18 N.E.2d 218 | Ill. | 1938
This is a direct appeal from an order of the probate court of Cook county, vacating a former order for the sale of real estate to pay certain legacies and dismissing appellants' *174 petition for want of equity. The sole question presented is the constitutionality of section 137 of the act relating to the administration of estates, (Ill. Rev. Stat. 1937, chap. 3, par. 139, sec. 137,) which provides that when it appears that a legacy provided by the will of decedent is a charge upon the real estate of the decedent and there is not sufficient personal estate out of which such legacy can properly be satisfied, the probate court may, upon the filing of a petition therefor by the executor, order the sale of the real estate upon which such legacy is a charge.
Section 20 of article 6 of the Illinois constitution provides that probate courts "shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts; in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts."
It is settled that the jurisdiction of probate courts is limited to the subjects enumerated in this section of the constitution, and cannot be extended by the legislature to other and different matters. First State Bank v. Chicago Title andTrust Co.
We must, therefore, determine whether "all probate matters" and "the settlement of estates of deceased persons" include the sale of real estate to pay legacies. In approaching this question it must be remembered that all presumptions are in favor of the validity of a statute, and, in doubtful cases, the doubt is to be resolved in favor of the law. (Sutter v. People's Gas Light andCoke Co.
In Winch v. Tobin,
In the cases of In re Mortenson, supra, and Frackelton v.Masters,
Bearing these principles in mind, we are of the opinion that the sale of real estate to pay legacies is a probate matter and is an incident to the settlement of the estate, as these terms are used in the constitution. It is admitted that *176 these legacies are a charge on the real estate and that the personalty is insufficient to pay the legacies. Thus, it is manifest that the estate cannot be settled until the real estate is sold for the purpose of paying the legacies. We hold that section 137 of the act relating to the administration of estates is constitutional. The order of the probate court is reversed and the cause is remanded, with directions to enter an order for the sale of the real estate in conformity with the views herein expressed.
Reversed and remanded, with directions.