UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A PRACTICAL TRHATISE UPON THE Jurisdiction of, and Practice in, THE County and Probate Courts OF ILLINOIS, EMBRACING A Collation of Statutes and Authorities UPON THE SEITLEMENT OF ESTATES OF DECEASED PERSONS; CORRELATIVE nir.A TIONS OF GUARDIAN AND WARD; THE ADOPTION OF CHILDHEN INQUl=!IT10NS OF LUNACY; APPOINTMENT AND DUTY OF CONSERVATORS OF LUNATICS AND DISTRACTED PERSONS; ASSIGNMENT FOR THE BENEFIT OF CREDITORS; BASTARDY, AND TRIAL OF THE RIGHT OF PilOPERTY; CON TESTED ELECTIONS, BY William C. Jones and Joseph 0. Cunningham, Of the Illinois Bar. SECOND EDITION. CHICAGO: T. H. FLOOD & CO., Publishers. 1892. T72S6f 1892 Entered, according to Act of Congress, in the year 1<^8?, by THE ILLINOIS PRINTING COMPANY, lu the OlEce of the Libraiicu of Cou^nsss, at 'VVasliii^gton. Entered, according to Act of Congress, in the year 1802, by T. H. FLf OD & CO., lu the Office of tlie Libr.irian of Congress, at Washington. II l.INOTS PIUNTING CO., mlNTKES, DANVILLE, ILLINOI.S. PREFACE TO THE FIRST EDITION. Ill offering to the profession this work upon Practice in the County Courts, it is proper for us to say, that we have aimed to bring togctlier in an accurate and concise form the Statutes and decisions of our own State regulating such practice, and also such decisions of other states as we have deemed applicable ; added to which are various forms, either adopted from ap[)roved precedents or framed by ourselves, which we hope will be found useful and suggestive in practice. Inaccuracies and redundancies will undoubtedly be found to ex'.it in the work; yet, we trust, not to an extent which will inter- fere with its practical value to the profession and class of business men whom we have aimed to assist. In citing adjudged cases we have uniformly adopted the language employed by the jurist who delivered the opinion, where to do so would not interfere with the brevity of language with which we have endeavored to clothe the principles set forth, blending the work of the judicial writers together where possible — in all cases citing our authority. If our generalizations are deemed insufficient the cases cited may be consulted for greater accuracy. The sul)jects treated comprise almost the entire jurisdiction cognizable in the County Courts of Illinois, (its common law jurisdiction excepted,) as Estates of Decedents, testate and intestate, Guardian and Ward, Insanity, Assignments, voluntary and invol- untary. Adoption of Children, Trial of the Right of Property, Bastardy, Contested Elections and Naturalization of Foreigners. It would be too much to claim for the work that it is a complete code under these variou; h -ads, and that the student and practitioner need look no farther, for our experience with the best text books 776783 IV PREFACE. and works of practice found in the libraries of the profession, proves that sucli a claim for any book is too extravagant. It is, perhaps, not too much to say, that in dealing with human affairs, as they develope themselves under these phases of life — often of the most delicate nature — the practitioner will here find precedents and principles cited, which, if followed, will insure the successful consummation of cases in his hands, and avoid that confusion which frequently delays or defeats heirs from coming into the possession of the fortunes justly theirs, and renders the administration of the estates of deceased persons, of infants, of lunatics, and of bankrupts, a system of robbery under the forms of law. We have been materially assisted by timely and valuable suggestions from several of the distinguished gentlemen who do now, and have formerly occupied the position of Judge of the County Court, as well as from other experienced lawyers of the State, for Avhich we hereby make our grateful acknowledgments. In the preparation of the various chapters, our work has been about equally divided. The design of the book is that of our Mr. J., while our Mr. C. has had the entire labor of superintending the publication and arrangement of tlie work, and hereby assumes the responsibility of any imperfections that may be found in the book, due to such agency. J. O. CUNNINGHAM, W. C. JONES, Urbana, 111, Ilobinson, 111, Danville^ III.