« ForrigeFortsett »
securing evidence of violations of the law. Even searches of that kind are not necessarily unreasonable, and one who is in legal custody may have his person searched by officers of the law without violating the provision of the constitution.
An argument is drawn from the rule of this court that in a civil suit the court has no power to compel a physical examination of a party to the suit. There is no similarity between the two cases, nor is there any claim that the superintendent may compel the examination of a policeman. But the rule that the court cannot compel an examination of a party does not rest upon immunity, under the constitution, from an unreasonable search. There is no doubt that a statute might be enacted requiring a party to submit to an examination as a condition of maintaining the suit, and many courts have held that such an examination either rests in the discretion of the court or may be demanded by the opposite party as a matter of right. In any view of the case we cannot see how it can be said that the superintendent of police is compelled by the constitution to remain in ignorance of the physical capacity of policemen to perform the duties required of them, with the necessary consequence that the policemen may retain positions which they are incapacitated to fill and draw salaries for services they are unable to perform. Even if the examinations conducted for the purpose of ascertaining the facts should be characterized as searches of the person, they cannot be considered unreasonable.
The court did not err in overruling the demurrer, and the judgment is affirmed.
Harvey H. ATHERTON, Admr., Desendant in Error, u's.
HARRY W. HUGHES et al. Plaintiffs in Error.
Opinion filed February 25, 1911–Rehearing denied April 5, 1911.
1. EXECUTORS AND ADMINISTRATORS—mere approval of a report does not work discharge of administrator nor settle estate. The mere approval by the county court of an administrator's report of a sale to pay debts does not work the discharge of the administrator nor settle the estate.
2. Same-when administrator de bonis non may petition to sell land pay unsatisfied claims. Where the amount realized from an administrator's sale is not sufficient to satisfy the debts of the estate, it is the duty of such administrator, when more land of the estate becomes subject to sale through the termination of the widow's homestead, to petition the court to sell such land to pay the unsatisfied claims which have been probated against the estate, and if the administrator has died his duty may be performed by an administrator de bonis non.
3. SAME-land occupied as a homestead may be sold for debts cfter homestead estate is extinguished. Where the widow is in possession of a tract of land as a homestead which is not worth more than $1000 the tract cannot be sold to pay debts of the estate until the homestead estate is extinguished, and holders of unsatisfied claims which have been probated against the estate may wait until the homestead estate is extinguished before applying for a sale of the land, where there is no other means of satisfying such claims.
4. Same—when no allotment of homestead is necessary. Where the twenty-acre tract of land occupied by a householder as a homestead is not worth more than $1000 at the time of his death and is separated by a highway from the remainder of the eighty acres of which it is a part, the widow may, by arrangement with the heirs, occupy such twenty-acre tract as her homestead, and no formal allotment or assignment thereof to her as a homestead is necessary to protect it from sale to pay debts of the estate.
5. Same-effect where tract occupied as a homestead increases in value. Where the boundaries of the premises occupied by the widow as a homestead are once fixed her homestead estate is not affected by the decrease or increase in value of the premises, and the fact that the tract of land so occupied, which at the death of the householder did not exceed the value of $1000, increases in value beyond that amount, does not authorize creditors of the estatę to enforce their claims qut of the excess nor bar their right to enforce them by a sale of the premises after the homestead estate is extinguished.
6. SAME—there is no fixed time for proceeding to sell land to pay debts after homestead estate is extinguished. The courts can not lay down an inflexible rule fixing the time, after the extinguishment of the homestead estate, within which an application must be made to sell the homestead premises to pay unsatisfied claims, but each case must rest largely upon its own facts.
7. SAME--when validity of claims is res judicata on application for second sale. Upon application by an administrator de bonis non to sell homestead premises after the extinguishment of the homestead estate to pay claims unsatisfied after the administrator's first sale, the question of the validity of claims which were probated on the adjustment day and adjudicated upon in the first proceeding to sell land is res judicata.
8. SAME-application to sell real estate is not a collateral proceeding as against the heir. An application by an administrator de bonis non to sell land to pay claims which were unsatisfied by a sale of a former administrator is not a collateral proceeding as against the heir, and such an application can only be sustained where it appears that there are existing debts against the estate.
