Furst v. Brady

• Decision Date: 17 February 1941
• Docket Number: No. 25615.,25615.
• Parties: FURST v. BRADY.
• Court: Illinois Supreme Court

375 Ill. 425

31 N.E.2d 606

FURST

v.BRADY.

No. 25615.

Supreme Court of Illinois.

Dec. 12, 1940.

Rehearing Denied Feb. 17, 1941.

Proceeding in the matter of the estate of Peter L. Brady, wherein Thelma Brady filed petition to vacate the other appointing administrator and to revoke the letters of administration, opposed by Jeanne M. Furst. From a judgment, 303 Ill.App. 139, 24 N.E.2d 748, reversing a judgment of the circuit court and affirming a judgment of the county court sustaining the petition, Jeanne M. Furst appeals.

Judgment of Appellate Court reversed and judgment of Circuit Court affirmed.

STONE and WILSON, JJ., dissenting.Appeal from Appellate Court, Second District on Appeal from Circuit Court, Stephenson County; Leon A. Zick, Judge.

Burrell & Burrell, of Freeport, for appellant.

Charles H. Green and Robert J. Schmelzle, both of Freeport, for appellee.

MURPHY, Justice.

This cause is here on leave to appeal granted to review the judgment of the Appellate Court for the Second District, in a case involving the legality of the probate of the estate of Peter L. Brady, a deceased non-resident, and the appointment of the public administrator as administrator thereof.

The facts are these: On September 6, 1936, Peter L. Brady, a resident of St. Louis, Missouri, accompanied by his adopted daughter, Thelma Brady, appellee, was driving his automobile from Wisconsin to Missouri. While in Stephenson county, Illinois, his car collided with another car in which Frank E. Furst, of Freeport, Jeanne M. Furst, appellant, and Eleanor N. McNary were riding. Brady and Furst died as a result of the accident. Jeanne M. Furst and Eleanor N. McNary were injured. About two weeks after the accident, Brady's wrecked automobile was sold by his son to a dealer in Forreston, Illinois, for $50. He used the money in payment of one of the Freeport doctor's bills. Brady did not reside in Stephenson county but was merely passing through this State. The record does not show he had any personal property with him other than his automobile.

On January 16, 1937, the public administrator of Stephenson county executed a petition for letters of administration in the estate of Brady. The petition states that Brady, a resident of St. Louis, Missouri, died at Freeport, Stephenson county, on or about September 7, 1936, leaving no last will and testament, seized and possessed of personal estate situated in the county, consisting chiefly of an Oldsmobile, 1935 model, and a certain automobile or casualty insurance policy issued to decedent by the Utilities Insurance Company of St. Louis, as insurer; that more than seventy-five days had elapsed since his death and that no other person had sought to have letters granted on his estate in Illinois. The petition further alleges there are creditors of the deceased; that said personal estate is estimated to be of the value of about $15,100; that deceased left no widow, but left surviving him a son, Vincel, residing at Newcastle, Wyoming, and Thelma, an adopted daughter, residing at St. Louis, Missouri.

The petition was filed and letters of administration were issued by the county court on February 1, 1937. On the same day, three suits to recover for wrongful death of Frank E. Furst, and for personal injuries to Jeanne M. Furst and Eleanor N. McNary, respectively, were instituted in the circuit court of Stephenson county against the public administrator as administrator of Brady's estate. The suit of Eleanor N. McNary proceeded to judgment against the administrator.

On March 17, 1937, Thelma Brady, appellee, filed a petition in the county court to vacate the order appointing the administrator and to revoke the letters issued to him. Her petition alleges she is a resident of Missouri, recites the death of Brady and alleges that on the date of the execution of the public administrator's petition there were no assets of the estate in Illinois, and specifically no assets consisting of an automobile or an insurance policy, and that at the time of his death, and for thirty years prior thereto, Brady was a resident of St. Louis, Missouri. The petition alleges the county court was without jurisdiction to make the appointment for the reason that the statutes of Illinois provide that the public administrator shall act only upon administering the estate of a decedent who died seized or possessed of Illinois real estate, or who had a right or interest therein, and that Brady did not die seized or possessed of any such real estate or any right or interest therein, and did not have in this State any insurance policy, and that on the date the petition was executed there were no assets, real or personal, in this State. It further recites the bringing of the three suits above mentioned and charges the appointment of the public administrator was not for the administration of any estate in the State of Illinois, as contemplated by law, but constituted a fictitious device and means of attempting to obtain service in the three suits in order that the circuit court might obtain jurisdiction in those actions.

On the hearing, the county court denied the administrator's motion to dismiss appellee's petition, and sustained the petition to vacate the order of appointment. On appeal to the circuit court by Jeanne M. Furst, as an interested party, the vacating order of the county court was set aside and the original appointment of the public administrator was confirmed. From this order an appeal was taken to the Appellate Court, In re Brady's Estate, 303 Ill.App. 139, 24 N.E.2d 748, where the judgment of the circuit court was reversed and that of the county court was affirmed.

Brady carried a policy in the Utilities Insurance Company, of St. Louis, Missouri, insuring him against liability to the general public for the negligent operation of his automobile operated by him at the time of the accident. Decedent did not have the policy with him in Stephenson county, and the record does not show it has ever been in Illinois. The insurer is licensed to do business in this State.

The petition to vacate the order of appointment challenges the jurisdiction of the county court to appoint an administrator in this case. Thus, the issue is one of jurisdiction, and not whether, under the facts, it was necessary to make the appointment. Cases dealing with the latter question are of no assistance here. Appellee's case must stand or fall on the issue raised by the petition.

Section 18 of the Administration Act (Ill.Rev.Stat.1939, chap. 3, par. 18) provides that administration of the estates of all persons dying intestate shall be granted to some one or more of the persons thereinafter mentioned, giving the order of preference. The ninth clause is: ‘To the public administrator or to any creditor who shall apply for the same.’ It is not controverted that if the county court had jurisdiction to appoint an administrator in this case it was proper to appoint the public administrator.

The principal contentions of appellee are that the situs of the insurance policy was not in this State, and that because the automobile had been disposed of there was no estate in Illinois to be administered; that under the law of this State a tort claimant is not a creditor; that a tort action against the estate is essentially different from the policy liability, which is analogous to suretyship, and neither of them is an asset of the estate, and that because there was no creditor and no estate the county court had no jurisdiction to appoint an administrator. There is no statutory requirement in this State that public administrators shall act only in administering the estate of a decedent who died seized or possessed of Illinois real estate or some interest therein.

At the time of the hearing to vacate the appointment, the court could not know there were no creditors of the estate. Obviously no such finding could be made until the statutory period for filing claims had expired. In re Estate of McWhirter, 235 Ill. 607, 85 N.E. 918. As a matter of fact the claim of a doctor for $50 for services to Thelma Brady on account of injuries received in the accident was on file against the Brady estate and the record does not show it has ever been acted upon. Appellant does not rely upon the fact that there was an automobile in the county as being an asset of the estate, or the doctor's claim as a debt, to establish jurisdiction, and it is unnecessary to discuss their aspects. She claims the insurance contract was an asset of the estate, cognizable as such by the county court, and as a tort claimant she is a creditor of the estate; that these facts gave the court jurisdiction, and the revocation of the appointment of the administrator was unauthorized.

The real issues concern the rights of all the plaintiffs, on the one hand, and those of the insurance company on the other, in the three damage suits, which are all affected by the result of this proceeding. The parties are respectively represented by the same attorneys in this and the other suits. The value of the wrecked automobile is nominal. Procuring the appointment...