171 Ill. App. 226 | Ill. App. Ct. | 1912
delivered the opinion of the court.
The substance of the declaration is that James K. Bardin, as administrator of his wife’s estate under an order of the County Court, sold all the real estate of his deceased wife to pay the claims allowed against her estate, and that out of the proceeds of such real estate he paid $2,828.79 of his own personal debts on which his wife was surety, and that he has failed and refused to inventory and charge himself with that sum as due from himself to the estate.
The contentions of the administrator and his bondsmen are (1) that the estate had no claim against the administrator personally until the estate had paid the notes which Mrs. Bardin had signed as surety for him, and that on the payment of the claims by the estate such claims became personal estate and that he, as surviving husband, takes all her personal estate that remains after the payment of the debts and (2) that he, as administrator, has made a final report in the estate to the Probate Court, which has been approved, therefore the matter now in controversy has been adjudicated and the heirs are concluded by the order of the Probate Court.
There is nothing in the declaration which shows that it was ever brought to the attention of the Probate Court that of the claims amounting to $2,979.93 allowed against the estate of the deceased, and remaining unpaid after the personal estate had been exhausted, $2,828.79, were not debts of the deceased, but were the personal debts of the husband, who as administrator had them allowed against his wife’s estate. While the Probate Court in the settlement of estates and the adjustment of the accounts of executors exercises equitable jurisdiction, so far as may be necessary to adjust the same, (In re Corrington, 124 Ill. 363; Whittemore v. Coleman, 239 Ill. 450; Marshall v. Coleman, 187 Ill. 556;) yet, if the facts concerning the administrator’s primary liability for the $2,828.79 were not brought before the Probate Court, then there has been no adjudication as between the estate and the administrator. An order of the County Court approving an executor’s report, declaring the estate settled and discharging the executor, has the effect only of closing the account up to the time the report is approved, and is void as to unsettled matters of the estate. Starr v. Willoughby, 218 Ill. 485; Atherton v. Hughes, 249 Ill. 317; Diversey v. Johnson, 70 Ill. 647. The administrator has not been discharged although the report filed may have been approved.
The declaration avers that $2,828.79 of the claims allowed and paid by the administrator were his personal debts and that he has neither repaid the estate nor charged himself with any part of such sum. The demurrer admits this statement to be true. The estate descends to the heirs subject to the payment of the debts of the deceased, but not subject to the payment of the husband’s debts, and after the payment of the debts of the deceased the division of the estate among the heirs should be made, and its descent is regulated by the nature of the estate at the time of her death.
The declaration avers that the administrator was solvent. The administrator being financially able to pay his personal debts, upon which his wife was surety, and having paid such debts out of the proceeds of her real estate, should have charged himself with such sums. Wachsmith v. Penn. Mutual Life Ins. Co., 241 Ill. 409; In re Walker, 125 Cal. 242; Baucus v. Barr, 107 N. Y. 624; McCarthy v. Frazer, 62 Mo. 263; Parker v. Irick, 10 N. J. Eq. 269; Rader v. Yeargin, 85 Tenn. 486; McClamrock v. Gregory, 119 Ind. 509; 2 Woerner on Adm. Secs. 311 and 512.
At the time of the death of Johanna J. Bardin, her husband was not indebted to her. It was only by the fraudulent act of the husband in failing to pay his debts and causing them to be paid out of the real estate of his deceased wife, that a claim accrued to the estate against him. The argument of the appellees in effect is that the administrator by his fraudulent financiering has converted his deceased wife’s real estate into personal estate and that he now inherits, by reason of his fraud, what he would not have inherited if he had done what he was able to and ought to have done, and that the court should not compel him to account for property converted from real estate into personal estate in the manner alleged in the declaration, because he as surviving husband inherits all her personal estate. After the proper accounting has been had, the disposition of the property will be made either in the Probate Court or in some other court and is not involved in the decision of the demurrer. The court erred in sustaining the demurrer. The judgment is reversed and the cause remanded with instructions to overrule the demurrer.
Reversed and remanded with directions.
