McCann, 19 Ill. 113; Rosenthal v. Renick, 44 Ill. 207; Moore v. Ellsworth, 51 III. 309; Johnson v. Gillett, 52 Ill. 358; McCoy v. Morrow, 18 Ill. 519; Bowles v. Rouse, 3 Gilm. 409; Stow v. Kimball, 28 Ill. 111; Morris v. Hogle, 37 l. 150; Moline W. P. Co. v. Webster, 26 Ill. 234; Sloan v. Graham, 85 Ill. 26; Kellogg v. Wilson, 89 Ill. 357.

107. Conveyances. 108. All such sales of real estate shall be made and conveyances executed for the same, by the executor or administrator applying for such order, and shall be valid and effectual against the heirs and devisees of such decedent, and all other persons claiming by, through or under him or them. In case of the death of the executor or administrator applying for an order of sale before conveyance is made, the administrator de bonis non shall proceed in the premises and make conveyance in the same manner as if he had originally applied for such order-which conveyance shall be good and valid.

[L. 1857, P..139, 89; R. S. 1845. P. 559, 8105; Harris v. Lester, 80 II. 307; Doe v. Hileman, i Scam. 323; Baker v. Bradsby, 23 Ill. 632; Thorp v. McCullum, 1 Gilm. 625; Wardwell v McDowell, 31 Ill. 375; Moore v. Chandler, 59 I 466; Hobson v. Ewan, 62 Ill. 149; Sloan v. Graham, 85 III. 26; Kellogg v. Wilson, 89 Ill. 357; Marshall v. Rose, 86 Ill. 374; Beebe v. Saulter, 87 Ill. 518; Whitman v. Fisher, 74 Ill. 148.

108. Sale-time of-notice - penalty-terms-return and confirmation. $109. No lands or tenements shall be sold by virtue of any such order of the county court, unless such sale is at public vendue, and between the hours of ten o'clock in the forenoon and five o'clock of the afternoon of the same day, nor unless the time, place and terms of holding such sale were previously published for the space of four weeks, by putting up notices thereof in at least four of the most public places in the county where such real estate shall be sold, and also by causing a similar notice thereof to be published four successive weeks prior to the sale, in some newspaper published in such county, or if there be no such newspaper then in such other newspaper in this State as the court shall direct, nor unless such real estate shall be described with common certainty in such notices. And if any executor or administrator, so ordered to make sale of any real estate, shall sell the same contrary to the provisions of this act, he shall forfeit and pay the sum of five hundred dollars, to be recovered by an action of debt, in the name of the People of the State of Illinois, for the use of any person interested, who may prosecute for the same; Provided, that no such offense shall affect the validity of such sale; And provided further, that such executor or administrator may sell the same on a credit of not less than six, nor more than twelve months, by taking notes, with good personal security and a mortgage, or sale mortgage, on the premises sold, to secure the payment of the purchase-money. It shall be the duty of the executor or administrator making such sale, on or before the first day of the next term of the court thereafter, to file in the office of the clerk of said court a complete report of said sale, giving a description of the premises sold, to whom, where, and upon what terms sold, and a general statement of the manner in which the terms of the decree were executed. Any person interested in the premises sold, [*124] and any creditor of the estate, may file exceptions to such report, and upon the hearing thereof the court may approve such report and confirm the sale, or disapprove the same and order the premises to be re-sold. [As amended by act approved April 7, 1875. In force July 1, 1875. R. 1845. P. 559, § 106; L. 1875, P. 1; 86 Ill. 374; Kellogg v. Wilson, 89 Ill. 357; Sloan v. Graham, 85