^ January, 1883. PREFACE TO THE REVISED EDITION. Tlic favor with wliich the first edition of tliis work was received by the profession has been an incentive to the authors to prepare a second and revised one, bringing citations therein of the decisions and statutes of Illinois down to date. Not only have our references to the decisions and statutes been brought down to the present time, but in addition thereto many new and valuable forms liave been added, making the work in every respect complete. Our Mr. Jones desires to acknowledge the assistance rendered iiim in the revision of that part of the work assigned to him, of liis law partner, Mr. E. E. Newlin, who has aided materially in the revision of the work. The authors desire here to return thanks to the profession, who have so generously supported the work by its purchase and use, and trust the revised edition may prove equally acceptable, and receive equal favor with the first. THE AUTHORS. TABLE OF CONTENTS. I'-A.ieT I. PAGE. CHAPTER I. 3 County Courts of Illinois, Constitutional provisions — Jurisdiction general— Force of their de- crees—Not to be questioned collaterally — Statutory powers — ^Juris- diction shared by chancery courts— Jurisdiction continues — May adjudicate upon equitable claims — May enforce theirorders— Power to construe will — Probate courts — Sheriff shall attend sessions. CHAPTER II. 8 (; ranting and Revoking Letters, Administration under English laws — What court may appoint — Right of administration under our statute — Next of kin — Statute im jerative- Who should not be appointed — When letters may be granted to others than the next of kin — Creditor must be actual — Administration unnecessary — Preference between claimants — Projf of death necessary — Grant may be delayed — Oath of admin- istrator — Oath of executor — Act of granting ministerial — Appoint- ment cannot be questioned collaterally — .Acts of one irregularly appointed not void — Letters void in the beginning remain so — Public administrators — Duties of public administrator — Adminis- trator to collect — Bond of same — Limitation on appointment of administrator — Revocation of letters and resignation — Resignation and costs — When action void — Who may administer de botiis uon — Suits against former administrator. CHAPTER III. 24 Administrators' and Executors' Bonds, Bond of executors ; form — When no security required — Bond of ad^ ministrator — Requiring other security — On application of sureties — Form of new bonds — Two bonds may be taken — Giving new bond under Sec. 33 releases old securities— Giving new bond under Sec. 32 does not release old securities — Removal for failure to give new bond — Death of sole executor— Death or disqualilication of execu- tor or administrator — Court may take one or more bonds — Court shall examine bonds at January and July terms —Record to be kept — Summons of principals in bonds— When new bond to be required- Failure to give new bond; removal — Liability under new bonds — When not binding on sureties— Z^fZiw/az/zV— Liability for taking in- solvent security — For releasing a debt — For removing property from the Gtate— For exhibiting an untrue account— For failure to file inveo^ory within tkree months— For suffering judgment on claim baf?fed by statute — For failure to account for debt due from y[\l TABL1-: OF CONTEXTS. Administrators' and Executors' HonAs— Continued. himself— For money recovered for causing death— One administra- tor liable for his co-administrator— As trustee or executor— Extent of liability— Administrator must use diligence ; money stolen— Must redeem incumbered property-Must pay to distributees— Of the demand— Suit against part or all of obligors— Sureties liable only for assets of estate— Voluntary bond— Surety not in fiduciary rela- tion to estate— F"ormer bond; liability to administrator de doms wow— Security for ctl— Jurisdiction of a court ol chancery over remedies on bond r-Form of judgment- Action of account may be maintained. ^ CHAPTER IV. 44 Duties and TJabilitics of Executors and Administrators, Duties prescribed bv law— Grant of letters relates back— Duty of person named as executor in will— Power before probate of will- Administrator an officer— Death of part of executors— Power of one of several executors— Power of administrator with the will an- nexed—Succeeds to title to personalty— Liable for such as by dili- crence may be received— Courts to hold them liable for abuse ot trust but not upon slight grounds- For loss by fire— Should collect forei-^ni debts— Must not continue a partnership relation- Power over real estate— When ejectment may be maintained— Rents- Must redeem real estate— Liability to third parties— As gar- nishee— Can not loan the money of the estate— Not liable tor costs— Acting as administrator and guardian— Can not bind heirs by his action— Can not buy an interest in the estate-Good faith protects him— May compound a suit for negligence— Can not be sued with another— When not liable for interest— Must account lor profits— May receive real estate on debts— Contracts of decedent may be performed— May assign note due deceased— May sell per- sonal property— Liable for fraud— Not cliargeable for rnistake— Administrator