13 Ill. 157 | Ill. | 1851
The first question to be considered is, Had the executor such notice of the presentation of the claim as the law required, to authorize the County Court to proceed to adjudicate upon it ? This involves the consideration of several sections of our Statute of Wills, by which the practice in such case is regulated. The 95th section requires the executor to give notice to all persons having claims against the estate to attend, at a specified time of the Probate Court, for the purpose of having their claims adjudicated, and provides, “ if no objection be made to said claim by the administrator, widow, guardian, heirs, or others interested in said estate, the claimant shall be permitted to swear that such claim is just and unpaid, or that the same is correct, after allowing all just credits; and if objections be made to such claim previous to said claim being sworn to, the account shall be adjudicated as is now required bylaw.” The 116th section provides as follows: “ The manner of exhibiting claims against the estate of any testator, or intestate may be by serving a notice of such claim on the executors or administrators, or presenting them the account, or filing the account or a copy thereof with the court of probate.” The succeeding section provides, that upon the trial of such claim or of a suit brought against the executor or administrator, if a balance shall be found' due the estate, judgment shall be given therefor, and execution issue, or other legal process which a justice of the peace might issue in like cases. The 118th section provides that “persons having claims against estates, upon giving the executor or administrator ten days’ notice of the time they intend to present the same to said court, the court, upon examination, shall allow or reject such claims: Provided, the court may allow further time for either party to produce other and further evidence in his favor.”
The various provisions of these sections must be considered together as regulating the practice of Courts of Probate when entertaining claims against estates and adjudicating thereon. When a claim is presented at a term of the court, as designated in the notice given under the 95th section, the executor is presumed to be present, and the claimant is therefore not required to notify him of his intention to present his claim at that time. The adjudications of the court at that term upon claims must, therefore, be presumed to have been regular, and to have been made upon the proper proofs in the presence of both parties. In that section no express provision is made for the postponement of the consideration of such claims to any subsequent term. If they are not then finally disposed of, they must be continued by an order of the court to some specified time, or be again presented under the 118th section. This section, it will be observed, requires the person intending to present a claim to the Court of Probate against an executor or administrator, to give ten days’ notice of the time that he intends to present the same, when the court may allow or reject the claim, or grant further time for either party to prepare for trial, according to the exigencies of the case. This section provides an intelligent and just practice for that court, and was no doubt intended by the legislature to be pursued in all cases of claims against estates, whether presented under a notice from the claimant or the executor, or filed under the 116th section of the same law. There is as much reason and propriety in allowing parties further time to prepare for the investigation of claims presented to the court, by producing the necessary proofs, when the claim is presented in pursuance of the notice given by the executors to all creditors, as when the claim is presented under a notice from the creditor to the executors. It is this notice which justifies the court in taking cognizance of claims, and which requires the executor to appear and contest them. When the parties are thus before the court, its adjudication is final, and conclusive upon them. What would constitute such final adjudication in all cases, it is not now necessary to determine. We are not prepared to say that the omission of the court to make an order either disallowing the claim or continuing it for further investigation, would constitute such an adjudication as would bar the right of the claimant to prosecute it further.
In the case before us, we see that this claim was presented to the Probate Court on the 13th of July, 1849. At that time the claim was neither finally disposed of, nor continued for further investigation. We are to infer that the claimant failed to establish it by proof; and unless the claim was withdrawn, or he showed sufficient cause for further time'for the investigation of it, the executor had a right to have an order entered for its rejection, which would have been a perpetual bar to its further prosecution. The claim was not allowed upon the oath of the creditor, and in that event the 95th section declares that it should be adjudicated as required by law; which we understand to mean, upon the proofs to be then adduced, or upon some subsequent occasion to which the controversy might then be continued, or at which it might be presented to the court after notice given according to law. No order whatever was made; and the reasonable inference is that the claim in question was withdrawn, either to be abandoned, or again to be presented, when the party might beliéve he could establish it by sufficient proof. This inference is very much strengthened, if its truth is not conclusively established, by the order of the court by which the claim was allowed. That order was entered on the 19th of March, 1850, eight months after the term at which the claim was first presented for allowance against the executor.
That order of the court commences thus: “ This day was presented a note dated September the 9th, 1833, drawn,” &e. This shows that the note was presented as an original claim, without a reference to any previous presentation of it or to its being upon the files of the court. It may be that it was left among the archives of the office; but if so, we are to conclude that it was there for safe-keeping merely. There is no intimation in any part of the record of the County Court, that this order was a continuation of a previous proceeding pending before that court. It is original in its character; and this bill shows that the executor was never notified that the claim was to be then presented for allowance by the County Court. This proceeding of the court was altogether ex parte, and as such the executor ought not to be concluded by it.
