Hutton v. Porrovecchio

Mr. Presiding Justice Thompson delivered the opinion of the court. It is insisted the court erred in refusing to hold certain propositions of law presented by the appellant. This is not a case wherein the parties were entitled to a trial by jury. Propositions of law may be submitted only where the right to a trial by jury exists and has been waived. People ex rel. James v. Chicago, B. & Q. R. Co., 231 Ill. 112; Martin v. Martin, 170 Ill. 18; Schofield v. Thomas, 236 Ill. 417. There was no error in refusing to hold the propositions presented. It is further argued that the court admitted improper evidence. The only issue before the court, was whether Chermen and Purvechio were one and the same party. The petition of the widow asserts that her husband, Purvechio, was known in Vermilion County as Peter Chermen, and that there are two grants of letters of administration in the same estate. The administrator was a witness and he was asked the question: “When did you find out that the name of Peter Chermen and the name of Purvechio stood for one and the same party, deceased, in the same estate?” Ans. “As near as I can remember now, it must have been sometime in May of the same year.” There was also other proof to the same effect that Chermen and Purvechio was the same person. The court over the objection of the administrator admitted in evidence the pleas in the suit of the administrator of the estate of Peter Chermen against the Brazil Block Coal Company and the power of attorney from the widow to Balsamello. These pleas and the power of attorney were all clearly incompetent for any purpose, but inasmuch as the administrator admitted that Chermen and Purvechio was one and the same person, the admission of the incompetent evidence was harmless error. It is also insisted that the Probate Court had no authority to vacate the order appointing Hutton administrator of the estate of Purvechio. The contention of appellant is that the Probate Court can only revoke letters of administration for one of the reasons mentioned in sections 19, 26, 28, 29 or 30 of the Administration Act. (J. & A. fífí 67, 75, 77, 78, 79.) These sections provide for the revocation of original letters of administration, when they have been improperly granted to certain parties when other parties are by law entitled to administer, or when they are granted on some false pretense or for waste, etc., and with the exception of section 26 can have no application to the case under consideration. Although Probate Courts have not general chancery jurisdiction, yet, in probate matters, they have jurisdiction of an equitable character and may adopt the forms of equitable proceedings and grant relief of an equitable nature, where justice and equity require such relief. Dixon v. Buell, 21 Ill. 203; Chicago Title & Trust Co. v. McGlew, 193 Ill. 457; Bliss v. Seaman, 165 Ill. 422; Thomson v. Blach, 200 Ill. 465; Carter v. Pierce, 114 Ill. App. 589. It is not contended that when the Probate Court had lawfully granted letters on an estate that the same court could legally grant a second set .of letters while the first were in full force. The rule'appears to be that two separate and valid grants of letters of administration cannot exist at the same time in the same court. Petigru v. Ferguson, 6 Bich. Eq. (S. C.) 378; Rambo v. Wyatt’s Adm’r, 32 Ala. 363; Holmes v. Oregon & C. Ry. Co., 5 Fed. 523; Brubaker’s Appeal, 98 Pa. St. 21; Razor v. Mehl, 25 Ind. App. 645. There is an inherent power in the Probate Court to correct an error which it had been led into by a mistake of facts as to its jurisdiction. The legal title to the estate of the deceased vested in the administrator of the estate of Peter Chermen in trust for the parties entitled thereto. Cross v. Carey, 25 Ill. 562. Until a valid revocation of letters of administration already granted on an estate is made, the County Court has no power or jurisdiction to appoint another as administrator de bonis non of the same estate, and an order for such appointment under such circumstances “was absolutely void.” Munroe v. People, 102 Ill. 408. An order appointing a special administrator to collect without revoking the letters of a duly qualified and acting executor is void. Day v. Bullen, 226 Ill. 72. We are of the opinion that the Probate Court had full authority, in a direct proceeding for that purpose, to revoke and set aside a void order made by it on a petition constructively fraudulent. It is also argued that the court should have consolidated the two administrations and made some order disposing of the nine hundred dollars paid by the coal company to Hutton as administrator of Purvechio. We fail to see any right of the court to consolidate a valid with an invalid grant of letters of administration or to make any order concerning the acts of the administrator done in pursuance of an invalid appointment. The order vacating the administration in the estate of Purvechio is affirmed. Affirmed.