delivered the opinion of the court.
Clarence Hinshaw, a resident of the State of Iowa for sixty-nine years, died there intestate on August 2, 1955, leaving Mildred H. Rains, a resident of Iowa, and Margaret H. Terrell, a resident of the State of Ohio, his daughters and only heirs at law him surviving. Mildred Rains, one of the daughters, was duly appointed administratrix of his estate by the District Court of Hardin County, Iowa. On February 2, 1956, the administratrix filed in the District Court an inventory which listed various items of personal property having an estimated value in excess of $10,000 and also certain described real estate belonging to her intestate and also located in Hardin County, Iowa, having an estimated value of $18,000.
On December 4, 1956, Donald W. McCorkle, a resident of the State of Indiana, and Victor G. Johnson, filed in the probate court of Kane County their verified petition praying that court to issue letters of administration upon the estate of Clarence Hinshaw to Victor G. Johnson, the public administrator of Kane County, Illinois. This petition alleged that Clarence Hinshaw died intestate on August 2, 1955; that he was, at the time of his death, a resident of Hardin County, Iowa; that his two named daughters, Mildred H. Rains residing at New Providence, Iowa and Margaret H. Terrell
On the day this petition was filed, December 4,1956, the probate court of Kane County entered two orders, one granting the prayer of the petition and directing ■the issuance of letters of administration to Victor Gr. Johnson, public administrator. The other order established heirship and found that Mildred H. Rains and Margaret H. Terrell were adult daughters of, and the only heirs at law of decedent.
On December 13, 1956, Mr. Johnson filed in the probate court of Kane County a verified inventory which the court approved the same day. This inventory omitting the caption and signature and verification is as follows:
“The following is a full, true and perfect inventory of all the real and personal estate of the said Clarence Hinshaw, deceased so far as the same has come to the possession or knowledge of the undersigned Victor Gr. Johnson, administrator by appointment of this court of said Clarence Hinshaw.
“Desci’iption
Personalty ■ Value unknown
Liability insurance policy issued by the Iowa Farm Mutual Insurance Company insuring Clarence Hinshaw re liability arising from automobile collision, etc.”
On January 4, 1957, Mildred Rains, a daughter of decedent entered her special appearance in the probate court of Kane County and filed a verified petition praying that court to revoke the letters of administration theretofore issued to Johnson, and for an order declaring all of the proceedings had in her father’s
This petition further alleged that on December 5, 1956, the said Donald W. McCorkle filed his suit against Johnson, as administrator of the estate of Clarence W. Hinshaw, deceased, in the circuit court of Kane County, Illinois, seeking to recover damages from said administrator for injuries which he, McCorkle, received as the result of an automobile accident which occurred in Kane County, Illinois, on December 18, 1954, when an automobile owned and operated by McCorkle collided with an automobile owned and operated by defendant’s intestate. This petition further alleged that one Bernard Osterhoff had filed a similar
Upon a hearing in the probate court of Kane County that court entered an order dismissing the petition on the ground that petitioner, Mildred Bains, was not an aggrieved or interested person and therefore could not contest the jurisdiction of the court in issuing letters of administration to Victor Gr. Johnson. To reverse that order, an appeal was taken by Mildred Bains to the circuit court of Kane County.
In the circuit court, the administrator, appointed by the probate court of Kane County filed a motion to dismiss the appeal on the ground that only a person aggrieved by an order of the probate court has the right to appeal from an order of the probate court to the circuit court; that Mildred Bains was not a person aggrieved and, therefore, did not have the right to appeal. The circuit court sustained this motion and dismissed the appeal. To reverse that order Mildred Bains appeals.
It is the theory of appellant that the probate court of Kane County lacked jurisdiction to appoint an administrator in this ease inasmuch as the petition does not allege that there is any asset of decedent in this
Appellee has filed a brief in this court and joined in this appeal. No motion to dismiss this appeal has been made in this court. In their brief, counsel insist that appellant, as an heir of decedent, will neither be benefited nor injured or prejudiced or adversely affected by the probate proceedings in Illinois and therefore she is not an aggrieved person within the meaning of section 330 of the Probate Act (Ill. Rev. St. 1957, Chap. 3, § 484) and could not prosecute an appeal from the probate court to the circuit court. In support of this contention counsel state that all that was necessary to give the probate court of Kane County jurisdiction to appoint an administrator was for appellee to claim that there is an estate of decedent in Illinois; that an automobile liability insurance policy issued to decedent by the Iowa Mutual Insurance Company has its situs in Kane County and is therefore an asset in Illinois. To sustain this contention counsel cite and rely upon Furst v. Brady,
In Furst v. Brady, supra, it appeared that on September 6,1936, Peter H. Brady, a resident of Missouri, was involved in an automobile accident in Stephenson County, Illinois, in which his car which he was driving from Wisconsin to Missouri collided with a car belonging to Frank E. Furst of Freeport, Illinois. As a result of the accident Brady and Furst were killed and other persons were injured. Soon after the accident Brady’s son sold his wrecked automobile to a dealer in Forreston, Illinois, for $50.