Ill. 26; Reynolds v. Wilson, 15 Ill. 394; Schnell v. City of Chicago, 38 Ill. 384; Miles v. Wheeler, 43 III. 126: Kruse v. Steffens, 47 Ill. 112; Lockwood v. Mills, 39 Ill. 602; Day v. Graham, 1 Gilm. 451; Ballance v. Loomis, 22 Ill. 85; Phelps v. Conover, 25 Ill. 309; Thornton v. Boyden, 31 Ill. 200; Walden v. Gridley, 36 III. 523; Goudy v. Hall, 36 Ill. 319; Guiteau v. Wisely, 47 Ill. 433: Fergus v Woodworth, 44 Ill. 374: _Ward v. Brewer, 19 Ill, 291; Young v. Dowling, 15 Ill. 481; Means v. Means, 42 Ill. 50: Hickenbotham v. Blackledge, 54 Ill. 316; Stow v. Kimball, 28 II 108; Cook v. City of Chicago, 57 Ill. 268; Moore v. Neil, 39 Ill. 263; Loyd v. Malone, 23 Ill. 43; Johnson v. Johnson, 30 Ill. 223; Clark v. Thompson, 47 11 25; Mayer v. McDougal, 47 Ill. 278; Spellman v. Dowse, 79 Ill. 66; Moffitt v. Moffitt, 69 Ill. 649; Williams v. Walker, 62 Ill. 517: Coat v. Coat, 63 Ill. 73; McCready v. Mier, 64 Ill. 496; Hobson v. Ewan, 62 Ill. 148; Bishop v. O'Conner, 69 Ill. 431; Bowen v. Bond, & Ill. 351; Allen v. Shepard, 87 III. 314; Marshall v. Rose, 86 Ill. 374.

109. Proceeds of sale. § 110. When real estate is sold, the money arising from such sale shall be received by the executor or administrator applying for the order to sell, and shall be assets in his hands for the payment of debts, and shall be applied in the same manner as assets arising from the sale of personal property.

[R. S. 1845, P. 559, § 110; Nolan v. Jackson, 16 Ill. 272.

110. Sale of land not fully paid for-completing purchase. §. In all cases where a decedent is seized of a legal or equitable title to real estate, the payment whereof has not been completed, and the estate of such decedent is unable to make complete payment therefor, with advantage to such estate, the administrator or executor may sell or dispose of such real estate upon the order of the county court, and the money arising from such sales shall be assets in the hands of such executor or administrator, as in other cases. But in all cases where the estate of any such decedent shall be solvent, and such lands as aforesaid may be paid for without prejudice to the creditors, heirs and devisees of the estate, the executor or administrator shall complete the payment for the same out of the proceeds of the personal property, in the name of the heirs or legal representatives of the decedent entitled thereto; and he shall be allowed a credit for the amount of such payments, and all reasonable expenses incurred in making the same, upon final settlement of such estate; Provided, that the provisions of this section shall, in nowise, interfere with the provisions of any last will or testament.

[R. S. 1845, P. 559, § 111; p. 560, § 112; Allen v. Shepard, 87 Ill. 314: Sloan v. Graham, 85 Ill. 26.

SETTLEMENT BY ADMINISTRATORS AND EXECUTORS. 111. Annual and final settlements-notice to heirs. $112. All executors and administrators shall exhibit accounts of their administration for settlement, to the county court from which the letters testamentary or of administration were obtained, at the first term thereof after the expiration of one year after the date of their letters, and in like manner every twelve months thereafter, or sooner, if required, until the duties of their administration are fully completed; Provided, that no final settlement shall be made and approved by the court, unless the heirs of the decedent have been notified thereof, in such manner as the court may direct. [R. S. 1845, P. 562, 123. See 88 145-156; People v. Hunter, 89 Ill. 392; Long v. Thompson, 60 Ill. 27; Housh v. People, 66 Ill. 180; Rucker v. Redmon, 67 Ill. 187; Morgan v. Morgan, 83 Ill. 196; Reynolds v. People, 55 Ill. 328; People v. Lott, 36 11. 447; Heward v. Slagle, 52 III. 336; Wingate v. Pool, 25 Ill. 121; Rowan v. Kirkpatrick, 14 Ill. 1; Frame v. Frame, 16 Ill. 158; Crain v. Kennedy, 85 Ill. 340; Sutherland v. Harrison, 86 Ill. 363; Bucher v. Bucher, 86 Ill. 377.

