the homestead of Hannah Hughes is said by the attorney who represented the administrator in the settlement of said estate to be the reason said premises were not sold at administrator's sale with the other lands of William Hughes, in 1879. It also appears that at the time of the death of Hannah Hughes she owned the west half of the north-west quarter of said section 34, which adjoined said twenty-three acres on the north, and that her administrator sold, with the consent of her heirs, (who were also the heirs of William Hughes,) subsequent to her death, said one hundred and three acres, and some of plaintiffs in error became the purchasers of said one hundred and three acres, or parts thereof, and received deeds thereafter from the said heirs, while others of plaintiffs in error claim through such purchasers as mortgagees. It also appears that on March 12, 1907, one John Stracker, a creditor of William Hughes, whose claim had been probated as a seventh-class claim within two years from the appointment of said Vincent M. Grewell as administrator, and upon which only twelve and one-half per cent had been paid, filed a petition in the county court of Fulton county for the appointment of Harvey H. Atherton, the defendant in error, as administrator de bonis non of the estate of William Hughes, and that the said Atherton was appointed such administrator, upon said petition, by said county court, and that immediately after his appointment a petition was filed by him, as such administrator de bonis non, to sell the said twenty-three acres to pay the debts of the estate of William Hughes, deceased, to which petition all the heirs of William Hughes, and other persons who claimed any interest in said twenty-three acres, were made parties. The court found, in its decree, who were creditors of the estate of William Hughes, deceased, and the amount due each creditor, and ordered said twenty-three acres sold to satisfy said claims and costs.

MARVIN T. ROBISON, for plaintiffs in error.

LUCIEN GRAY, for defendant in error.

Mr. JUSTICE HAND delivered the opinion of the court:

The first contention of the plaintiffs in error is that the defendant in error was not duly appointed administrator of the estate of William Hughes, deceased, and that he, for that reason, did not have the right to petition for the sale of said real estate, as it is said the estate of William Hughes, deceased, had been settled by the original administrator. We do not agree with this contention. If claims against said estate remained unpaid and there was real estate belonging to said estate which was (now that the widow was dead) liable to sale by the administrator of William Hughes, deceased, to pay debts, the court would have been authorized to appoint an administrator de bonis non. The approval of the report of Vincent M. Grewell as administrator of the estate of William Hughes, deceased, did not work his discharge as administrator or settle said estate, (Blanchard v. Williamson, 70 Ill. 647; Cutright v. Stanford, 81 id. 240; Sutherland v. Harrison, 86 id. 363; Diversey v. Johnson, 93 id. 547; Starr v. Willoughby, 218 id. 485; Reizer v. Mertz, 223 id. 555;) and had he been living at the date of the death of the widow and there were unpaid claims which had been probated against said estate, it would have been his duty to have obtained an order of court and sold said twenty-three acres and applied the proceeds in satisfaction of the probated claims against said estate, and as Vincent M. Grewell was dead and the estate remained unsettled, it was the duty of the county court of Fulton county, wherein said estate was pending, upon the petition of a creditor, to appoint an administrator de bonis non of the estate of William Hughes, deceased, to complete the settlement of said estate if there existed unpaid claims which had been probated against such estate. It has been held in a number of cases that when the widow of a decedent is in possession of premises as a homestead which do not exceed in value

$1000, the premises cannot be sold to pay debts until the termination of the homestead estate, and that the holder of unsatisfied claims may wait until the homestead estate is extinguished before applying for a sale of the property; and such property has been sold by order of court to pay debts when more than twenty years have elapsed since the claims were allowed. Hartman v. Schultz, 101 Ill. 437; Oettinger v. Specht, 162 id. 179; Mueller v. Conrad, 178 id. 276; Hanna v. Palmer, 194 id. 41.