On January 16, 1937, the public administrator of Stephenson County filed a petition in the county court of that county for letters of administration in the estate
TMee suits arising out of the accident were then filed against the administrator of Brady in the circuit court of Stephenson County. Thelma Brady, the adopted, nonresident, daughter of decedent thereafter filed her petition in the county court of Stephenson County praying that the order appointing the public administrator as administator of Brady’s estate be vacated and that the letters of administration issued to him be revoked. The grounds for tMs motion were that at the time the petition for the appointment of the public administrator was executed, there were no assets of Brady, real or personal, in this state. This petition charged that the appointment of the public administrator was not for the administration of any estate in this state but constituted a fictitious device and means of attempting to obtain service in the civil suits in order that the circuit court might obtain jurisdiction in those actions.
The administrator filed a motion to dismiss the petition of the nonresident heir. A hearing was had resulting in an order vacating the previous order which appointed an administrator of Brady’s estate in Illinois. Jeanne M. Furst, one of the parties injured in the accident and plaintiff in one of the actions pending against the administrator appealed to the circuit court
In the appellate court the administrator filed a motion to dismiss the appeal which was denied. The supreme court granted leave to appeal and held that an Insurance Company licensed to do business in Illinois is regarded as a resident of this state and a policy of insurance issued by such insurer to a nonresident motorist who is killed in an automobile accident in Illinois has a situs in this state: that insured, if living would have had a right of action on his policy in the county where the accident occurred and that this right is an asset of decedent’s estate sufficient to authorize the appointment of an administrator by the probate court of the county in this state in which the accident occurred.
The right of a nonresident heir to appeal from the circuit court to the appellate court was not raised or questioned in the supreme court in the Furst case and the opinion of the appellate court does not set forth the grounds of the motion to dismiss the appeal in that court, but the record of that case discloses that one of the reasons assigned why the appeal should be dismissed was that appellant had no interest in the appeal and that any claims or judgments against Brady’s Illinois estate would never be enforcible against his estate in Missouri. By passing upon the merits of the appeal in that case the supreme court, inferentially, at least, recognized the right of the appellant in that case to appeal from the circuit court to the appellate court.
In the course of its opinion the appellate court distinguished Furst v. Brady,
In re Estate of Klipple (Fla.),
Margaret M. Klipple then filed in the County Judge’s Court of Dade County her verified petition, with supporting affidavits, setting forth the foregoing facts and alleged that she was the mother and next of kin of David J. Klipple and that she first learned of the appointment of Bates as administrator on October 17, 1956; that she had no prior notice thereof; that her son David J. Klipple was at the time of his death, a resident of the State of Michigan and had no property in the State of Florida; that the Detroit Automobile Insurance Exchange insured the deceased and had issued a policy of insurance to him in Detroit, Michigan on March 24, 1953, for 1 year, to expire on March 24, 1954; that the Detroit Automobile Insurance Exchange is organized and exists under the laws of the State of Michigan and is authorized to do business and does business only in the State of Michigan and, is not
It was contended by the administrator that the contingent liability insurance contract constituted the local property or estate of the decedent necessary to give the County Judge’s Court of Dade County, jurisdiction, inasmuch as section two of the venue statute of Florida provides that if decedent had no domicile in Florida then the venue for granting letters of administration should be in any county of the state in which decedent was possessed of any property. In support of this contention Furst v. Brady, supra,
What the Florida court held in the Klipple case was that the contingent liability on decedent’s automobile indemnity insurance policy is properly classified as property but where it appears that an automobile accident had occurred in that state and an action had been instituted against a defendant growing out of such accident and after the action had been brought the defendant died, the fact that he held a liability indemnity insurance policy issued by a foreign corporation not authorized to do business in Florida would not authorize the appointment of an administrator in Florida.
Our Probate Act provides that a person desiring to have letters of administration issued on the estate of a
It is argued that one of the purposes of having administration in every estate is to permit creditors to present claims against the estate of a decedent and that the rule is that an heir can never object to administration of an estate as long as there are unpaid creditors. This is true, but that rule presupposes a valid appointment of an administrator. The petition in the instant case filed by appellant to revoke the order appointing Johnson administrator of her father’s estate is a direct attack upon that order and it challenged the jurisdiction of the probate court of Kane County to make that appointment. The authorities hold that where letters of administration have been issued upon
Appellee states that the only asset of decedent in this state, of which he had knowledge, is the protection afforded decedent by a public liability insurance policy issued to him by the Iowa Farm Mutual Insurance Company and counsel insists that this policy is an asset of his estate with its situs in Kane County. The record discloses that after the petition to appoint appellee administrator was filed, and after appellee had been appointed administrator, nine days elapsed before anything appeared in this record with reference to any insurance policy. When the inventory was filed on December 13,1956, reference was made to an insurance policy but nothing was stated about its situs. The verified petition filed by appellant to revoke the order appointing appellee avers that the situs of this policy is not in Kane County. That petition insisted that the court was without jurisdiction and that the appointment was void. In our opinion, under the cited authorities the appointment of appellee as administrator by the probate court of Kane County was not authorized by the allegations of the petition presented to the probate court of that county and when the insufficiency of that petition was called to the attention of the court, it erred in not vacating the previous order and revoking the letters issued to appellee.