to collect -His powers— Suits by him— When his powers cease— Administrator de son tort; liability— One acting honestly with him— Court no power to compel an account— How he may discharge himself— Widow not liable as administrator de S071 /or/— Title to property— Suits between executors. CHAPTER V. 59 Inventories and Appraisement, Inventory to be filed— How prepared— Additional inventory— In- ventory after discharge— A protection and guide— Should embrace all property of the estate— Appraisement bill ; form— Oath of ap- praisers— Compensation— Return into court— Court may set aside- Inventories, etc.; evidence— Further appraisal — Executors, etc., chargeable— Assets not exceeding widow's allowance. TABLE OF CONTENTS. jx PAGE. CHAPTER VI. 64 Collection and Disposition of Assets, Property of deceased bound for debts— Duty and power to collect assets— Property fraudulently transferred— Actions which survive to the executor or administrator— Administrators and executors must sue and be sued jointly— Wiiere plaintiff or defendant dies; suggestion and substitution^Concealed goods; collection of the same— Jurisdiction of chancery— Books of account— What are per- sonal assets; dividends — Suits by executors and administrators- Title to property vests in legal representative— Actions of cove- nant—Widow; when liable— Practice— Suit by administrator de bonis noil — Set-off not allowed — Payment to an acting administra- tor — Payment by administrator by mistake — ^Personal estate first liable for debts— Desperate claims— Avails of desperate claims- Claims may be compounded— Removal of property by executor or administrator— Sale of personal jiroperty — Rule o\ caveat emptor — Who may not purchase— Growing crops— Sale— Return of sale bill. CHAPTER VII. 81 Partnership Estates, Partnership terminated by death of one partner — Must be authority in the will to continue business after such dissolution— Statutory partnership —Proceedings on dissolution - Surviving partner to file inventory — In what county — Survivor continues in possession — Waste by him — Effects must first pay partnershir) debts — Statute declaratory — Account — Survivor may purchase— When partnership to be settled — Power of administrator to eu'^rce settlement — Final uoulement — No compensation to survivor — Real estate of partner- ship. CHAPTER VIII. . 88 Award to Widow and Children, Widow's award — Not affected by renunciation— Allowance to chil- dren — Policy of the law— Right to award becomes fixed upon the death of the husband — Right can not be cut off by will — Nor by an ante nuptial contract — Widow not justified in seizing and holding money to satisfy claim — Widow's claim need not be presented as other claims — None but widows of bona fide residents entitled to it — Definition of " family " — Practice— Power of court over award — Title vests in widow — Widow bound by her relinquishment — Lien upon real estate. CHAPTER IX. 96 Claims ag'ainst Estates, Notice and adjustment— What is a claim — Claim for monument for de- ceased — Partnership debts — Court may entertain equitable claims — Funeral expenses — Claim of former executor or adminstrator — For- feiture enforcible as a claim — Taxes — How and when claims should be presented — Claim presented after two years — Claims presented after administration is completed— Proceedings — Continuance — Costs — Oath of claimant — ^Judgment as evidence — Offset , judg- ment for estate — Claims not due — Claimant may choose his forum — How allowed— Can not be submitted to arbitration — Judgments bear interest — Defenses to claims ; duty of administrator — Defenses TABLE OF CONTENI^. PAGE. 96 Claims against Estates — Continued. to claims; limitations — Practice; judgment cannot exceed the demand — Change of venue — ^Judgment conclusive — Demands of executor or administrater, how allowed — Insolvent estates — Fees to be charged. CHAPTER X. 116 Classification and Payment of Debts, Order of payment at common law— By statute— Order of classifica- tion— Conflict of statutes— Preferred claims— Classification may be changed — Payment of claims before allowance — Payment by mistake. CHAPTER XI. 122 Accounting-, Settlement and Distribution, Accounts; when to be made — Partial distributions — Form of ac- count — Account may be required at any time — Interest upon bal- ances due to the administrator — Assets to be charged — Adminis- trator, etc., to be allowed for attorneys' fees — Contingent fees not allowed — Expenses allowed — For board of minors — Costs of ad- ministration must be paid before distribution— Order approving accounts conclusive — Final settlement — Effect on claims — Chance- ry jurisdiction to effect settlements and open the same — Settlements to be enforced by county