Boue v. Kelsey

Mr. Presiding Justice Harker delivered the opinion of the Court. This is a bill in chancery by the holder of a life estate to compel the owners of the reversionary interest to contribute to the payment of a mortgage upon the lands devised which was executed by the testator prior to the execution of his will. Upon the hearing the court found that the complainant discharged the mortgage lien out of her own means, and decreed the payment of §651.60, by the owners of the reversionary fee as a proportionate share due from them to the complainant. Where a party holding a life estate in lands devised, pays off a mortgage executed by the testator in his life, in order to save the lands to himself and the owners of the reversion, a 'court of equity has full power to compel the owner of the reversion to pay a proportionate share of the amount so expended. Jones et al. v. Gilbert, 135 Ill. 27. In this case the complainant was executrix of the will of her deceased husband, and as such administered upon the estate. If the personal estate was sufficient to pay the legacy, the widow’s award, the probated debt and the mortgage note in question, there was no ground for equitable relief. The personal estate is the primary fund for the payment of debts against an éstate, and so long as that is sufficient, a life tenant can not charge a debt upon the land which the reversioner holds in fee. Clinefelter v. Ayers, 16 Ill. 329; Sutherland v. Harrison, 86 Ill. 364. It devolves upon the complainant to show, affirmatively, that the personal assets were insufficient. By the final report filed by her in the County Court, but not acted upon, she admitted that she had in her hands, after the payment of the legacy and all probated claims, $492.37. There were certain notes inventoried as good, but not accounted for, which, if collected, were, with the sum so reported, more than sufficient to pay off the mortgage debt to Balch. It is contended, however, that the deceased, at the time of his death, was indebted to the complainant in the sum of $1,000, which should be taken into account in determining whether there was a sufficiency of personal assets to pay the indebtedness. To this contention it is a sufficient answer that no such claim was ever allowed against the estate. If the deceased really owed complainant $1,000, and she desired its payment out of the assets of the estate, it was her duty to present her claim to the County Court and establish its validity by proper proofs; having failed to do this, she should be held estopped from asserting it for the first time, fourteen years afterward, against the rights of these minor grandchildren. The finding and decree of the Circuit Court are erroneous. The decree will be reversed and the cause remanded with permission to the parties to make further proofs.