It is next contended that the evidence shows the premises in controversy had increased in value and had been worth more than $1000 for several years prior to the death of Hannah Hughes, and by reason of those facts the creditors are said to be barred of the right to enforce their claims against said premises in excess of $1000. It is clear at the time of the death of William Hughes said twentythree acres were not worth $1000, and at the time of the sale of the remainder of the land said premises, by some arrangement with the widow, were set off to her as her homestead and dower in the lands of her deceased husband. That arrangement was doubtless satisfactory to her and to all parties in interest, as it was not questioned during her lifetime and she remained in possession of said premises until her death. The fact that the land increased in value and ultimately became worth more than $1000 we do not think required the creditors to proceed, prior to the death of the widow, to sell the excess over $1000 in value of said land or lose their right to enforce their claims against such excess on the death of the widow. If that were the law, in case the value of lands covered by a homestead estate was advancing rapidly, numerous sales might be required of portions of the property prior to the extinguishment of the homestead estate, the result of which would be to defeat the purposes of the rule which exempts the fee from being sold from under the homestead to pay debts until the homestead estate is extinguished. In the late case of Garwood

v. Garwood, 244 Ill. 580, it was held that the right of homestead under the present statute is an estate in land, and where the homestead boundaries have once been fixed the estate is not affected by the enhancement or the depreciation of the land; that when the homestead occupied by the deceased at his death is of less value than $1000 it is not necessary that it be set off and assigned to the widow to entitle her to hold it against the heirs or creditors as a homestead. While the boundaries of the homestead in the lands of William Hughes were not fixed by order of court, the particular tract selected by William Hughes as his homestead, and which continued to be occupied by the widow as her homestead after his death, was severed from the balance of the eighty of which it formed a part, by a public highway, and was worth less at the date of the husband's death than $1000. No allotment or assignment was therefore necessary. In Kenley v. Bryan, 110 Ill. 652, it was held that if, because the land assigned had increased in value, a new assignment may be had to reduce the quantity, then, when the land had depreciated in value, the same reason would require a new assignment to increase the quantity, and hence no re-assignment could be had.

It is also contended that the claimants are barred of their right to insist on said twenty-three acres being sold to pay their claims on the ground that they did not act with sufficient promptness upon the death of Hannah Hughes. In Frier v. Lowe, 232 Ill. 622, the widow died in 1898, an administrator de bonis non was appointed in 1900, and the petition for an order of sale was filed in 1902 and a sale was ordered. In disposing of the contention that the claimants were barred by laches, it was said no inflexible rule could be adopted by the courts fixing a time, after the extinguishment of the homestead estate, in which an application to sell real estate to pay debts must be made but that each case must be largely controlled by its own circumstances. In this case about seven months intervened be

tween the date of the death of the widow and the date of the filing of the petition by the administrator de bonis non for an order of sale. The records of the county court showed a large amount of probated claims against the estate of William Hughes, deceased, remained unpaid, and the land records of Fulton county showed the title to said twenty-three acres was in the name of William Hughes at the time of his death, and the purchasers of said premises took title thereto from the heirs of William Hughes, one purchaser being a son and the other a son-in-law of William Hughes. The claimants, subsequent to the death of Hannah Hughes, had done nothing to mislead the purchasers or to lead them into the belief that they did not intend to enforce their claims against said premises. In view of the decision announced in the Frier case and other kindred cases, we do not see how it can be held that the claimants were estopped, by a delay of seven months alone, to enforce their claims against said real estate.

It is further contended that the court erred in its determination of the claims which were entitled to be enforced against the real estate sought to be sold. These claims may logically be divided into three classes: First, the claims which were probated on the adjustment day and were adjudicated upon in the first proceeding to sell real estate to pay debts; second, the claims which were filed subsequent to the adjustment day but were allowed within two years from the day upon which the original administrator was appointed; and third, the two mortgages, aggregating the sum of $2139.15, which were paid by the original administrator out of the proceeds of the sale of the real estate without any order of court but which were included in his report and for which he was given credit on the approval of that report.

As to the first class, which aggregate the sum of $1578.10, less a dividend of twelve and one-half per cent, the adjudication upon the first application for the sale of