30 Ill. App. 48 | Ill. App. Ct. | 1889
This is an appeal from a decree of the Probate Court dismissing the petition of the appellant praying leave to sell a certain lot in the city of Ottawa on account of the deficiency of personal estate to pay the debtg of Patrick Terry, deceased, of whose estate the appellant is administrator.
The deceased was a priest of the Roman Catholic Church, for many years pastor of a church in Ottawa, but died a resident of Chicago. The lot was once the property of one Robert Montgomery and was sold under a decree of the Circuit Court of La Salle county after his death, and, by friendly arrangement between the widow and Terry, was bought in by him.
He had been fully reimbursed, and held the title only for her and her children; was always ready to convey to her, oías she might direct, but the business was neglected and he died holding the title in trust, with nothing in writing as evidence oí the trust, nor any circumstances from which the law could raise a resulting trust.
Under the amendment of the administration act, approved June 15, 1887, the Probate Court has equity powers in cases of this class, and the practice is required to be as in cases in chancery. When the answer of Mrs. Montgomery came in, asserting the trust, there was no amendment of the petition setting up the statute of frauds in opposition to the trust. But if there had been, the court would not have been justified, in the exercise of its equitable powers, in enforcing a naked legal right against conscience. Browne, Statute of Frauds, Sec. 129.
Whether there is any error in any other part of the decree than that dismissing the petition is a matter which does not concern the appellant. He can not assign as error, action that does not prejudice him. Wright v. Bishop, 88 Ill. 302.
Decree affirmed.