real estate is conclusive in this proceeding. In Judd v. Ross, 146 Ill. 40, in speaking of claims which were before the court on a former application, the court, on page 49, said: "The former proceeding was * * * between the same parties. The claims involved in that case and in this are the same. Their validity was passed upon and determined. * **The question of the validity of the claims is therefore res judicata."

As to the second class of claims, which were four in number, one in favor of Phippin for $432.35, one in favor of Marshall for $1075.75, one in favor of Ewing for $605.50 and one in favor of Hellyer for $105.50, and which aggregate $2219.10, they were filed subsequent to the adjustment day but within the two years allowed for the presentation of claims and after the first order of sale of said real estate was entered. As to these claims the record does not show that a summons was issued and served upon the administrator or that he entered his appearance, and the record of the county court showing the allowance of these several claims is nothing more than such a memorandum as the judge of that court might well have made upon his docket from which the clerk of that court should subsequently have written up judgments, and does not, in law, amount to judgments upon the said claims. They are all substantially in the following form: "August 19, 1880; George Phippin vs. Estate Wm. Hughes, dec'd; allowed seventh class; $432.35." While a claim regularly probated against an estate is binding upon the administrator and heirs as against personal estate, on the application of an administrator to sell real estate the allowance of a claim in a case where the court has jurisdiction and where the claim has been regularly allowed is only prima facie evidence of the validity of such claim against the heir. (Stone v. Wood, 16 Ill. 177; Hopkins v. McCann, 19 id. 113; Mason v. Bair, 33 id. 194; Rosenthal v. Renick, 44 id. 202; Goeppner v. Leitzelmann, 98 id. 409.) Section 61

of the Administration act provides: "Whoever has a claim against an estate, and fails to present the same for adjustment at the term of court selected by the executor or administrator, may file a copy thereof with the clerk of the court; whereupon, unless the executor or administrator will waive the issuing of process, the clerk shall issue a summons, directed to the sheriff of the county, requiring such executor or administrator to appear and defend such claim at a term of the court therein specified, which summons, when served, shall be sufficient notice to the executor or administrator of the presentation of such claim." In Hales v. Holland, 92 Ill. 494, it was held that when a claim against an estate is presented to the county court for allowance after the time appointed by the executor or administrator for the adjustment of claims without having given notice thereof to the personal representative, as required by the statute, or the personal representative has not appeared and waived notice, the court will have no jurisdiction of the person of the executor or administrator, and any order made by the court relating to the claim without such jurisdiction will be a mere nullity and may be questioned even in a collateral proceeding. An application to sell real estate to pay debts can only be sustained when it appears that there are existing debts against the estate, and where, as here, the administrator relies upon judgments of the county court rendered upon claims filed after adjustment day to show the existence of such indebtedness, we take it that the judgments produced should be of a character which show, upon their face, that the county court had jurisdiction to render such judgments. This is not a collateral proceeding as against the heirs, and when it is made to appear from the records of the county court, as it does here, that the claims in part relied upon as the basis for an order of sale of real estate were presented subsequent to the day fixed by the administrator for the adjustment of claims, and it does not appear from the record that

the administrator was before the court by service of summons or by appearance at the time the claims were allowed, and a regular judgment has not been rendered upon the claims, the prima facie case which is ordinarily made by the production of a judgment allowing a claim against the heir is not established.

The third class is based upon two mortgages which were liens upon the real estate of William Hughes which was sold by the original administrator and which were paid by such administrator out of the proceeds arising from the sale of such real estate, apparently upon his own motion. The record of that proceeding, which is incorporated in this record, is entirely silent as to these mortgages. At the time of the first administrator's sale the county court was without power to order said real estate sold disencumbered of said mortgages. The presumption, therefore, is, that when said administrator sold said real estate he only sold the interest of William Hughes therein and that he received the proceeds of said sale for the equity of William Hughes' estate in said premises. He, therefore, had no right to appropriate a part of the proceeds of said sale to satisfy said mortgage indebtedness. The law is well settled that when an administrator has in his hands assets of his decedent arising from personal property or from the sale of real estate sufficient to pay the indebtedness of the estate, and he commits the devastavit or through his negligence or mismanagement of the estate the fund is lost, the heir may defeat, by reason of these facts, further resort to the sale of real estate to make good such loss, but the remedy of the creditors is against the administrator upon his bond. (Woerner's Am. Law of Administration, sec. 470, and cases there cited.)