112. Distribution. 113. Upon every such settlement of the accounts of an executor or administrator, the court shall ascertain the whole amount of moneys and assets belonging to the estate of the deceased, which have come into the hands of such executor or adminis.. trator, and the whole amount of debts established against such estate; and if there is not sufficient to pay the whole of the debts, the moneys aforesaid shall be apportioned among the several creditors pro rata, according to their several rights, as established by this act; and thereupon the court shall order such executor or administrator to pay the claims which have been allowed by the court, according to such apportionments. And the court, upon every settlement, shall proceed in like manner until all the debts are paid, or the assets exhausted.

[R. S. 1845, P. 562, 124; Bucher v. Bucher, 86 Ill. 377; Stillman v. Young, 16 III. 318; Reynolds v. People, 55 Ill. 328.

113. Settlements enforced-contempts-interest on assets. § 114. The county courts of this State shall enforce the settlements of estates within the time prescribed by law, and upon the failure of an executor or administrator to make settlement at the next term of the court after the expiration of said time, the court shall order a citation to issue to the sheriff of the county where the executor or administrator resides, or may be found, requiring said executor or administrator to appear at the next term of the court and make settlement of the estate, or show cause why the same is not done; and if an executor or administrator fails to appear at the time required by such citation, the court shall order an attachment requiring the sheriff of the county where the executor or administrator resides, or may be found, to bring the body [*125] of said executor or administrator before the court; and upon a failure of an administrator or executor to make settlement under the order of the court after having been so attached, he may be dealt with as for contempt, and shall be forthwith removed by the court, and some discreet person appointed in his stead; the costs of such citation or attachment to be paid by the delinquent executor or administrator, and the court shall enter a judgment therefor, and a fee bill may issue thereon. All moneys, bonds, notes and credits which any administrator or executor may have in his possession or control as property or assets of the estate, at a period of two years and six months from the date of his letters testamentary or of administration, shall bear interest, and the executor or administrator shall be charged interest thereon from said period at the rate of ten per cent, or after two years and six months from any subsequent time that he may have discovered and received the same, unless good cause is shown to the court why such should not be taxed.

[L. 1859, p. 95, § 10; R. S. 1845, §§ 126 and 139; Crain v. Kennedy, 85 Ill. 340; Piggott v. Ramey, 1 Scam. 145; Reynolds v. People. 55 Ill. 331; Ralston v. Wood, 15 Ill. 159: Gilbert v. Guptill, 34 Ill. 140; Ammons v. People, 11 Ill 6; Townsend v. Radcliffe, 44 Ill. 446; Frelard v. Dazey, 25 Ill. 296; Lynch v. Rotan, 39 Ill. 19; Hough v. Harvey, 71 Ill. 73.

114. Failure to pay over. 115. If any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the county court, law


fully made, within thirty days after demand made for such moneys or dividend, the court, upon application, may attach such delinquent executor or administrator, and may cause him to be imprisoned until he shall comply with the order aforesaid, or until such delinquent is discharged by due course of law; and moreover, such failure or refusal on the part of such executor or administrator shall be deemed and taken in law to amount to a devastavit, and an action upon such executor's or administrator's bond, and against his securities, may be forthwith instituted and maintained; and the failure aforesaid to pay such moneys or dividend shall be a sufficient breach to authorize a recovery thereon.

[R. S. 1845, P. 562, § 126; People v. Admire, 39 Ill. 251; Von Kettler v. Johnson, 57 Ill. 109; Tucker v. People, 87 ill 79; Crain v. Kennedy, 85 III. 340.

115. Payment of legacies. § 116. Whenever it shall appear that there are sufficient assets to satisfy all demands against the estate, the court shall order the payment of all·legacies mentioned in the will of the testator, the specific legacies being the first to be satisfied. [R. S. 1845, p. 563, § 127.

116. Bond from legatees, etc. § 117. Executors and administrators shall not be compelled to pay legatees or distributees until bond and security is given by such legatees or distributees to refund the due proportion of any debt which may afterward appear against the estate, and the costs attending the recovery thereof; such bond shall be made payable to such executor or administrator, and shall be for his indemnity and filed in the court.