court — Ten per cent, interest— When ac- count should be rejected — Account for monument— Heirs not bound by judgments paid — Order of approval several as to each item of account — Appeal from an order rejecting — Errors in account not evidence of fraud — Failure to pay over as ordered — Enforce- ment of orders by imprisonment — Duration of imprisonment — Suit cannot be maintained until order of distribution— Payment of leg- acies — Bond by legatees — When bond should be taken— Citation and proceedings thereunder — Court no power to render a money judgment— Refunding by legatees — What will bar claim for refund- ing — Suits between joint executors and administrators — Sureties not liable— One administrator or executor may have citation against his associate — Disposition of unclaimed estate — To be deposited — • How obtained by claimant — Compensation of executors, etc. — Ad- ditional allowances — Equitable principles to govern. CHAPTER XIT. 139 Descent and Distribution, Intestacy presumed— Rules of descent— Where will is renounced— Who are next of kin— Meaning of term " children"— Children of the half blood— What will bar distribution— Estate of deceased infant- Administrator must collect— Advancements— Value of real proper- ty advanced— Value of personal estate— Evidence of advancements must be written— Death of heir— Advancements do not affect wid- ow—When heirs mav have distribution— Illegitimate offspring- How legitimated— Rights before the statute— Bastards under the common law — Posthumous child— Heirs at law— Adopted chil- dren—Husband and wife— Ante nuptial contracts— Acceptance under will— Descent not defeated by naked trust— Where heir is indebted to estate— Equalizing legacies— Notice of final settlement and order of distribution — Law in force at time and place of death governs distribution — Debts and charges must be first paid— Order of court necessary — Distribution in kind — Escheats. TABLK OF (JOlS'TENT«. xi CHAPTER XIII. ""152 Sale of Real Estate to Fay Debts, Real estate ultimately liable— When it may be sold— Where execu- tor has exhausted his power in the will— Petition to the court • par- ties thereto— Proceedings coerced— Form of petition ; exhibit of estate— Parties to proceeding- under various statutes— Description of premises— Summons— Service of summons— Notice by publica- tion; contentsof notice— Afiidavit of non-residence; maybe made on belief— Where decree shows that notice was given— Parties must be before the court; want of jurisdiction— Practice; docketed as in other cases— Guardian ad litem; his duties— Hearing- of cause- Assignment ul Uuwer— Dower may De asbigneU lo-ctiier — Homestead -Sal« of -Land may be platted — Descrinti,,n of land in decree— Extent of sale— Power of court limited— Power to order sale judicial— Not a chancery proceeding— Administrator no power to remove incumbrance by proceedings in court— Heirs may interfere to prevent loss, but creditors can not— Jurisdiction of chancery courts to order sale of land— Decree can not be at- tacked—Defenses ; heirs may attack judgments— Time of payment- Limitations in absence of a statute— Sale, report and confirma- tion—Title of purchaser ; caveat emptor— Effect on sale of a revers- al of the decree— Forgery ; fraud; chancerv jurisdiction— Convey- ance under decree and sale— Proceeds of sale— Sale of land not fully paid for— Power to sell under a will. CHAPTER Xiy. 180 .Tills, Scope of the chapter — Origin of the testamentary power — Defini- tion—Who may make wills; what may be disposed of^How made and declared ; declaration of witnesses — What may be disposed of by will; may totally disinherit children — Probateof will ; custodian to produce it — Appeals; evidence on appeal — Custody of probated will — Issue of letters testamentary ; refusal of executor — Contesting wills in chancery — Wills proven without the state; admission to probate — Revocation; not revoked by words — Nuncupative wills — Lost will — What law governs bequests — Mortgage of real estate by executors ; effect of same — ^Construction of wills ; intention — Where land devised is sold by testator before death — Legacies charged upon real estate — When title vests — Against whom wills are fraudulent — Trustees to receive compensation. CHAPTER XV. 203 Foreign Executors and Administrators, Power of executors and administrators in other jurisdictions under the common law — Powers in this state of those holding authority from other states — Exceptions — Authority local — Authentication of letters — Certificate — How right to sue must be questioned — May sue out execution. CHAPTER XVI. 208 A.ppeals, Appeals from order rejecting claim — Who may take appeals, and how — Right extends to all cases ; exception — Condition