It has ever been a fundamental principle with all courts of justice, that a party shall not be condemned unless he has had actual or constructive notice of the proceeding against him. And this principle applies with all its force to proceedings against an executor or administrator, who represents the rights and interests of others, and whose attention is not quickened by individual responsibility. From this consideration alone, if from none other, we should be led to conclude that claims should not be heard or decisions made unless notice had been given of the time and place of hearing, as required by the several sections of the statute above referred to, or unless the hearing had been continued to some specified time, as is required by the 118th section.
Considering, as we do, that this judgment was not conclusive upon the executor, for the want of notice to appear and defend, the question arises, in what way he may obtain relief against the effects of the adjudication. We are not now prepared to say that this judgment was an absolute nullity, from the omission of the record to show a notice to the executor. The County Court, although of limited, is not strictly speaking of inferior, and certainly is not a court of special, jurisdiction. It is a court of record, and has a general jurisdiction of unlimited extent over a particular class of subjects; and when acting within that sphere, its jurisdiction is as general as that of the Circuit Court. When, therefore, it is adjudicating upon the administration of estates over which it has a general jurisdiction, as liberal intendments will be granted in its favor, as would be extended to the proceedings of the Circuit Court; and it is not necessary that all the facts and circumstances, which justify its action, should affirmatively appear upon the face of its proceedings. Den ex dem, Obert v. Hammul, 3 Harrison, 79; Crigdon’s Lessee v. Astor, 2 Howard, U. S. 319.
This judgment, therefore, may be binding upon the executor until it shall be set aside or vacated by some court of competent jurisdiction. This might have been done by an appeal to the Circuit Court. The record under consideration shows us, that the executor could not take an appeal, for he was ignorant of the judgment, and remained so, until after the time within which he could have appealed had expired. He attempted to take the record of the County Court before the Circuit Court by aid of a certiorari, but that attempt proved abortive, by reason of the unskilful manner in which the petition for that purpose was drawn. This left the judgment of the County Court as effective against him, as if no attempt had been made to reverse it. He has now applied to a court of chancery to have that judgment opened, that its merits may be investigated. It is within the ordinary jurisdiction of this court to grant relief against judgments at law, either by granting new trials, or by perpetual injunction, if it shall appear that the judgmént complained of was obtained by fraud, or resulted from inevitable accident, and that the courts of law cannot grant adequate relief. And we do not hesitate to say, that the Court of Chancery is entirely competent to grant relief against a judgment at law, which has been rendered by a court not having jurisdiction over the person of the defendant, especially where the record of the court at law does not affirmatively show the facts which would confer such jurisdiction. It is a controverted point, which we need not now undertake to settle, whether a judgment at law, when the record is silent as to the facts which would give it jurisdiction over the person, shall be considered as utterly void, or not, when collaterally drawn in question. Let this be as it may, it is the right of the party to be relieved against such a judgment, and a court of chancery is the only tribunal, where, as in this case, appeal or writ of error will not avail, which can grant relief. Other principles might be invoked in support of chancery jurisdiction over the case under consideration, but we choose to place it upon those already advanced.
We are now brought to the consideration of the claim adjudicated by the County Court; for chancery, having acquired jurisdiction of the controversy, it is competent not only to open the judgment, but to examine the merits of the claim upon which that judgment was founded, and to make a final disposition of the original demand. It was not earnestly contended on the argument, that there is any merit in the claim presented against the executor, or that it was founded upon any legal liability, against the estate of the testator.
This claim originated in the supposed indorsement, by the testator, of a certain promissory note in these words, “ I assign the within note to Alexander Meadows, for value received of him, April 10th, 1840.” To this assignment there is not any name subscribed, although the testator was the payee of the note. It cannot be pretended that those words would make him liable, he never having signed the indorsement.
The deposition of Frank, taken in this suit, shows that he was present when the testator passed the indorsed note to Meadows, and that Frank wrote the indorsement, at the request of the .testator. That no consideration was paid for the note so far as witness knows; his recollection is, that Meadows was to have the interest due upon the note as his compensation for collecting it. Why the indorsement was not signed, the witness does not know, but he is of the opinion that it was the intention to transfer the note to Meadows. This evidence, instead of showing a liability against the estate, clearly establishes that the testator never intended to become liable to Meadows, and would show a sufficient defence to an action, if he had signed the indorsement. , The transfer was only intended to aid Meadows in making the collection, for which he was to receive the interest due upon the note, when it should be collected. To him no guaranty was assumed or intended. The decree of the Circuit Court is reversed, and a decree will be entered here, perpetually enjoining the judgment of the County Court.
Decree reversed.