In view of this conclusion it may be unnecessary for us to determine whether appellant had a right to appeal
In Glos v. People,
In People v. O’Connell,
In the Dombroski case the children of the alleged incompetent were parties to the record and as next of kin would be liable for the support of their father if his estate was wasted and for those reasons the court held they were aggrieved parties and should be given the right to appeal.
In the instant case counsel for appellee insist that the estate of Clarence Hinshaw in Iowa is closed and cannot be reopened so far as any judgments which may
Why the claims of McCorlde and Osterhoff were not asserted while the estate of Clarence Hinshaw was being administered in Iowa and before appellant was discharged as snch administratrix does not appear in this record. If the appointment of appellee as administrator stands and their actions against him in Hlinois proceed to judgment, any steps to collect judgments, available to judgment creditors, in this or any other state, would be available to them. Counsel for appellant suggests that in such event an attempt could be made to reopen the Hinshaw estate in Iowa or the judgment creditors might bring an independent action on those judgments in the Iowa courts. In reply to this suggestion counsel for appellee cite section 635.68 of the Iowa Code which provides that all claims not filed within six months from the publication of notice to creditors are barred unless actions against decedent are pending at the time of his death or unless peculiar circumstances entitle the claimant to equitable relief. Counsel for appellee insist that neither McCorlde or Osterhoff could proceed against the estate of decedent in Iowa or successfully maintain an action against the heirs of Clarence Hinshaw and in support of this conclusion cite Rindfleisch v. Mundt,
It appeared in the Eindfleisch case, supra, that on September 2, 1952, five passengers in an automobile driven by Gerald Eindfleisch on Highway 30 while passing through Glidden, Iowa, were injured when the Eindfleisch car collided with a car driven by Gus H. Mundt a resident of Carroll County, Iowa. On March 14, 1953, Mr. Mundt, died, but his death was not due to the accident. His will was filed, notice to creditors
In affirming the order of the trial court which dismissed the claims, the supreme court of Iowa cited section 635.68 of the Iowa Code and quoted therefrom to the effect that all claims not filed within six months from the giving of notice to creditors will be barred unless peculiar circumstances entitle the claimant to relief. The court then stated that up to the time that opinion was filed on June 19, 1956, there had been approximately sixty “peculiar circumstances” cases before that court and that about 40% of them were decided in favor of the presence of such circumstances. The court then went on to say that there have never been two cases exactly alike and that the question whether peculiar circumstances exist which permit the filing of claims after the expiration of the statutory limitation period depends upon the circumstances of each particular case. The court then held that before such claims could be allowed, the burden was on claimants to establish diligence or excuse lack of diligence, and the fact that claimants were nonresidents of Iowa, or had no notice of Mundt’s death until August 31, 1954, or the fact that claimants were negotiating with Mundt’s insurance carrier did not establish circumstances, under the code, so as to entitle claimants to equitable relief.
Under our statute of Frauds and Perjuries (Ill. Rev. St. Chap. 59 secs. 12, 13, 14) the legislature of this state has imposed a positive liability upon an heir for all the debts and claims and demands against the deceased ancestor, to the extent of the real estate received by such heir, if there were insufficient personal
In Baker v. Baker,
Other cases are cited in appellant’s brief where relief has been granted by the Iowa courts after estates have been settled and real and personal property belonging to a deceased ancestor had passed to an heir or devisee. We simply refer to them and to the Rindfleisch and Baker cases to show that there have been cases wherein the circumstances were such that the Iowa courts, long after the estate of a deceased ancestor has been fully settled, have impressed a lien in favor of a creditor upon real estate which formerly belonged to a deceased debtor and which had passed to his heirs or devisees. Whether there may be facts, if Mc-Corkle or Osterhoff, become judgment creditors, which would entitle them to equitable relief in Iowa must await the decision of the Iowa courts but in our opinion there is a contingent possibility that appellant’s property which passed to her upon her father’s death might be involved. For that reason she rightfully considered herself aggrieved within the meaning of section 330 of the Probate Act and was entitled to appeal.
The judgment of the circuit court of Kane County is reversed and this cause is remanded to that court with directions to overrule the motion of appellee to dismiss the appeal and for further proceedings not inconsistent with this opinion.
Reversed and remanded with directions.