar, upon the report of sale coming in, tb take additional proof and to make such an order in reference to the distribution of the proceeds of the sale as will insure their application, so far as may be necessary, to the satisfaction of the claims of the creditors of the estate. Plaintiffs in error, by their brief and argument, complain of the terms of the decree providing for the payment of solicitors’ and commissioners’ fees. As the assignments of error do not question the decree in this respect, this complaint will not' be considered. The decree of the circuit court will be affirmed. Decree affirmed.