It is urged, however, that the county court, after the original administrator had paid said mortgage indebtedness, approved the report in which said administrator took credit for the amount paid in satisfaction of said mort

gages. The approval of the report wherein the administrator took credit for amounts paid out upon claims which were not properly allowable against said estate would not bind the heir upon subsequent application to sell real estate to pay debts. Roberts v. Flatt, 142 Ill. 485.

The defendant in error relies upon Millard v. Harris, 119 Ill. 185, as sustaining the position that the original administrator had the right to pay and satisfy said mortgage indebtedness out of the proceeds of said sale. In that case an executor, who was given power to sell real estate to pay debts, sold the real estate at public sale. He stated to the bidders that the premises were encumbered but that the land was sold free and clear of encumbrances, and, after the sale, from the proceeds of the sale he paid the encumbrances upon the land. It was held, upon a final accounting, that the executor should only be charged with the net amount which was realized from the sale. That case differs from the case at bar in that the sale made by the original administrator was made by order of court. No representations, so far as this record shows, were made at the sale that the mortgages would be paid from the proceeds of the sale, and the administrator was only authorized to sell the interest of deceased in the land.

From a careful examination of this record we have reached the conclusion that the claims of Phippin, Marshall, Ewing and Hellyer were not proper claims upon which to base an order of sale of real estate to pay debts, and that the mortgage indebtedness, aggregating $2139.15, was improperly paid by the original administrator, and had the original administrator used the money in his hands in the payment of the debts which were properly allowed against the estate of William Hughes, deceased, they would have all been paid and satisfied without resorting to the sale of real estate now sought to be sold.

As there are no debts shown to exist against the estate of William Hughes, deceased, which real estate can lawfully

be sold to pay, the petition of the administrator de bonis non cannot be sustained.

The decree of the circuit court and the judgment of the Appellate Court will be reversed and the cause remanded to the circuit court, with directions to dismiss the petition. Reversed and remanded, with directions.

JOHN A. CARLOCK, Conservator, Plaintiff in Error, vs. W. B. CARLOCK, Defendant in Error.

Opinion filed February 25, 1911-Rehearing denied April 6, 1911.

1. DEEDS―mere existence of fiduciary relation does not justify setting aside deeds. The existence of a fiduciary relation between the grantor and grantee is not, of itself, ground for setting aside the deeds, where they were not procured through improper means or their execution attended with any circumstance of oppression or overreaching on the part of the grantee.

2. SAME when deeds will not be set aside for want of capacity to make them. Deeds will not be set aside, in equity, upon the ground that the grantor was without capacity to make them, where the evidence shows that while the grantor was not as strong, mentally, as the average person, he was competent to and did transact the usual and ordinary business of a farmer, buying and selling personal property and borrowing money, and on several occasions testifying in court.

3. LACHES-right to relief, in equity, is not dependent upon the lapse of any fixed period of time. Where it is necessary to prevent fraud or great hardship, courts of equity will grant relief even after the Statute of Limitations applicable to actions at law has run; but in other cases, in order to accomplish the proper result, relief, in equity, may be denied though the period of limitation for actions at law has not expired.

4. SAME when relief by way of setting aside deeds is properly denied. Relief, by way of setting aside deeds, is properly denied where the evidence establishes that the grantor and grantee were brothers; that the grantor was involved in domestic and financial difficulties and required the aid of the grantee, who, as business adviser and attorney, assisted in settling such difficulties; that the consideration for the deeds was all the land was worth at that time and that no fraud or imposition was practiced upon the gran