Peters v. Peters
| Decision Date | 22 March 1950 |
| Docket Number | No. 31387,31387 |
| Parties | PETERS v. PETERS et al. |
| Court | Illinois Supreme Court |
Ward & Ward, of Sterling, for appellants.
Jacob Cantlin, and Samuel Rubin, both of Rock Falls, for appellee.
Mary A. Peters, a widow, died testate on September 6, 1938, leaving surviving, as her only heirs-at-law, four children, Esther A., James H., and George W. Peters, and Mabel Peters Carpenter, and six grandchildren, the latter being the children of two deceased sons. At the time of her death, Mary Peters was the sole and undisputed owner of a farm of approximately 360 acres in Whiteside County. After providing for the payment of her debts and making small bequests to certain grandchildren, she devised an undivided one-fourth interest in the farm to Esther Peters. In succeeding clauses of her will, she devised three undivided one-fourth interests in the farm to Esther Peters in trust for her three other living children for the duration of their respective lives, each interest held in trust to pass to Esther Peters, individually, upon the death of the particular beneficiary. Esther Peters was also named as executrix of the will.
Subsequently, the other children of the testatrix engaged in considerable litigation with the executrix. The first trial, in the circuit court of Whiteside County, of their action to contest the will, resulted in a verdict for the executrix and a decree dismissing the complaint. On appeal, the decree was reversed and the cause remanded, for a new trial. Peters v. Peters, 376 Ill. 237, 33 N.E.2d 425. Upon the second trial, the jury disagreed. Thereafter, the Appellate Court determined that the debts incurred by the executrix in defending the will contest were properly chargeable against the corpus of the estate rather than the income earned during the pendency of the litigation. Peters v. Peters, 321 Ill.App. 357, 53 N.E.2d 139. The validity of the will was finally sustained in a decree entered by default in December, 1946.
On November 24, 1947, executrix filed a petition in the county court of Whiteside County to sell real estate to pay debts. George Peters and Mabel Carpenter filed a joint answer admitting that the testatrix owned the farm in fee simple at the time of her death and objecting to the proposed sale upon the ground of laches, averring that the petition was filed more than seven years after the death of the testatrix and that the delay was not satisfactorily explained. James Peters answered, suggesting that the real estate be mortgaged rather than sold. The county court found that the personal estate was insufficient to pay debts in the amount of $14,139.24 and directed the executrix to sell the real estate, or as much thereof as necessary, to pay the debts and expenses of administration of the estate. George Peters and Mabel Carpenter prosecute a direct appeal, presumably on the theory that a freehold is involved. James Peters has not joined in the appeal.
Ordinarily, an order directing an executor or administrator to sell real estate to pay debts does not involve a freehold because the heirs or devisees of the decedent may effectively avoid a disturbance of their title by providing sufficient funds to discharge the obligations and expenses of the estate. Atherton v. Hughes, 239 Ill. 632, 88 N.E. 199; Wachsmuth v. Penn Mutual Life Ins. Co. 231 Ill 29, 83 N.E. 85; Thomas v. Waters, 213 Ill. 141, 72 N.E. 820; Frier v. Lowe, 207 Ill. 410, 69 N.E. 899; Richie v. Cox, 188 Ill. 276, 58 N.E. 952; Fields v. Coker, ...
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