154 Ill. App. 156 | Ill. App. Ct. | 1910
delivered the opinion of the court.
The only question presented for consideration is, does the bill state a case over which a court of chancery will take jurisdiction? The demurrer is general and special, the special ground of demurrer being that the complainants have a complete and adequate remedy ' at law.
The contention of appellees is that the remedy of complainants is to procure letters of administration on the estate of Peter Brandenburg, and that the proceeding against the defendants, whatever the nature of it might be, should be prosecuted by the administrator; and that under the facts stated in the bill the complainants who are some of the heirs, cannot maintain a suit in chancery against the remaining heirs and other parties. The granting of letters of administration with any proceedings that might be had in the ' Probate Court is not a remedy at law in the ordinary " sense.in which that term is used. In England originally the king by his ministers took charge of personal estates; afterwards the trust was committed to the ordinary, an officer of the ecclesiastical courts, and until 1859, the ecclesiastical courts had jurisdiction of personal estates. In the United States the right of administrating upon estates is regulated by statute and such proceedings are entirely statutory. The statutes of Illinois provide (section 18 of chapter 3): “Administration of the estates of all persons dying intestate shall be granted to some one or more of the persons- hereinafter mentioned,” etc. The wording of this statute has been substantially the same from the earliest legislation in the state. In 1905, a proviso was added, that when the heirs are residents of the state and the estate is solvent and without minor heirs and it is desired by the parties in interest to settle the estate without administration, this statute shall not apply. Hurd’s Statutes 1905, sec. 18, chapter 3.
The statute of descent (Hurd’s Statutes, chap. 39) provides that “estates, both real and personal, of resident and non-resident proprietors in this state dying intestate * * * shall descend to and be distributed in the manner following, to-wit: First. To his or her children, in equal parts * * * Fourth. When there is a widow * * * and also a child or children * * * the widow or surviving husband shall receive, as his or her absolute estate, one-third of all the personal estate of the intestate.” This statute must be construed with the chapter on administration. The object of administration is to pay the debts of the deceased and distribute the remaining personal estate amongst the heirs according to the statute of descent.
The bill alleges that the deceased died intestate; that no administration has been taken out; that there is no property or effects belonging to the estate other than is mentioned in the bill; that there are no debts and the funeral expenses have been paid. The bill however does not allege that the heirs are residents of Illinois or that there are no minor heirs, except as such may be inferred from the various allegations, and it is obvious the heirs cannot settle the estate by agreement and without litigation. While cases may be found in this state where suits by certain heirs have been maintained against other heirs or even against other parties to procure a distribution of the estate of deceased persons, they have usually been concerning the estates of infants and aré found in the earlier reports. Lynch v. Rotan, 39 Ill. 14; McCleary v. Menke, 109 Ill. 294. “While in some of the earliest cases in this state it is held that equity retains a general jurisdiction over administrators, concurrent with that exercised by probate courts, yet the rule as now declared is, that courts of equity will not exercise jurisdiction over the administration of estates except in extraordinary cases, and by the liberal statutory rules for the settlement of estates, based on equitable principles and enforced in courts of probate, the reasons for equitable jurisdiction' in such cases are greatly restricted. Probate courts are established for the settlements of such estates, and questions arising in the course of administration are decided by them to the practical exclusion of courts of equity.” Goodman v. Kopperl, 169 Ill. 136. The cases in which chancery has taken jurisdiction in the matter of estates are ordinarily in aid of administration and to assist creditors after administration has been taken out. In recent years legislation has extended the equitable powers of probate courts so that there is not now the reason that formerly existed for courts of chancery taking jurisdiction over estates. While fraud is one of the original heads of original equity jurisdiction, the administration of estates is not within the jurisdiction of courts of chancery except in extraordinary cases and then only in aid of the Probate Court where administration has been taken out and the powers of the Probate Court are inadequate to give full and complete relief.
Sections 81 and 82 of the Administration Act give ample powers to the Probate Court to cite parties before it and examine them concerning any concealed or embezzled goods, chattels, moneys or effects or any evidence of debts, or to cite any person who has knowledge or information concerning any indebtedness belonging to any deceased person, and to make such order in the premises as the case may require. The courts have held that in proceeding under this section the Probate Court exercises equitable powers and procedure. Martin v. Martin, 170 Ill. 19; Dougherty v. Hughes, 165 Ill. 395; Seavey v. Seavey, 30 Ill. App. 625.
Two of the defendants, Ruby and Raymond Brandenburg, are minors and are not heirs of the deceased, Peter Brandenburg. It also appears from the allegations of the bill that one of the defendants is the widow of Peter Brandenburg. Under the statute she is entitled to a widow’s award. A court of chancery has no power or authority to appoint appraisers to set-off such an award. If the estate.of Peter Brandenburg “were administrated by a court of chancery, as here proposed, the method of distribution would be different from that presented by the law.” Goodman v. Kopperl, supra. A court of equity, when it does assume jurisdiction over the administration of an estate, takes jurisdiction over the whole estate and no other court would interfere in a matter already within the control of a court of general jurisdiction. The Probate Court if this suit is maintainable will be deprived of all right to take any action in the matter of the estate. “It is also well settled that a court of chancery will not, except in extraordinary cases, supersede the Probate Court in the administration of an estate. To maintain the present bill would be to deprive the Probate Court of all further power and jurisdiction over the estate.” Strauss v. Phillips, 189 Ill. 27; Shepard v. Speer, 140 Ill. 238; Harding v. Shepard, 107 Ill. 264.
We conclude that a court of chancery will, when the question of jurisdiction is raised, only take jurisdiction when the Probate Court has first attempted to administer the estate in the regular course of procedure and for some extraordinary reason the powers of the Probate Court are inadequate to administer full and complete justice. When such a condition arises, then a court of chancery will assume jurisdiction, supersede the Probate Court, and take charge of the entire administration. There having been no attempt to administer this estate in the Probate Court the demurrer was properly sustained.
Affirmed.
