Durflinger v. Arnold

• Decision Date: 24 February 1928
• Docket Number: No. 18434.,18434.
• Citation: 160 N.E. 172,329 Ill. 93
• Parties: DURFLINGER v. ARNOLD et al.
• Court: Illinois Supreme Court

329 Ill. 93

160 N.E. 172

DURFLINGER

v.ARNOLD et al.

No. 18434.

Supreme Court of Illinois.

Feb. 24, 1928.

Error to Appellate Court, Third District, on Appeal from Circuit Court, McLean County; Edward Barry, Judge.

Action by C. W. Durflinger against Mary E. Arnold and others. A judgment for plaintiff was affirmed by the Appellate Court (244 Ill. App. 276), and defendants bring certiorari.

Affirmed.

Oglevee & Franklin and Stone & Taylor, all of Bloomington, for plaintiffs in error.

Adlai H. Rust, of Bloomington, for defendant in error.

FARMER, J.

This court granted a writ of certiorari to bring up for review a judgment of the Appellate Court for the Third District affirming a judgment of the circuit court of McLean county in favor of defendant in error against plaintiffs in error for $2,468.60. The action was based on the Statute of Frauds and Perjuries (Cahill's Stat. 1925, chap. 59). Pleadings were waived and the cause was submitted to the court without a jury, upon an agreed statement of facts set forth in a stipulation filed. The stipulation provided plaintiff in the court below might insist upon any judgment being rendered for him that would be proper under the statement of facts under any pleadings he might have filed, and that defendants might insist upon any defense or denial of liability based upon said facts to the same extent as if the defenses had been presented by proper pleadings.

Defendant in error was a creditor of Joseph Arnold by virtue of a $2,000 note dated March 1, 1920, due one year after date, with interest at 7 per cent. per annum from date. Arnold died January 17, 1922, without having paid the note. He left a will, which was admitted to probate in the county court February 8, 1922. The will provided for the payment of the testator's debts, and devised the use, benefit, and income of all the testator's property to his wife, Mary E. Arnold, for life, and further provided:

‘Subject to the above provision in favor of my wife, I give, devise and bequeath all my said estate and property to my five children,’ naming them.

Mrs. Arnold was named as executrix in the will but did not qualify. C. S. Arnold was appointed administrator with the will annexed, February 8, 1922. A day was fixed for the adjustment of claims at the April term, 1922, and notice given thereof. It was stipulated that Joseph Arnold's personal property consisted of cash in the bank $161.34, and other personal propertyof the value of $2,501.10, all of which was by the administrator, under the directions of the testator's children, the legatees and devisees, delivered to the widow as and for her award. The testator died seized of 320 acres of land in McLean county, Ill., of the value of $200 per acre, which was incumbered at the date of his death by mortgages amounting to $20,000. Between February 8, 1922, and February 26, 1923, the administrator with the will annexed collected from the rents of the land and from money advanced by the heirs and devisees of Arnold, $48,138.17, all of which was used by the administrator to pay claims filed against the estate of the testator and to discharge the mortgages against the real estate. February 27, 1923, the administrator filed his final report in the probate court, showing the receipt of the personal property above mentioned, the transfer of the property to the widow as her award, and the disbursement of all sums received from rents and advancements in apyment of the claims, mortgages, taxes, and liens upon the land, and on said date the county court entered and order approving the final report and discharging the administrator with the will annexed. Defendant in error did not at any time file a claim against the estate of Arnold. Claims were filed and allowed against the estate in the sum of $20,945.03. After the administrator's final report no assets of any nature came into his hands as administrator. On the 19th day of January, 1926, the administrator died, and in June, 1926, Maurice B. Stern was appointed administrator de bonis non with the will annexed of the estate of Arnold, and no assets of any kind came into his hands. Nothing was paid to defendant in error on his note. The widow of the testator died in November, 1925, and no administration was had upon her estate. Her personal property, amounting to $2,500, was distributed among the children without administration, upon an agreement between them to each pay one-fifth of any indebtedness she had and one-fifth of any judgment that might be rendered against her in this case. It was stipulated that no contention is made against the defendant in error because of the fact that no administration was had upon the estate of the widow, and that her children would be liable for any part of any judgment which might be rendered against Mrs. Arnold if she were still living. The widow went into possession of the real estate devised her for life, and at her death the five children of Arnold mentioned in his will as devisees of the land went into possession of the real estate and received the rents and profits therefrom until March 1, 1926, when they sold the land at a price greater than its value at the time of the death of Arnold. The administrator with the will annexed filed an inventory in the county court, in which he inventoried the 320 acres of land and all the personal property of the testator. Defendant in error was a resident of McLean county and resided near the home of Arnold and was of age and under no legal disability. Upon the suggestion of the death of Mrs. Arnold, who was made defendant in the suit, an order was entered that the suit abate as to her. The death of C. S. Arnold, administrator with the will annexed, was suggested on the record, and Maurice B. Stern, administrator de bonis non, was substituted as one of the defendants.

Section 10 of the Statute of Frauds and Perjuries (Cahill's Stat. 1925, p. 1291) makes all devises fraudulent as against creditors whose debts might thereby be hindered or delayed. Section 11 is as follows:

‘Any person, his heirs, devisees, executors, administrators, successors or assigns, and every of them, who shall or may have any debts, suits or demands against any person, who shall make any fraudulent devise as aforesaid, or who have any debts, suits or demands against any person who shall die intestate, and have real estate to his heirs, to descend according to the laws of this state, may have and maintain the same actions which lie against executors and administrators upon his bonds, specialties, contracts and agreements against the executorsor administrators and the heirs, or against the executors or administrators and the devisees, or may join the executors or administrators, the heir or heirs, and the devisees of such obligor, and shall not be delayed for the nonage of any of the parties.'

Section 12 is in part as follows:

‘When any lands * * * shall * * * be devised to any devisee, and the personal estate of the * * * devisor of such devisee shall be insufficient to discharge the just demands against such * * * devisor's estate, such * * * devisee shall be liable to the creditor of their * * * devisor to the full amount of the lands * * * as may * * * be devised to the said * * * devisee.'

Other sections of the chapter relate to practice and procedure.

The statute quoted was before this court in Ryan v. Jones, 15 Ill. 1. In that case the court said:

‘At the common law, a devisee was not liable for the debts of the testator even in respect of lands devised. Nor was an heir liable for the debts of the ancestor, in respect of lands descended, except in particular cases; such as debts due on specialties, in which the ancestor expressly bound the heir; and on...