Shephard v. Rhodes

• Citation: 1871 WL 8139,60 Ill. 301
• Parties: HENRY M. SHEPHARDv.JOSHUA RHODES et al.
• Decision Date: 30 September 1871
• Court: Illinois Supreme Court

60 Ill. 301

1871 WL 8139 (Ill.)

HENRY M. SHEPHARD

v.JOSHUA RHODES et al.

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Charles W. Rickitson, a citizen of Pennsylvania, died in Pittsburgh, in that State, on the 27th day of September, 1866, leaving a will, which was probated in the proper court in that State on the 15th day of October, 1866. The executors named in the will renounced, and letters of administration, with the will annexed, were granted to William Phillips. Deceased left assets in Cook county, in this State. On the 5th day of August, 1867, Benjamin F. Quimby, a creditor of Rickitson, residing in Cook county, applied to the probate court of that county and obtained letters of administration on the estate.

On the 6th day of May, 1868, Quimby, having learned that Rickitson died testate, filed his petition in the probate court, stating the fact, and asking that his letters be revoked, and letters with the will annexed be granted, which was done, and letters with the will annexed were issued to Henry M. Shephard. They bear date May 8th, 1868.

On the 20th of July, 1869, Quimby recovered a decree in the United States Circuit Court, in the Northern District of Illinois, against Shephard as administrator of the estate of Rickitson, for $30,048.81, which was subsequently allowed against the estate in the probate court of Cook county.

On the 14th day of December, 1869, Phillips, the Pennsylvania administrator, filed a claim for $39,580.38, as due to Rhodes & Rhodes & Co., and which Phillips had purchased in October, 1869, for $30,000, of the assignee in bankruptcy of that firm.

On the 2d day of February, 1870, this claim of Phillips was allowed by the probate court of Cook county, payable pro rata out of other estate of deceased than that inventoried within two years from the grant of letters to Quimby, as might be discovered subsequent to the expiration of the two years. From this order Phillips appealed to the Superior Court of Cook county, where the judgment of the probate court was reversed and the claim was allowed for $30,000, with interest, to be paid in due course of administration, and the judgment was so entered. From that judgment Shephard appeals to this court, and assigns errors.

Messrs. GOUDY & CHANDLER and Mr. MELVILLE W. FULLER, for the appellant.

Mr. J. V. LEMOYNE, for the appellees. Mr. JUSTICE THORNTON delivered the opinion of the Court:

The deceased died testate, in Pennsylvania, where his will was proved and recorded. At the time of his death he had creditors, and owned real estate, in Illinois.

Without any knowledge of the existence of the will, letters of administration were granted to Quimby, in this State, and after the discovery of the will they were revoked, and letters with the will annexed were granted to appellant.

If the letters to Quimby were valid, then the claim of appellees is barred, having been presented after the lapse of two years from the grant of the letters, and it was error to allow it to be paid in the due course of administration.

The only question, therefore, presented by the record, is, were the first letters void, or only voidable?

It is laid down in Toller's Law of Executors, p. 119, that a grant of administration, before probate and refusal, shall be void if the will shall afterwards be proved, although it were suppressed or its existence were unknown. The author declares the administration a nullity in such case, because the interest of the executor is incapable of being divested. This is referred to and relied upon by counsel for appellees, to show the grant to Quimby void.

There is a difference in the facts between the case supposed and the one at bar. In this case the probate had been made, and the executors had refused to accept, before the appointment of Quimby. The grant of administration to him did not, therefore, divest the executors. They had voluntarily deprived themselves of all right and interest, and the reason assigned for the nullity of the administration did not exist.

Reference was also made to 1 Williams on Executors, 367, where it is said, “If administration be granted on the concealment of a will, and afterwards a will appear, inasmuch as the grant was void from the commencement, all acts performed by the administrator in that character shall be equally void.” The same author says, on page 370,...