Child v. Gratiot

• Decision Date: 30 April 1866
• Citation: 41 Ill. 357,1866 WL 4598
• Parties: SULLIVAN S. CHILDv.EDWARD H. GRATIOT.
• Court: Illinois Supreme Court

41 Ill. 357

1866 WL 4598 (Ill.)

SULLIVAN S. CHILD

v.EDWARD H. GRATIOT.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

The opinion of the court contains a statement of the case. Mr. LOUIS SHISSLER and Mr. M. Y. JOHNSON, for the appellant.

Messrs. LELAND & BLANCHARD, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

At the June Term, 1865, of the County Court of Jo Daviess county, Sullivan S. Child, administrator on the estate of William H. Child, by letters of administration granted at Marietta, in the State of Pennsylvania, applied to the County Court to revoke the letters of administration on the same estate, granted by that court to Edward H. Gratiot, for the reasons, first, because Gratiot was a non-resident of this State, and could not be legally appointed such administrator; second, because the letters were obtained through misrepresentation and false pretenses; third, because they were obtained by a suppression of the truth; fourth, because letters of administration had been granted at Marietta, Pennsylvania, the domicile of deceased, on the 15th of August, 1864, to applicant.

The County Court refused the application, and an appeal was taken to the Circuit Court, where the decision of the County Court was affirmed. From this judgment an appeal is brought to this court on bill of exceptions duly taken.

Proof was made that Gratiot was a resident of Wisconsin at the time of his appointment, and had been such resident for a great number of years, and yet a resident thereof. He was the uncle of the intestate, whose father was living in Baltimore. After his appointment, Gratiot called on Edward H. Beebe, the guardian of the intestate, and received from him the sum of ten hundred and eighty-six dollars and ninety-one cents, due the estate of the intestate, and gave his receipt for the same, as administrator of William H. Child, deceased. This sum was a balance in the hands of Beebe, as guardian. No debts were proved against the intestate in Jo Daviess county, nor had he resided there for many years.

The question presented is, can a non-resident of this State be appointed an administrator on the estate of a non-resident dying abroad and leaving effects in this State, or if such appointment be made, it is the duty of the court making it, to revoke it, on proper application being made.

In this case, the application to revoke the letters granted to Gratiot, was made by the administrator appointed by the court of the domicile of the intestate.

We see grave objections to the appointment of a non-resident administrator on the estate lying in this State, among which is, the impossibility of compelling him to render an account and make a settlement, and pay claims and demands against the estate, as he is beyond the reach of the process of the court, and can set it at defiance, to the great loss and injury of creditors.

By the act of 1847, it is provided, when any executor or administrator may have removed, or shall remove without the limits of this State, it shall be the duty of the probate justice of the proper county, upon affidavit being filed of such removal by any person interested in the estate in the hands of such executor or administrator, to cause a notice to be published in some newspaper in the county where letters testamentary or of administration may have been granted, for four weeks successively, and if no newspaper is published in said county, then by posting up a notice at the court-house door, setting forth that said affidavit has been filed, and notifying the said executor and (or) administrator to appear before him within thirty days after the date of said notice and make a settlement as aforesaid, it shall be the duty of said probate justice to remove said executor or administrator from office, and supply the vacancy as now directed in other cases. Scates' Comp. 1238.

The spirit of this law would seem to forbid the appointment of a non-resident to any such trust, for if he can be deprived of his office on his removal to another jurisdiction, no court would be warranted in appointing him to the office, he being a non-resident at the time of his appointment. There is an incongruity in it which cannot be reconciled. We therefore are of opinion, that on the facts before the Circuit Court, the appointment of Mr. Gratiot, he being non-resident, should have been revoked on the application of the administrator, who had been appointed such, by the court of the domicile of the intestate.

For these reasons the judgment of the court below must be reversed.

Judgment reversed.

At the April Term, 1867, a rehearing of this case was asked upon grounds which are set forth in the following supplemental opinion of the court, but the application was denied.

Messrs. R. H. MCCLELLAN, D. W. JACKSON and E. A. SMALL, counsel for the appellee, made the application.

Mr. LOUIS SHISSLER and Mr. M. Y. JOHNSON, for the appellant, contra.

Mr. JUSTICE BREESE delivered the opinion of the Court:

Since filing the above opinion, a petiton has been presented by the appellee for a rehearing. It is suggested in the petition that we have misapprehended the statute, on which the opinion was based. The act in question is the act of 1847, entitled “An act further to define the duties of probate justices,” and is composed of one section. We quoted from “Scates' Compilation,” p. 1238, and referred also to the act, as printed among the laws of 1847, in the reprint of 1853, p. 63, and found an entire correspondence. The counsel for appellee insisting in his petition there was an important omission, which, in his opinion, materially...