Hobson v. Ewan
| Decision Date | 30 September 1871 |
| Citation | 62 Ill. 146,1871 WL 8344 |
| Parties | WILLIAM C. HOBSON et alv.EVAN EWAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Warren County; the Hon. ARTHUR A. SMITH, Judge, presiding.
Messrs. GOUDY & CHANDLER, and Mr. J. M. KIRKPATRICK, for the appellants.
Messrs. MILLER, FROST & LEWIS, and Mr. JOHN J. GLENN, for the appellee.
The points made by appellants on this record, have been decided adversely to them by this court, as reference to cases will show.
Their first point is, that the decree of the Warren circuit court, and the sale thereunder to Duhme, and the deed by the administrator to Love, are null and void.
This point is based on the fact that, as the intestate died in the State of Kentucky, possessed of lands in this State, the statute then in force required administration on his estate to be committed to the public administrator, on the application of any person interested therein, if the deceased had no relative or creditor in this State, or having any, they declined to take the administration.
Paine, it is said, was neither a relative nor creditor, and not interested in the estate; his appointment was void, consequently, all acts done by him as such, are also void.
We do not think this objection, if it be one, can be raised here. If urged before the court granting the letters, it might have prevailed. That court was clothed with full power in the matter, and had complete jurisdiction over the subject; and, having acted, though erroneously, it may be, its action must be regarded as valid and binding in every collateral proceeding. Until the letters granted to Paine are revoked, they must be operative and effectual for the purposes intended. We must, in this proceeding, presume the court granting the letters, had satisfactory evidence before it to justify its action. There may have been facts before that court, calling it into action, which the law does not require should be preserved in the record, or in any other manner. Schnell v. City of Chicago, 38 Ill. 390. The case of Bowles' heirs v. Rouse, Adm'r 3 Gilm. 409, cited by appellants' counsel, was a direct proceeding to reverse the order of sale, and can not apply to this case.
The next point made by appellants is, a want of power in the circuit court to render the decree, jurisdiction not having been acquired of the person, or subject matter, as required by the statute.
We are at a loss to perceive wherein the circuit court failed to obtain jurisdiction in this case, both as it regards the persons of the heirs, and of the subject matter. The initiatory proceedings are in substantial compliance with the requirements of Section 103, Ch. 109, Title “Wills,” and seem to meet all its demands. A petition was filed in the proper court by the administrator, stating the purpose, and notice by publication to the heirs was given. The statute gives the administrator the choice of two modes by which to bring the heirs into court; the one is, by serving a written or printed notice of the application, together with a copy of the account and petition on each of the heirs, or their guardians; the other is, by publishing a notice to all parties interested, in the nearest newspaper for three weeks successively, so that they may come in and show cause why the land should not be sold according to the prayer of the petition. One mode is as efficacious as the other, to bring the heirs and all interested parties into court, and thus give jurisdiction to the court. Whichever mode may be adopted, in neither is it required that the names of the heirs or other interested parties shall be inserted in the notice. The notice was as follows:
To all persons interested, take notice that I intend to present a petition to the circuit court at its next term, to be holden in Monmouth, in the county of Warren, and State of Illinois, on the third Monday of October, A. D. 1853, praying said court for an order to sell all of the real estate belonging to the estate of Bushnell Willey, deceased, for the purpose of paying the debts against said estate. Signed by the administrator, and dated, “Monmouth, Illinois, August 2d, 1853.” This notice was published for the time required by the statute.
As to the petition, the requirement is, that “the administrator shall make out a petition to the circuit court of the county in which administration shall have been granted, stating therein what real estate the testator or intestate died seized of, or so much thereof as will be necessary to pay his or her debts as aforesaid, and request the aid of the court in the premises.”
This is all the statute requires shall be stated in the petition, and this court can require no more. The petition in question fulfills this requirement, with this difference, it does not state the intestate died seized of the lands described in the petition, or of any lands. The allegation is, after stating the personal assets were exhausted and a large balance remained due by the intestate, “that to pay the debts there only remained the real estate belonging to the estate,” describing it.
No technical seizin is alleged in the intestate, but we do not consider that important, so long as there is found an allegation equivalent to it. Seizin, in fact, is understood to be actual possession of land, but in the sense in which the legislature used it, ownership of land was meant--land which the deceased owned in his life-time--that which belonged to him, and into the possession of which he had a right to enter. It is well known there are very many cases of large landed proprietors dying who never saw their lands, yet they were seized in law because they had the title and a right to the actual possession. In this sense the term was used in section 103, as is fully shown by section 125, which provides, whenever it shall appear that the personal estate of any person deceased is insufficient to discharge the debts of such estate, and there is real estate belonging to the same, the court of probate shall make out an abstract from the record of the debts and credits of such estate, and of the lands owned by such testator or intestate from the inventory of such estate, whether the title be complete or not, etc. Seizin and ownership are used as synonymous.
That the heirs are not named in the petition is no objection. It was intimated in the case of Turney v. Turney, 24 Ill. 625, otherwise, but on further consideration it was held in Gibson v. Roll, 27 Id. 88, and subsequently in Stow v. Kimball, 28 Id. 93, and Morris v. Hogle, 37 Id. 155, the omission to name the heirs did not invalidate the decree of sale.
As to the objection that the notice of the administrator is, that he will apply for an order to sell all the lands of the intestate, instead of “the whole, or so much of them as will be sufficient to pay his debts,” it is sufficient in answer to say, that the statute prescribes no particular form of notice. It is for the court to judge of its sufficiency. The notice itself, fully apprizes all parties interested of the nature of the application, and the time and place when and where it will be made. On hearing the allegations and proofs the court may, in its discretion, restrict the sale to a portion only of the lands.
Nor do we perceive the force of the objection that the notice did not request all persons interested in the estate to show cause why the land should not be sold for the purpose of paying the debts. The notice was directed to “all persons interested,” and if they deemed it important to be present they could appear without any other request. The notice was in fact a request to them to appear.
This court held, in Charles v. Waugh, 35 Ill. 315, that a notice by a collector of taxes on an application for judgment against delinquent lands, which omitted to state that an order of sale would be applied for at the time application for judgment should be made, was insufficient, for the reason, land owners would not be stimulated to the same diligence they would be if they were notified that an order to sell their land would be applied for and would follow the judgment. It has always been held in cases of sales of land for taxes, by which the estate of one man may be divested and transferred to another, every material provision of the statute must be complied with. The notice in question did not comply with the statute, and, therefore, no power existed in the court to grant an order of sale. The same strictness has not been required in proceedings of the kind we are now considering.
The sufficiency of this notice in all its particulars, has been adjudicated upon in the original proceeding, the court having found by its decree that it appeared to the court that due notice of its pendency had been given by publication, etc. This recital is prima facie evidence at least that the notice required by law had been given. Goudy et al. v. Hall, 30 Ill. 109; Finch v. Sink, 46 Id. 169.
The objection that this proceeding was addressed to the equitable jurisdiction of the circuit court, and was not an application under the statute, is without force. It matters not how informal the proceeding may be, as the statute prescribes no...
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