Smith v. Smith

• Decision Date: 18 June 1898
• Parties: SMITH v. SMITH et al.
• Court: Illinois Supreme Court

174 Ill. 52

50 N.E. 1083

SMITH

v.SMITH et al.

Supreme Court of Illinois.

June 18, 1898.

Appeal from appellate court, Third district.

Partition by Edward O. Smith and others against Katharyne S. Smith and others. From an order refusing to direct a payment to defendant Katharyne S. Smith, she appealed to the court of appeals. 63 Ill. App. 534. From an affirmance of the judgment, she appeals. Affirmed.Crea, Ewing & Walker and W. C. Johns, for appellant.

Bunn & Park and W. C. Outten, for appellees.

This is an appeal from an order of the circuit court refusing to direct payment to the appellant of an amount allowed her for ‘family allowance’ by the superior court of Santa Clara county, Cal., which order was entered, upon an agreed state of facts, in a partition proceeding instituted by appellees, as heirs of one Edward O. Smith, against the appellant, widow of said Edward O. Smith and others, upon the application of appellant to have her claim for such allowance paid out of the proceeds of the sale of a part of the property, reported by the commissioners as incapable of division in said proceeding for partition and assignment of dower. An appeal was taken to the appellate court from the order refusing payment of appellant's claim. The appellate court has affirmed the order of the circuit court, and the present appeal is prosecuted from such judgment of affirmance. 63 Ill. App. 534.

Edward O. Smith died intestate on March 8, 1892, in Santa Clara county, Cal., where he was then residing. He left, him surviving, his widow, Katharyne S. Smith, and ten children, to wit, one daughter, Katharyne J. Smith, his child by appellant, and the appellee Edward O. Smith, and the other appellees, his children by a former wife. The appellant, Katharyne S. Smith, was appointed, on April 1, 1892, by said superior court of Santa Clara county, Cal., administratrix of the estate of said Edward O. Smith, deceased, in California, the said superior court having probate jurisdiction under the laws of California. On May 16, 1892, David S. Shellabarger was appointed administrator of the estate of Edward O. Smith in Illinois by the county court of Macon county, Ill. Said Edward O. Smith, at the time of his death, owned land in Illinois, to wit, 1,000 acres of farm land, and a property in the city of Decatur known as the ‘Old Opera House.’ The appellees, heirs of Edward O. Smith, commenced in the circuit court o said Macon county, Ill., the proceeding above referred to for the partition of said real estate, and for the assignment of the appellant's dower therein. Such proceedings were had in said partition and dower suit, that 267.62 acres were set off to the appellant as her dower, and most of the lands were divided among the heirs, but, the commissioners having reported that the opera-house property in Decatur could not be divided, the same was sold by the master in chancery, who, after paying appellant the amount allowed her for her dower interest therein, as hereafter stated, had in his hands $13,072.73. The appellant, as widow of the deceased intestate, consented to the sale of said opera-house property, and received out of the proceeds of such sale, as the value of her dower, the sum of $5,481.36. The appellant also received one-third of the rents of the real estate from the time of the death of said Smith to the time of the assignment of her dower. A receiver, named George W. Bright, was appointed in the proceeding, and has in his hands $320.13 arising from the collection of rents. Shellabarger, the administrator, has in his hands $340.43. The total amount in the hands of the master, the receiver, and the Illinois administrator is $13,733.29. The costs of the administration and receivership in Illinois, and the debts due to the creditors in Illinois, have been fully paid. All the moneys on hand have proceeded from the sale and rental of the real estate owned by the said Edward O. Smith in Macon county, Ill. Claims were presented and allowed against the estate of Smith in the state of California. The assets in California were not sufficient to pay the California creditors. Upon the agreed statement of facts, hereinafter set forth, the circuit court of Macon county was asked to apply the moneys in the hands of the master and receiver, so far as should be necessary, to the payment of the claims against the estate of the intestate, as allowed by the court in California. A number of these claims have been paid by the master with the consent of the heirs, but the claim of the appellant for her ‘family allowance,’ as heretofore and hereinafter mentioned, was objected to by the heirs.

