| Ill. | Jun 15, 1878
delivered the opinion of the Court:
It is supposed by appellees’ counsel that appellant’s only ground for any claim of relief is that of a vendor’s lien, as being the holder of one of the two notes given for the purchase money of the land, and that under the decisions of this court, an assignee of such a note is not entitled to the benefit of such a lien. As this court has frequently decided that a vendor’s lien is not assignable, we do not see how, under those decisions, appellant can assert any claim here, on the ground of such a lien. Hi's title to relief, if any, must be rested on some different principle. It is clear, from the pleadings and proofs, that Beeves, the maker of the note which appellant holds by indorsement from Osborne, was, from the time of the making of the note, ever afterward, utterly insolvent, so that the institution of a suit against him would have been unavailing; wherefore, under our statute, the liability of Osborne as indorser of the note became fixed.
Appellant has, then, a valid claim for the amount of the note, against the estate of Osborne.
Holt, the foreign administrator of Osborne, appointed in the State of Missouri, the domicil of the deceased, comes into this State to collect, by suit, assets of the estate of Osborne. By the doctrine of the common law he could not have brought such suit in this State, in his official capacity, but, in order to maintain such suit here, he must have obtained new letters of administration in this State, and the new administration here would be treated as merely ancillary or auxiliary to the original foreign administration, so far as regards the collection of the effects and the proper distribution of them. Still, however, the new administration here would be made subservient to the rights of creditors, legatees, and distributees, resident within this State, and the residuum be transmissible to the foreign State only when a final account had been settled in the proper tribunal here, upon the equitable principles adopted by our own law, in the application and distribution of the assets found here. Story Confl. Laws, § 513.
In Dawes v. Head, 3 Pick. 144, after stating it as the general rule that the distribution is to be made according to the laws of the country where the deceased was domiciled, it is said: “An exception to the general rule grows out of the duty of every government and its courts to protect its own citizens in the enjoyment of their property and the recovery of their debts, so far as this may be done without violating the equal rights of creditors living in a foreign country. In relation to the effects found within our jurisdiction and collected by the aid of our laws, a regard to the rights and interests of our citizens requires that those effects should be made answerable for debts due them, in a just proportion to the whole estate of the deceased and all the claims upon it, wherever they may be. In the several cases which have come before this court, where the legal character and effects of an ancillary administration have been considered, the intimations have been strong that the administrator here shall be held to pay the debts due to our citizens.”
The present suit is under the authority of our statute enabling a foreign administrator or executor to prosecute suits to enforce claims of the estate of the deceased, or to sell lands to pay debts, in any court in this State, in the same manner as if letters testamentary or of administration had been granted to him in this State. The statute does not apply where administration has been obtained in this State; and it contains the provision that, when, after any suit commenced under it, and before final judgment, administration upon the estate is obtained in this State, the resident administrator or executor shall, upon motion, be substituted as party to the suit, and it shall proceed as if originally thus instituted, and the benefits of the judgment or decree shall enure to such resident administrator or executor, and be assets in his hands. Rev. Stat. 1874, p. 112. An obvious mode of making this suit available for the satisfaction of appellant’s claims, would have been to have taken out letters of administration in this State and proceeded under the last recited provision of the statute. But to have done that would have been attended with inconvenience, and an expense which might have absorbed a good portion of appellant’s claim, and we are inclined to consider that under the facts of this case it was not necessary. The widow and the only heir of Reeves are made parties, the latter an infant, answering by guardian ad litem,. No claim to the land is set up in their behalf, nor does it appear that Reeves ever paid any of the purchase price of the land.
The answer of Holt, the administrator, to the cross-bill of appellant, sets up that the estate of Osborne was duly administered upon in Missouri; that it was solvent; that all claims presented against the estate were paid, leaving a surplus to distribute to the heirs. It may be inferred, then, that there are no claims of creditors involved other than the claim of appellant; that the personal estate of the decedent has been exhausted and distributed; and the land belongs to the heirs of Osborne, subject to the payment of appellant’s claim against the estate, being the note he holds, or further perhaps, as the administrator claims, subject to the payment of the note he holds.
But this latter note, as appears, belongs beneficially to the heirs alone, and its collection as here sought to be enforced is for their sole benefit, the proceeds to be paid to them. As between the heirs of Osborne and appellant, the latter has the preferable right to the proceeds of the sale of the land as well as any other portion of the estate, to the extent necessary for the payment of his claim, and in justice and equity should be first paid before the heirs be allowed to appropriate to their own use the property of the estate. The present proceeding is to enforce such an appropriation by the aid of our own laws— to convert realty in this State, which is subject to the payment of a just claim of one of our own citizens against the decedent, into money, and withdraw the same into a foreign jurisdiction, where the claim of appellant might be endangered, if not incapable of enforcement. As it sufficiently appears there will be no rights of creditors to be affected, and that it is a question solely between the heirs and a creditor of the estate residing here, we think it a case where appellant, a citizen of this State, should be protected in the recovery of his debt, agreeably with the spirit of the principles as recognized in the authorities above referred to. Such is the equity of the case, and appellant has here been brought into a court of equity by the administrator for the adjustment of their respective equities. By our statute, where real estate descends from an intestate to heirs, the same actions upon demands against the intestate which lie against administrators, may be maintained against the administrators and heirs; and the heirs are made liable to the creditors of the ancestor to the full amount of the lands descended.
It is set up in the administrator’s answer to the cross-bill of appellant, that the time limited by the law of Missouri for the presentation of claims against the estate of Osborne had expired. Ho proof appears upon the subject. We can not take judicial notice of the statute law of that State; and such a law there would not apply in this State.
The minor heirs of Osborne were made parties defendant in the original bill and cross-bill, and were named as such in the summons, but were not served with process or otherwise brought into court. Their appearance was entered by an attorney. This was not sufficient to give the court jurisdiction of the persons of the minor heirs. That could be acquired only by service upon the minors themselves or by publication of notice.
The attorney had no authority to enter their appearance. Greenman v. Harvey, 53 Ill. 386" date_filed="1870-01-15" court="Ill." case_name="Greenman v. Harvey">53 Ill. 386; Clark v. Thompson, 47 id. 25; Hickenbotham v. Blackledge, 54 id. 316.
The decree will be reversed, and the cause remanded for further proceedings consistent with this opinion.
Decree reversed.