| Ill. | Apr 18, 1912
delivered the opinion of the court:
The bill in this case, so far as it attacks the decree of the circuit court of Jo Daviess county entered in the partition suit in the year 1874, is based upon errors apparent upon the face of the decree, and we are of the opinion the complainants are barred of relief on the ground of the lapse of time, as a bill of review for matters apparent upon the face of a decree can be brought only within the time allowed for the suing out of a writ of error, (Dolton v. Erb, 53 Ill. 289" date_filed="1870-01-15" court="Ill." case_name="Dolton v. Erb">53 Ill. 289; Pestel v. Primm, 109 id. 353; Allison v. Drake, 145 id. 500;) unless the complainant is under disability, which does not appear to be the case here. The contention, therefore, that the partition decree" entered in 1874 should be set aside for error on its face cannot be sustained.
Neither do we think that the complainants are entitled to have a trust in their favor impressed upon the fund in the hands of the executor of Joseph Dirnberger, deceased, on the ground that said fund is the proceeds of the sale of the real estate of which Joseph Genz died seized. At the time the real estate of Joseph Genz was sold under the partition decree, George Genz, the father of the complainants, had no interest in said real estate, he having prior to that time sold all his interest in his father’s estate to his mother. If the complainants have any interest in said fund they take such interest through their uncle, Prank Genz, who was a party to the partition suit, and that decree was binding upon him and is binding upon his heirs. The partition sale was regular in all particulars, unless the court that entered that decree erred in holding that Margaretta Dirnberger had a dower interest in said real estate. As it is beyond controversy that she was the owner of a four-tenths interest in the fee as purchaser of the George Genz interest and as heir of Maggie Genz, deceased, it was manifestly the view of the circuit court, when the partition decree was entered, that by the re-marriage of Margaretta Genz she forfeited the interest in said estate which she took under the will, which had the effect to revive in her a dower interest in said real estate. Whether or not that view of the court was correct will not now be determined. The decree in the partition suit has now been in force thirty-five years, and it is at this date too late to raise the question that the court erred 'in allowing Margaretta Dirnberger dower in that proceeding in the real estate of her first husband, Joseph Genz, deceased. The partition suit, so far as it affected the fee to said real estate, was regular, and it cannot be now disturbed.
The claim that there is some amount due the complainants, growing out of the fact that at the time of the partition sale, and as a part of the proceeds thereof, $867.70 was paid to Margaretta Dirnberger as guardian of Frank Genz, is a matter that should have been adjusted in the county court. If Margaretta Dirnberger was indebted to the estate of Frank Genz his administrator should have presented a claim against her estate in the county court, in which her will was admitted to probate and in which her estate was in the course of administration. It is only in extraordinary cases that a court of equity assumes jurisdiction in the settlement of estates by superseding the jurisdiction conferred upon the several probate and county courts existing in this State. Shepard v. Speer, 140 Ill. 238" date_filed="1892-01-18" court="Ill." case_name="Shepard v. Speer">140 Ill. 238; Dougherty v. Hughes, 165 id. 384.
There is another reason why we think the decree of the circuit court should not be disturbed, and that is, that the laches of the complainants is such as to bar them from any equitable relief. Joseph Genz, the grandfather, died in 1871. The partition sale was had in 1874, at which time George Genz, the father of complainants, was of legal age. Frank Genz died in 1884, and the rights of the complainants or their father, through whom they claim, in the estate of Joseph Genz and in the estate of Frank Genz, then became fixed and determined. Since that time all the parties who were familiar with the facts surrounding the settlement of the Joseph Genz estate and the- Frank Genz estate have died, and it would be almost impossible at this late date to ascertain how the matters pertaining to the closing of the two estates were consummated except as they appear of record, which may not fully disclose all of the transactions pertaining to the settlement of the said estates. The claim of the complainants, upon its face and as set forth in their bill, appears to be stale, and the rule is almost universal that a court of equity will not encourage the assertion of a claim which is stale. Howe v. South Park Comrs. 119 Ill. 101" date_filed="1886-05-14" court="Ill." case_name="Howe v. South Park Commissioners">119 Ill. 101; French v. Thomas, 252 id. 65; Kerfoot v. Billings, 160 id. 563.
Finding no reversible error in this record the decree of the circuit court will be affirmed.
Decreg añrmed^