Durston v. Pollock

Granger, C. J. I. In a section of the Illinois statutes providing “the order of payment of demands” in the settlement of estates, after other specifications, it is provided: “(7) All other debts and demands, of whatsoever kind, without regard to quality or dignity, which shall be exhibited to the court within two years from the granting of letters, as aforesaid, and all demands not exhibited within two years, as aforesaid, shall be forever barred, unless the creditors shall find other estate of the deceased, not inventoried or accounted for by the executor or administrator.” Revised Statutes, chapter 3, section 70. Prom the Illinois Reports we note the following, under appellant’s citations, as to how the law is construed in that state: “As Pool did not exhibit his claim within two years from the grant of letters of administration, he is precluded by the statute of limitations from any participation in that portion of the estate of William Castles which was inventoried or accounted for by the administrator during that period. — 671 — His judgment can only be satisfied out of estate discovered or inventoried after tbe expiration of the two years.” Sloo v. Pool, 15 Ill. 47. On page 49 of the same report it is said: “The statute makes it the duty of the administrator, within three months after his appointment, to return to the probate court a full and perfect inventory of the real and personal property of the intestate. The administrator of "William Castles did not return an inventory of the real estate within two years from the grant of administration. The real estate was therefore not inventoried or accounted for during that period of time, and Pool is consequently entitled to participate equally with the other creditors in the proceeds thereof.” In Bradford v. Jones, 17 Ill., on page 94, the language of the decision is as follows: “It was evidently the intention of the statute to allow debtors who had neglected to present their ■claims againt the estate within. the two years to seek satisfaction out of any property belonging to the estate which had not been thus inventoried, and which they can find, and thus apply, assuming, as the' law might well assume, that the inventories would show all of which the executor or administrator had any knowledge. It is a matter of no moment, and can make no difference with the debtor’s rights, whether the estate not inventoried is discovered before or after he obtains his judgment, or even the commencement of his suit, or whether he himself first finds such property. The test prescribed by the statute is whether it has been inventoried or accounted for by the executor or administrator. If it has not been, and he can find or get hold of it, he is entitled to have it applied to the payment of his debt in the mode pointed...out by the statute.” In Peacock v. Haven, 22 Ill., on page 26, the court says: “If he does not exhibit it [his claim], *■ * * then his judgment is to be satisfied out of such property as may be subsequently discovered and inventoried. If, — 672 — instead of suing, lie is sued by an executor or administrator, he can plead -his claim by way of set-off, and the balance be adjudged to him, to be paid out of any estate thereafter discovered or inventoried.” In Blanchard v. Williamson, 70 Ill. 647, the court says, on page 650: “It is true the statute requires claims of the class to .which appellee’s belongs shall be exhibited within two years from the granting of letters, or be forever barred, unless the creditor shall discover other assets not inventoried or accounted for. '* * * The law has prescribed no period in which a party can present his claim against an estate. It is apprehended he might do it any time before the debt itself is barred by the statute of limitation.” And, again, on page 651: “The bar is as to the payment of claims out of effects previously inventoried, but there does not seem to be any bar as to the payment of claims out of property not inventoried or accounted for, other than what is to be found in the general limitation laws.” 1 The record fully warrants the conclusion that the' ancillary administration in this state is' only, for the payment of the claim of Agnes Whan. Her claim was not exhibited in the probate court of Mercer county within two years from the issuance of letters to the administrator, and, under the laws of that state, she was barred from receiving any part of the estate inventoried or accounted for during the two years,- but in that state, except under the general law as to the limitation of actions, there is not a bar to the presentation and payment of claims in the probate court, but, as to claims not exhibited within two years after the granting of letters of ádministration, they are only to be paid if “other estate of the deceased, not inventoried or accounted for by the executor or administrator,” is found. It is conceded that the land in Iowa was not inventoried by the administrator in Illinois. Was it “accounted” for by the admin — 673 — istrator, within the meaning of the law of that state? 'We are not aware that the supreme court of that state has ever defined the statute as to what would amount to an accounting for property not inventoried. It is plain that the statute contemplates an accounting by the executor for property not taken upon his inventory, and brought in that way to the knowledge and under the supervision of the court, under usual administrative proceedings. Wherein the record does not disclose the methods of procedure of the probate court of Illinois, we are warranted in presuming that they are like ours, and that the administrator makes periodical reports of his doings with and for the estate. The will annexed to the appointment of the plaintiff in Illinois makes specific reference to and disposition of the land in this state. The clause of the will in this respect is as follows: ££I, Jacob W. Unangst, do will to Margaret A. Pollock the following parcels of land: The north half of the southwest quarter of section sixteen (16), in township number seventy(70)north, of range number twenty-nine (29) west, also south half of the east half of the northeast quarter of.the northwest quarter of section thirty-three (33), in township (70) north, of range thirty (30) west, containing ninety (90) acres, more or less, during her lifetime; after her death, to be equally divided between her children. I have executed a deed in accordance with this, my will.” This land is in Einggold county, Iowa. Prom this fact it will be seen that the land in Iowa was not property ££ discovered” after the two years, but that it was made, by the will, a subject of action by the executor; for, to a proper carrying out of the terms of the will, the land being in Iowa, and as a probate of the will in this, state was essential 4o give the will effect as to the land, he was required to procure the probate of the will, to the end that the intent of the testator should be carried into effect. A learned law writer has said that it is the duty of such an adminis — 674 — trator “to steer, like an executor, by the chart which the deceased has left behind.” Within the two years for exhibiting' claims in the probate court of Mercer county, and at a time when the only purpose of probating'the will in'Ringgold county would be to give effect to the devise of the land, it was so admitted to probate; and we assume, as being in the line of his official duty, that it was caused by the plaintiff. This was done in April, 1887; and assuming, as we should, that he had observed his duties under the law of his appointment in Illinois, we must treat this land as accounted for by him in so far as any accounting would be required in Illinois for land situated in Iowa. If this conclusion is correct, it answers the claim of appellant that because of the peculiar statute of Illinois, whereby the bar of the statute does not apply as to parts of an estate not inventoried or accounted for by the executor, she is entitled to have the land in Iowa applied to its payment. To our minds, if the land was in Illinois, and thus treated, it should be regarded as accounted for, so as to exempt it from the payment of claims filed after the two years. 2 II. Appellant further urges that, independent of the law of Illinois, as the administration was granted here within five years from the death of Unangst, and the claim is allowed in this state, it should be paid from the land in question. The equities of the case are against such conclusion, and we think the law does not favor it. Jacob W. Unangst was surety for his son, D. M. Unangst, on the note. Had the note been filed within two years in Illinois, it would have been paid, and the burden of payment would have fallen on D. M. Unangst in the adjustment of the estate. D. M. Unangst has received his full share of the estate, and is now insolvent. If the land in this estate is held subject to the payment of the claims, the effect is to require Margaret A. Pol — 675 — lock and her heirs to' pay the debt of her brother from her portion of her father’s estate, because of the neglect of Agnes Whan. The administrator in this state and in Illinois is the same person, and the administration here is peculiarly in aid of that in Illinois, under the provisions of our Code permitting an administrator in another state to be appointed in this state. Code, section 2368. The administrator here is such because he is the administrator there. Is he to be permitted to come here, and apply property of the estate to the payment of a debt to which it would not be applied if the property was in Illinois, and when the claimant and the principal estates are in Illinois'? We think such a rule should not obtain. In view of the peculiar facts of the case, we think the action of the district court in denying a sale of the land is sustained by both equitable and legal considerations. ‘ Aeeiemed.