The agreed statement of facts set forth the death of Edward O. Smith, the appointment of his widow as administratrix in California, the appointment of Shellabarger as administrator in Illinois; and further sets forth that under the laws of California there was set off to the appellant herein, as such widow, as and for her homestead, in fee simple, certain land in California, valued at $8,468.35; that under and by virtue of the laws of California there was allowed to the said Katharyne S. Smith by the said superior court of Santa Clara county certain household and kitchen furniture in said homestead, valued at $2,992.00; ‘that under and by virtue of the laws of California said superior court of Santa Clara county allowed the said Katharyne S. Smith, out of the estate of said deceased, as and for her ‘family allowance,’ the following sum, to wit, from the date of the death of said Edward O. Smith, on the 8th day of March, 1892, to the 8th day of August, 1892, five months, at $250 per month, $1,250, and from the 8th day of August, 1892, until the further order of said court, at the rate of $200 per month; that the same be paid to her out of the estate of said Edward O. Smith, deceased, in preference to all other claims against said estate, except funeral expenses and the expenses of administration'; that said court, on September 8, 1893, ordered that said allowance cease, and that the amount thereof under the orders of said court is $3,850. The agreed state of facts further sets forth that a large number of claims were allowed by the superior court of Santa Clara county, Cal., against the estate in that state. A list of said claims is attached to the agreed state of facts. Copies of the orders of said superior court making the above allowance to the widow, and setting off the homestead to her, are also attached to said agreed state of facts; and it is therein agreed that said copies shall be taken as evidence that said order making said allowance was entered, and that the persons heretofore mentioned are the children and heirs of the deceased. The agreed state of facts also admits the facts hereinbefore stated, not specifically mentioned as being contained therein. It is also agreed therein that the administratrix, Katharyne S. Smith, has no funds in her hands to pay the said allowance of $3,850 made to her by the California court, or to pay the expenses of the administration of said estate in California. It is therein agreed that the parties plaintiff or defendant may appeal, or prosecute a writ of error, from the order of court made upon such agreed state of facts.

MAGRUDER, J. (after stating the facts).

The superior court of Santa Clara county, Cal., allowed appellant, under the law of that state, $3,850 ‘as and for a family allowance out of the estate of her deceased husband, Edward O. Smith.’ The appellant seeks to have her said claim of $3,850 paid out of the proceeds of a sale of land in Illinois, made in a partition proceeding between the heirs and widow of the deceased. It is conceded that the claim whose payment the appellant here seeks to enforce has not been allowed in the county court of Macon county, or in any other court in Illinois. The only question in this case is whether or not the circuit court erred in refusing to allow the appellant's claim of $3,850 for a ‘family allowance’ to be paid out of the funds realized from the sale and rental of the Illinois land. This question would appear to have been settled by two recent decisions of this court. One of said decisions is the case of McGarvey v. Darnall, 134 Ill. 367, 25 N. E. 1005. In the latter case we held that a judgment against an administrator in one state is not competent testimony to show a right of action against either a domiciliary or ancillary administrator in another state, or to affect the assets in such other state. The second decision is the case of Smith v. Goodrich, 167 Ill. 46, 47 N. E. 316, which holds the same doctrine as that announced in McGarvey v. Darnall, supra. It is not necessary here to repeat the reasoning by which the conclusions announced in the cases thus referred to are supported.

It is, however, claimed by the appellant that the administration in California is the principal administration, and the administration in Illinois is merely ancillary; that personal property is governed in its distribution by the law of the domicile; and that, after domestic creditors are paid, the property should be remitted to the place of the principal administration. Here, the domicile of the deceased, Edward O. Smith, was in Santa Clara county, Cal. His widow was appointed administratrix in the state of his domicile, and is the principal administratrix. It is therefore claimed that so much of the moneys or funds now in the hands of the master and receiver in the partition suit should be paid over to the appellant, representing the principal administration, as may be necessary to pay the claims allowed against the estate in California, including the appellant's claim for a ‘family allowance.’ In Young v. Wittenmyre, 123 Ill. 303, 14 N. E. 869, we held that the administration granted in the state of decedent's domicile at the time of his death is the principal administration, and that granted in another state is but ancillary to the other; and that when the...