11 Ill. 560 | Ill. | 1850
This was a bill in chancery, filed against the surviving administrator and heirs at law of Lewis Bigelow, and the surety on the administration bond. It alleged that Bigelow borrowed a sum of money of Brooks, and, as security for its re-payment, executed a mortgage on real estate; which mortgage was after-wards placed in the hands of Bigelow, for the purpose of being recorded, but was suppressed by him. It prayed that the mort gage might be set up and foreclosed, and also for general relief. Subsequently, the complainant dismissed the suit as to the surety, and so amended the bill as to strike out every thing relating to the mortgage. The bill was then taken for confessed, and a decree entered, directing the sale of certain real estate, for the satisfaction of the complainant’s debt.
That decree cannot for a moment be sustained. After the amendment of the bill, the case stood as an ordinary suit in equity by a single creditor, to enforce the collection of a demand against an estate; and in which, while the administration of the estate was progressing and undetermined, a decree was made for the sale of real estate of which the intestate died seized— and on which the creditor had no lien—for the payment of the particular debt. The law will not allow this to be done. The property of an estate is not to be reached and disposed of in this way. All of the creditors are entitled to participate in it, in the proportion of their respective demands. Their demands against the estate are to be ascertained, and the proceeds of the property distributed pro rata among them. One creditor cannot, by commencing a suit in equity—if equity will take jurisdiction of a suit to recover a particular demand, where there are no impediments in the way of a recovery at law—obtain any advantage over other creditors in the payment of his debt. If equity will entertain jurisdiction in such a case—and upon this point it is not necessary now to express any opinion—the proper decree, after ascertaining the amount of the indebtedness to the complainant, would be to direct it to be paid in the due course of administration. Otherwise, the provisions of the statute, requiring the distribution of the proceeds of estates among all of the creditors, might be rendered nugatory.
The decree of the Circuit Court will be reversed, and the bill dismissed, with costs, but without prejudice.
Decree reversed.