[R. S. 1845, P. 563, § 129; Piggott v. Ramey, 1 Scam, 147: Wisdom v. Becker, 52 Ill. 342 Shelburn v. Robinson, 3 Gilm. 597; People v. Admire, 39 III. 252; Cagney v. O'Brien, 83 Ill. 74.

117. Refunding by legatees, etc. § 118. When, at any time after the payment of legacies or distributive shares, it shall be necessary that the same or any part thereof be refunded for the payment of debts, the county court, on application made, shall apportion the same among the several legatees or distributees according to the amount received by them, except the specific legacies, which shall not be required to be refunded, unless the residue is insufficient to satisfy such debts; and if any distributee or legatee refuses to refund according to the order of the court, within sixty days thereafter, and upon demand made, such a refusal shall be deemed a breach of his bond given to the executor and administrator as aforesaid, and an action may be instituted thereon for the use of the party entitled thereto; and in all cases where there is no bond, an action of debt may be maintained against such distributee or legatee, and the order of the court shall be evidence of the amount duc.

[R. S. 1845, P. 563, § 130; Weir v. People, 78 Ill. 192.

118. Suits between executors, etc. 119. Where there are two or more executors or administrators of an estate, and any one of them takes all or a greater part of such estate and refuses to pay the debts of the decedent, or refuses to account with the other executor or administrator, in such case the executor or administrator so aggrieved

may have his action of account or suit in equity against such delinquent executor or administrator, and recover such proportionate share of said estate as shall belong to him; and every executor, being a residuary [*126] legatee, may have an action of account or suit in equity against his co-executor or co-executors, and recover his part of the estate in his or their hands. Any other legatee may have the like remedy against the executors; Provided, that before any action shall be commenced for legacies as aforesaid, the court shall order them to be paid. [R. S 1845, P. 563. § 131; Marsh v. People, 15 Ill. 284; Mahar v. O'Hara, 4 Gilm. 424.

MORTGAGE AND LEASE OF REAL ESTATE BY EXECUTORS. 119. When and how made. § 120. Real estate may be mortgaged in fee or for a term of years, or leased by executors; Provided, that the term of such lease, or the time of the maturity of the indebtedness secured by such mortgage, shall not be extended beyond the time when the heirs entitled to such estate shall attain the age of twenty-one years, if a male, or eighteen years, if a female; And provided, also, that before any mortgage or lease shall be made, the executors shall petition the county court for an order authorizing such mortgage or lease to be made, and which the court may grant, if the interests of the estate may require it; Provided, further, that the executor making application as aforesaid, upon obtaining such order, shall enter into bond, with good security, faithfully to apply the moneys to be raised upon such mortgage or lease, to the payment of the debts of the testator; and all moneys so raised shall be assets in the hands of such executor for the payment of debts, and shall be subject to the order of the court in the same manner as other assets.

[L. 1869, p. 372, § 1; R. S. 1845, P. 564, 8135; Stone v. Wood, 16 Ill. 177; Willenborg v. Murphy, 36 11. 344; White v. Walker, 31 Ill. 436; Page v. Davidson, 22 Ill. 112; Merritt v. Simpson, 41 Ill. 391; Webster v. Conley, 46 III. 14.

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120. Foreclosures. § 121. Foreclosures of such mortgages shall only be made by petition to the county court of the county in which the premises, or a major part thereof, are situated; and any sale made by virtue of any order or decree of foreclosure may, at any time before confirmation, be set aside by the court for inadequacy of price or other good cause, and shall not be binding upon the executor until confirmed by the court. [L. 1869, p. 372, § 2.

121. No strict foreclosure. § 122. No decree of strict foreclosure shall be made upon any such mortgage, but redemption shall be allowed as is provided by law in cases of sales under executions issued upon common-law judgments. [L. 1869, p. 372, § 3.


122. What actions. 123. In addition to the actions which survive by the common law, the following shall also survive: Actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property,

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