Hoover v. Hott (In re Abell's Estate)

• Court: Appellate Court of Illinois
• Writing for the Court: WHEAT
• Citation: Hoover v. Hott (In re Abell's Estate), 329 Ill.App. 73, 67 N.E.2d 294 (Ill. App. 1946)
• Decision Date: 28 May 1946
• Docket Number: Gen. No. 9505.
• Parties: In re ABELL'S ESTATE. HOOVER et al. v. HOTT et al.

329 Ill.App. 73

67 N.E.2d 294

In re ABELL'S ESTATE.HOOVER et al.

v.HOTT et al.

Gen. No. 9505.

Appellate Court of Illinois, Third District.

May 28, 1946.

Appeal from Circuit Court, Christian County; James G. Burnside, Judge.

Proceeding in the matter of the estate of James H. Abell, deceased. Louise A. Hott and Riley E. Abell, as grandchildren and heirs of the decedent, filed their petition requesting their appointment as administrators de bonis non with the will annexed, and George W. Spates, as executor of and trustee under the last will and testament of Josiah Hall, deceased, National Stockyards National Bank of National Stockyards, Ill., and Minnie Mitchell, as creditors, filed a cross-petition requesting the confirmation of the prior appointment of Mary M. Hoover, as administrator be bonis non with will annexed. From an order of the circuit court reversing the order of county court appointing Mary M. Hoover as administrator de bonis non with will annexed, and ordering the appointment of Louise A. Hott and Riley E. Abell, as such, Mary M. Hoover as administrator de bonis non with will annexed of the estate of James H. Abell, deceased, and the creditors appeal.

Reversed and remanded with directions.Hershey & Bliss and Provine, Pinkerton & Miley, all of Taylorville, for appellants.

Flesher & Taylor and Edward E. Adams, all of Taylorville, for appellees.

WHEAT, Justice.

This is an appeal from an order entered by the Circuit Court of Christian County, upon an appeal to it from the County Court of such county, in the matter of the estate of James H. Abell, deceased. The order of the Circuit Court reversed the order of the County Court appointing the appellant, Mary M. Hoover, as administrator de bonis non with the Will annexed of said estate, and ordered the appointment of appellees, Louise A. Hott and Riley E. Abell, as such, The case was tried in the Circuit Court upon stipulation and exhibits, there being no substantial dispute of facts involved. It appears that James Abell died, testate, July 20, 1929, a resident of said county. His will was duly probated and the named executrix therein, M. Ethel Abell, a daughter, qualified and letters testamentary were issued to her. Numerous claims were filed and allowed, which, it is alleged, with the costs of administration, now aggregate $138,924.19. These claims are now held and owned by the appellants, National Stockyards National Bank, George W. Spates, as executor of and trustee under the Will of Josiah Hall, deceased, and Minnie Mitchell. The executrix filed a petition in the County Court to sell real estate to pay debts. Order of sale was entered thereon and sale had. Subsequently, on December 18, 1935, the report of sale was disapproved by the County Court, the sale set aside as fraudulent and void, and the executrix, M. Ethel Abell, ordered removed. Prior to her removal, she had liquidated all of the decedent's personal estate and reported that she had applied the proceeds upon claims other than those of the appellants. Upon her removal, the appellees, Louise A. Hott and Riley E. Abell, together with Frederick H. Abell and Thomas Wayne Abell, all of whom were grandchildren and heirs by descent of the devisees in decedent's Will, filed their petition in the County Court, nominating Scott Hoover as administrator de bonis non with the Will annexed. The Court ordered the appointment of Scott Hoover. He qualified and letters were issued to him (after disposition of appeals) on March 4, 1939.

No personal estate remained or came into his hands and he subsequently filed a supplemental petition to subject the decedent's real estate, allegedly worth not to exceed $100,000, to sale for the payment of the claims, including those of the three creditor-appellants. On January 6, 1944, Louise A. Hott and Riley E. Abell, the appellees, together with all the then other heirs at law of James H. Abell, deceased, except Emma J. Rishton, filed their answer and special answer to such petition of Scott Hoover, as such administrator, in which they alleged that none of the claims against such estate were allowed within seven years next before the filing of such supplemental petition, by reason of which, the Court was without jurisdiction to order the sale of such real estate for the payment of any of such claims; that more than seven years elapsed from the appointment of said Scott Hoover as administrator, on December 18, 1935, wherefore, the right of the said Administrator to subject the lands for the payment of debts is barred by lapse of time; that the claims filed against said estate were without consideration and are not in the hands of any holder in due course and are not valid claims.

On May 9, 1945, said Scott Hoover tendered his resignation to the County Court, following his entry into the military service outside of the United States, which resignation was accepted. At the same time, the Court, of its own motion, appointed Mary M. Hoover, as successor administrator, and directed that she be substituted as plaintiff in the pending suit to sell real estate to pay debts. On the same day, said Mary M. Hoover qualified, and letters were issued to her.

On May 12, 1945, the appellees, Louise A. Hott and Riley E. Abell, filed their petition in the County Court, as grandchildren and heirs of the decedent, requesting their appointment as administrators. To this, the creditor-appellants filed a cross-petition, on May 19, 1945, requesting the confirmation of the prior appointment of Mary M. Hoover, as administrator, and answering the petition of appellees, setting forth many of the aforesaid facts and charging that from the records and files of the County Court, and particularly by reason of the answer filed by Louise A. Hott and Riley E. Abell to the supplemental petition to sell real estate to pay debts, it appears that their interests are directly adverse and in conflict with the interest of the creditors, and praying that the petition of Louise A. Hott and Riley E. Abell be denied; that the appointment of Mary M. Hoover, as administrator, be confirmed, or, in the alternative, that the Court appoint the said Mary M. Hoover or some other competent and qualified person as successor to Scott Hoover. Upon hearing on the petition and cross-petition, the County Court, without making a new appointment,...