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

• Court: Illinois Supreme Court
• Writing for the Court: WILSON
• Citation: Hoover v. Hott (In re Abell's Estate), 395 Ill. 337, 70 N.E.2d 252 (Ill. 1946)
• Decision Date: 20 November 1946
• Docket Number: No. 29763.,29763.
• Parties: In re ABELL'S ESTATE. HOOVER v. HOTT.

395 Ill. 337

70 N.E.2d 252

In re ABELL'S ESTATE.HOOVER

v.HOTT.

No. 29763.

Supreme Court of Illinois.

Nov. 20, 1946.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Christian County; James G. Burnside, Judge.

Proceeding in the matter of the estate of James H. Abell, Deceased, on petition of Louise A. Hott and another for appointment as administrators de bonis non with will annexed, and on cross-petition of George Spates, as executor of and trustee under the last will of Josiah Hall, deceased, and others, creditors, for confirmation of prior appointment of Mary M. Hoover as administratrix de bonis non with will annexed. From a judgment of the Appellate Court, 329 Ill.App. 73, 67 N.E.2d 294, reversing and remanding with directions an order of the circuit court which reversed the order of the county court appointing Mary M. Hoover, as administrator de bonis non with will annexed, and ordering the appointment of Louise A. Hott and another as such, creditors appeal upon a certificate of importance granted by the Appellate Court.

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

Hershey & Bliss and Provine, Pinkerton & Miley, all of Taylorville, for appellees.

WILSON, Justice.

This appeal is before us upon a certificate of importance granted by the Appellate Court for Third District.

James H. Abell, a resident of Christian county, died testate on July 20, 1929. His will was admitted to probate, and, on August 26, 1929, letters testamentary issued to the executrix, M. Ethel Abell, a daughter. Numerous claims were filed in the county court and allowed in 1931. One claim was allowed by the circuit court in 1933. These claims, together with costs of administration, aggregate $138,924.19, and are held and owned by the 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 decedent's real estate for the purpose of paying debts. An order of sale was entered and, in due course, a sale took place. Subsequently, on December 18, 1935, the county court disapproved the report of sale, set aside the sale as fraudulent and void, and ordered the executrix removed. Prior to her removal, the executrix had liquidated all of decedent's personal estate and reported that she had applied the proceeds upon claims other than those of the three previously named. By a petition in the county court, Louise A. Hott, Riley E., Frederick H. and Thomas Wayne Abell, grandchildren and heirs by descent of the devisees in decedent's will, nominated Scott W. Hoover as administrator de bonis non with the will annexed. The court appointed Hoover, who qualified and letters of administration were issued to him on March 4, 1939.

No personal estate remained or came into his hands, and he subsequently filed a supplemental petition on November 9, 1943, to subject the decedent's real estate, alleged to be worth not to exceed $100,000, to sale for the payment of claims, including those of the National Stockyards National Bank, George W. Spates, as executor, and Minnie Mitchell. On January 5, 1944, Louise A. Hott, Riley E. Abell, together with all the then other heirs-at-law of James H. Abell, deceased, except one, filed their answer and special answer challenging the validity of the claims. The administrator's supplemental petition for sale was amended on August 8, 1944. The answer to the amended supplemental petition to sell real estate to pay debts interposed by the heirs of James H. Abell, deceased, as did their answer to the supplemental petition of the administrator, denied that the claims of the three creditors were just and legal claims to be charged against, or paid from, the proceeds of the sale of the real estate. Answering further, they averred that none of the claims against the estate had been allowed within seven years immediately preceding the filing of the supplemental petition and that, therefore, the court lacked jurisdiction to authorize or direct the sale of the real estate to pay any of the claims; that more than seven years elapsed from the appointment of Hoover, as administrator, until the filing of the supplemental petition, wherefore his right to subject the lands of the decedent to pay the debts of the estate became barred by the lapse of time; that all the claims which had been allowed, with the exception of an adverse judgment rendered in 1933, were allowed in 1931; that, in consequence, the right to subject the lands to sale to pay the debts or claims had been lost by the negligence and laches of the administrator and barred by the Statute of Limitations; that the claims were without consideration, were not in the hands of any holder in due course, and were not valid claims against the real estate of the deceased, and, further, that no one of them was based upon any obligation entered into by James H. Abell, or signed by him, or anyone authorized by him. One of the claimants, Spates, as executor, filed an answer to Hoover's amended supplemental petition, averring that for more than seven successive years prior to November 9, 1943, he was in actual possession of tracts, I, IV and V of the lands described in the petition under claim and color of title adverse to the administrator and to all personsclaiming by, through or under James H. Abell, deceased; that he was then in actual possession, and the owner, of the lands; that his right and title were superior to the right of the administrator to sell the lands to pay debts and, further, that the right to subject tracts I, IV and V to sale for payment of debts accrued, as against the claimant, was barred by the seven years' Statute of Limitations.

Thereafter, Hoover, having entered the military service of the United States and being beyond its territorial limits, tendered his written resignation on May 9, 1945. The court accepted the resignation upon his turning over the balance of $3 to his successor and, upon its own motion, appointed Hoover's wife, Mary M. Hoover, as successor administrator de bonis non and approved her bond. Mary M. Hoover qualified as administratrix and letters of administration were issued to her the same day, May 9. She was substituted as a party petitioner in the proceeding to sell real estate to pay debts. Three days later, on May 12, 1945, Louise A. Hott and Riley E. Abell, two of James H. Abell's grandchildren, filed their petition in the county court asking their appointment as successor administrators de bonis non with the will annexed. They alleged that the approximate value of the real estate in Illinois did not exceed $100,000 and of the personal property, $3. Their petition named four persons other than themselves as heirs-at-law of James H. Abell, deceased. The creditors, the National Stockyards National Bank, the owner of one claim against the estate, George W. Spates, as executor, the owner of six claims, and Minnie Mitchell, the owner of two claims, filed a cross petition on May 19, 1945, seeking the confirmation of the appointment of Mary M. Hoover, as successor administrator de bonis non with the will annexed. They alleged that the sole assets of the estate consist of real estate which Scott Hoover, as administrator, petitioned the court to sell in order to pay the debts and claims of the cross petitioners; that, on January 6, 1944, Louise A. Hott and Riley E. Abell, together with all the then other heirs-at-law of James H. Abell, except one, filed their answer to Hoover's petition asserting that the administrator was without power and authority as a matter of law to sell any of the decedent's real estate to pay debts; that the interests of Louise A. Hott and Riley E. Abell and the other heirs-at-law are directly adverse and in conflict with the interest of the claimant creditors and of the administrator who sought to subject decedent's real estate to sale for the payment of claims; that the approximate value of decedent's real estate remaining to be administered was $100,000, and that no personal estate remained; that the petition of Louis A. Hott and Riley E. Abell asking for their appointment as successor administrators should be denied and that, instead, the appointment of Mary M. Hoover be ratified and confirmed, or, in the alternative, that she or some other competent or qualified person be appointed successor to Scott Hoover.

The answer of the heirs of James H. Abell, deceased, to the second amended supplemental petition of Mary M. Hoover, as administratrix, again making the averments contained in their answer to Scott Hoover's petition, averred that at no time had they, as heirs-at-law, committed any act, or caused any to be done, in any manner delaying or obstructing the administration of the estate; that the notes upon which certain claims against the estate are based were executed as collateral to certain other notes; that they are not advised as to whether such other notes have been paid in full or in part; that James H. Abell and Josiah Hall were shareholders and directors of a bank in...