9. Same—when prima facie case made by production of judgment is not established. Where an administrator de bonis non relies, in part, upon judgments of the county court allowing claims after the adjustment day, under section 61 of the Administration act, to show the existence of the debts for which the sale of land is applied for, such judgments must show, on their face, that the county court had jurisdiction to render them; and if the alleged judgments do not amount, in law, to judgments, and the record fails to show that the administrator was before the court by service of summons or appearance when the claims were allowed, the prima facie case which is ordinarily made by the production of a judgment allowing a claim is not established.
10. Same—when it is presumed that an administrator sold decedent's equity of redemption, only. Where, at the time of a sale by an administrator, the county court was without power to order the land sold disencumbered of mortgages thereon, the presumption is that the administrator sold only the interest of the decedent in the land and that he received the proceeds of the sale for the decedent's equity of redemption, and he has no right, in such case, to pay the mortgages with the proceeds of the sale.
II. SAME-heir may defeat a further sale to make good a loss caused by administrator's mismanagement. If an administrator has in his hands assets of the estate arising from personal property or from the sale of real estate sufficient to pay the indebtedness of the estate and he commits a devastavit or so neglects or mismanages the estate that the fund is lost, the heir may defeat a further sale of land to make good the loss to creditors, and the remedy of such creditors is against the administrator or his bondsmen.
12. SAME-approval of report wherein the administrator takes credit for improper claims does not bind the heir. The fact that the county court approved an administrator's report of a sale of land in which he took credit for paying two mortgages on the land out of the proceeds of the sale, does not bind the heir in a subsequent proceeding for another sale to pay claims unsatisfied after the first sale, where the administrator was not authorized to sell the land free from the mortgages and made no representations at the sale that the mortgages would be paid from the proceeds. (Millard v. Harris, 119 Ill. 185, distinguished.)
Wrir of Error to the Appellate Court for the Third District ;-heard in that court on appeal from the Circuit Court of Fulton county; the Hon. ROBERT J. GRIER, Judge, presiding
This was a petition filed March 13, 1909, by Harvey 11. Atherton, as administrator de bonis non of the estate of William Hughes, deceased, in the circuit court of Fulton county, for an order to sell real estate to pay debts. An answer and replication were filed and the cause was referred to a master to take the proofs and report his conclusions. The master took the proofs and filed a report recommending that the prayer of the petition be granted. The court, after overruling exceptions to said report, entered a decree substantially in accordance with the recommendations of the master, which decree has been affirmed by the Appellate Court for the Third District, and the cause has been removed into this court for further review by certiorari.
It appears from the pleadings, proofs and master's report that William Hughes departed this life, intestate, in Fulton county on July 18, 1878, leaving him surviving Hannah Hughes, his widow, and five children as his sole and only heirs-at-law; that he died possessed of personal property of the value of $1315, and was seized, at the time of his death, of the west half of the south-west quarter and the west half of the north-west quarter of section 34, township 5, north, range 1, east, in Fulton county, Illinois; that Vincent M. Grewell, on August 13, 1878, was appointed administrator of the estate of said William Hughes, deceased, and qualified as such, and thereupon filed an inventory and appraisement of said estate; that at the November term, 1879, said Vincent M. Grewell presented his petition, as such administrator, to the county court of Fulton county for an order to sell real estate to pay debts, from which it appeared there was a deficiency of personal estate to pay the debts of said estate; that the county court entered an order authorizing and empowering said administrator to sell the west half of the north-west quarter and the south sixty acres of the west half of the south-west quarter of said section 34 to pay the debts of said estate; that said administrator advertised and sold said real estate, at which sale Hannah Hughes, the widow, purchased the west half of the north-west quarter of said section 34; that the sale was approved, and the administrator thereafter filed a report showing that he had paid all preferred claims against said estate in full, two mortgages,—one for $826.65 and one for $1312.50,—which were first liens upon said real estate, the costs and expenses of administration, and a dividend of twelve and one-half per cent upon the seventh-class claims allowed against said estate, and that the assets of said estate were exhausted, leaving debts of the seventh class unpaid, which report was approved; that said administrator died in 1902 without having taken any further action in said estate. It also appears that at the time of his death William Hughes and his family resided upon the north twentythree acres of the west half of the south-west quarter of said section 34, which were then worth about $600, and that his widow, Hannah Hughes, continued to reside upon the said twenty-three acres up to the time of her death, on August 9, 1906. The fact that said twenty-three acres were