Robertson v. Yager

• Decision Date: 07 December 1927
• Docket Number: No. 17835.,17835.
• Citation: 327 Ill. 346,158 N.E. 709
• Parties: ROBERTSON v. YAGER.
• Court: Illinois Supreme Court

327 Ill. 346

158 N.E. 709

ROBERTSON

v.YAGER.

No. 17835.

Supreme Court of Illinois.

Oct. 22, 1927.

Rehearing Denied Dec. 7, 1927.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Clark County; Augustus A. Partlow, Judge.

Petition by George G. Robertson for the probate of the will of O. B. Grant, deceased, opposed by Bertha Yager. From on order of the county court admitting the will to propate, opponent appealed to the circuit court, which denied probate. The Appellate Court affirmed the order of the circuit court, and George G. Robertson brings error.

Reversed and remanded, with directions.

H. R. Snavely, of Marshall, for plaintiff in error.

S. M. Scholfield, of Marshall, and Parker & Cox, of Robinson, for defendant in error.

STONE, J.

This is a writ of error from the judgment of the Appellate Court affirming the order of the circuit court refusing to order the probate of the will of O. B. Grant, who died January 19, 1925. The will, after providing for the payment of funeral expenses and just debts, made certain specific bequests of money to relatives and friends and to a cemetery association and gave $500 to an old friend and neighbor and his wife. The eighth clause gave, devised, and bequeathed all the balance and residue of his property, of every kind and character and wherever situated, to his daughter, Bertha Yager, defendant in error. The last clause appointed plaintiff in error, George G. Robertson, his executor. He filed a petition in the county court of Clerk county for the probate of the will. Defendant in error, as the sole heir and residuary devisee and legatee, filed objections in the county court to the probate of the will, which were overruled and an order entered probating the will.

On appeal the circuit court heard evidence showing that all the devisees and legatees interested in the propertydisposed of by the will had agreed to accept the legacies; that defendant in error should pay all legacies and that there be no administration of the estate. The evidence heard by the court also showed that at the time of the hearing defendant in error had paid all the legacies and bequests required to be paid under the provisions of the will, had paid the funeral expenses and all debts and claims against the estate, including the federal estate tax, and made arrangements to pay the state inheritance tax as soon as the amount was ascertained. The evidence also showed that prior to decedent's death he had placed his entire estate in the possession and under the control of defendant in error, and the same was in her possession and control at the time of filing the petition to probate the will. On this evidence the circuit court refused to order the probate of the will on the ground that administration was not necessary.

The Appellate Court held that, since it was apparent from the record that all of the provisions of the will of the deceased concerning his property had been carried into effect and all debts and claims against the estate had been paid, there was no necessity for administration of the estate or probating the will; that to do so was a useless form for the sole benefit of plaintiff in error that he might earn commissions as executor, which would be paid by the defendant in error as residuary legatee, and affirmed the order of the circuit court. The cause comes here on certiorari.

Plaintiff in error urges that it was error on the part of the circuit court to receive evidence of any agreement as to the disposition of the estate; that the subject-matter of inquiry in a matter of the probate of a will on appeal from the probate or county court is confined to the validity of the will; and that whether the estate shall have been settled in any manner different from that provided by the will, so as to avoid the necessity of administration, is not a matter into which the circuit court on such hearing may inquire. Objection is also raised to the competency of certain testimony in the record.

This court has held that in a case where the deceased dies intestate and there are no debts of the estate and distribution is made by the heirs there is no necessity for administration, and the court will not order one merely to see that the estate is administered. In Cotterell v. Coen, 246 Ill. 410, 92 N. E. 911, Samuel Cotterell died intestate seized of 40 acres of land and about $1,000 in personal property. He left a widow and certain children. Immediately prior to his death he requested his children and grandchildren to settle his estate among themselves without administration; which they promised to do. After his death they entered into an agreement which provided that one of the heirs should take possession of the personal property, reduce it to cash, and divide it among all the heirs. The 60 days provided by section 18 of the Administration Act having elapsed without the next of kin taking out letters of administration, Coen, a public administrator, applied for and was granted letters. Thereafter the heirs sought to have him removed as such administrator, and this court on review held that the purpose of requiring administration of the estates of persons dying intestate is, first, to provide for and insure conservation of all personal assets of the estate, including the collection of all debts due the decedent; second, the payment of the debts; and, third, the proper distribution of the residue among the heirs at law according to the statute of descent. It was also there held that administration is not necessary in every case and the statute applies only to those cases where it is necessary; that, where there are no unpaid debts and no claims or demands due the estate, no administration is necessary, but the heirs are entitled to immediate possession of the estate, and they are not required to pay over the assets to the administrator for the sole purpose of distribution.

In People v. Abbott, 105 Ill. 588, Thomas McKee, administrator of the estate of Kate H. Lee, brought an action against the executors of the estate of Catharine Dwire to compel them to deliver to him certain promissory notes belonging to the estate of Mrs. Lee. Mrs. Lee died intestate, leaving a husband, but no children, and leaving an estate consisting of real estate and personal property, the notes in question being a part of the latter. The husband entered into an agreement with the mother of Mrs. Lee, who was the Catharine Dwire referred to, dividing the property equally between him and the mother after the payment of debts and funeral expenses, with the mutual agreement that on the death of either party the one-half interest should go to the other. The property was divided in accordance with this agreement. Mrs. Dwire died, and the husband of Mrs. Lee, deceased, filed a petition in the county court, asking for appointment of an administrator of her estate. Thomas McKee was appointed administrator and made demand in writing on the executors of the estate Mrs. Dwire for the personal property received by her in the division. The appointment of an administrator for the estate of Mrs. Lee was for the sole purpose of recovering the personal property in the hands of Mrs. Dwire at the time of her decease. It was held that the court would not require an heir to pay over money to an administrator when such administrator has no debts to pay and where such administration would benefit only the administrator. To the same effect is Lewis v. Lyons, 13 Ill. 117.

[1] While there may be necessity for an administrator even where there are no debts, as for the purpoes of collection and distribution, yet where there are no debts, and the property is already distributed, and there are no sutis to be brought, there can be no necessity for an administrator. The law does not make it indispensable that every estate shall be administered merely for the sake of administration. People v. Abbott, supra. In Moore v. Brandenburg, 248 Ill. 232, 93 N. E. 733,140 Am. St. Rep. 206, there was no administration of the estate of the decedent, who had died intestate, and an action was brought by his heirs to cancel and set aside certain gifts and transfers made by him during his lifetime. It was there held that where there are no debts it is not necessary to go through the legal form of administration to distribute an estate; that the heirs may maintain an action on their own account without administration.

None of the cases cited involved the question whether a court may, upon an agreement by the heirs that a will shall not be probated, refuse to...