of bond — What may be done upon appeal — Writ of error. Xll TABLE OF CONTEND. ZP^IE^T II. PAGE. CHAPTER I. 213 Of the various kinds of Guardians, Definition — Guardians by nature — Guardians b}' chancery — Guard- ians by statute — Guardians ad litc»i. CHAPTER II. 228 Appointment of Guardians, - _ Appointment ; jurisdiction — Nomination by the court ; jinisdiction — Testamentary guardians — Guardian's bond — Letters of [guardian- ship; form — Record of appointment — Review of the appointment. CHAPTER III. 245 The Inventory, Inventory. CHAPTER IV. 218 Powers, Duties and Liiahilitics of Guardians, Power in the management of his ward's estate — Power to appear for ward in suits — Power to lease his ward's real estate — Power to remove wards — Duty with respect to ward's property — Duty to loan the funds of his ward — Duty to educate liis ward — Liability for money received — Liability forward's property — Liability upon con- tracts — Liability for negligence. CHAPTER V. 264 Xlig-hts and Liahilities of the Ward, Rights in general— Right to disaffirm acts done and conflicts made during infancy — Right of action by and against ward — Right of ac- tion by ward against guardian — Rights of the infant as to home- stead—Rights of the ward as to settlements— Rigiits of the infant as to the doctrine of estoppel— Right of election by ward— Right to contract marriage— Liability for the debts of tlie ancestor— Liability of the infant for contracts— Liability of the infant for wrongs. CHAPTER VI. 283 Acconntin?^ by Guardian, Duty to render account — Sureties of guardian — Powers of the coun- ty court in regard to — Allowances on accounting — Commissions — Opening and reviewing settlements — Form of a guardian's settle- ment. TABLE OF CONTENT'S. xiii PAGE. CHAPTER VII. 298 Sale of Ward's Real Estate, Proceedings to sell real estate — Form of petition; when filed No- tice of application ; form; service— Practice; form of bond and de- cree — Notice and terms of sale ; form — Return ; sale approved ; title; form of guardian's report; deed— Proceeds ; accounting for ;' re-mvestment — Sale of real estate by non-resident guardian- Terms of sale — Deeds ; title— Bond for costs— The proceeding— Tiie petition— Jurisdiction— Special bond— Fixing time of sale- Notice of application — Purchaser at sale — Report of sale — Guard- ian's deed— Confirmation of sale— Purchaser need not see to the application of purchase mone}- — Rule oi caveat cm/ ior. CHAPTER VIII, 323 Mortg'ag-iiig- and Leasing- Real Estate of Ward, Statutory power — Petition ; forms — Foreclosures — No strict fore- closures — Forms used in foreclosure — Remarks — Leasing ward's real estate. CHAPTER IX. 332 Non-Resident Guardians, Non-resident guardians ; power to collect — Transfer of estate to non-resident guardians — Conditions — iManntn- of procedure; forms — Rules governing non-resident guardians. CHAPTER X. 3C9 Resig-nation of Guardians, Resignation of guardians ; forms — Rules. CHAPTER XL 3J2 Removal of Guardians, Power of court — Notice to guardian; petition, etc. — Successor in office — Rules governing the removal of guardians — Appeals. CHAPTER XII. 318 Rights and Lelsou, 72 HI., 564 196 Ames vs. Downing, 1 Bradf., 321 62 Amnions vs People, 11 111., 6 12G, 239, 348 Amoskeag Manf. Co. vs. Barnes, 49 N. H, 312 239 Anderson vs. Anderson, 42 Vt., 350 412 Ander.son vs Darbv, I Mott & M. (S.'C), 369 215 Anderson vs. Foster, 2 Bailey, 501 508 Anderson vs. Foulke, 2 Harris & Gill, 346 . . 318 Anderson vs. Gregg, 44 Miss., 170 149, 204 Anderson vs. Thompson, II Leigh ( Va.), 439 289 Andrews vs. Bemhardi, 87 111., 365 160 Andrews vs. Black, 43 lil , 256 188, 209 Andrews vs. Himneman, G Pick., 128 144 Andrews vs Jones, 10 A\a., 400 270 Autouidus vs. Walling, 4 N.J. Eq. (3 Green), 42 310 App vs. Dresl >ach, 2 Rawle, 287 42 Arenz vs. Reihle, 1 Scam., 340 5.8 Armistead vs. Bozman, llred. (X. C Eq.), 117 349 Armstrong vs. Armstrong, 1 Oregon, 207. . 150 Armstrong vs. Cooper, 11 111., 560 6 Armstrong vs. Lear, 12 Wheat., 169 252 Armstrong vs. WUl, 6 Ohio, 119 217 Armstrong vs. WaLkup, 12 Gratt. (Va.). 608. 290 Arnett vs. Arnett, 27 111., 247 ' 197, 198 Arnold vs. Brown, 24 Pick. (Mass.), 89 362 Amott vs. Friel, 50 lU., 174 42 Arthur's Appeal, 1 Grant (Pa.), 55 230 Asay vs. Allen, 124 lU, 391 4.'i3 Ashley vs. Martin, 50 Ala., 297 255 Ashulot E. E. vs. EUiott, 57 N. H., 397. .. . 360 Askew vs. Hudgens, 99 111., 468 137, 138 Atcheson vs. Robertson, 3 Rich. Eq., 132 136 Atiridge vs. Bilbngs, 57 III.. 489 72. 253, 290 Atkinson vs. 'Wlutehead, 66 N. C, 296.249, 256 Aurentz vs. Anderson, 4 Pittsb. (Pa.), 310. 411 Austin vs Charlestown Female Sem., 8 Met. (Mass ), 196. 223 Austin vs. Lamar, 23 Miss , 189 290 Ayers vs. Baumgarten, 15 111., 444 314, 317 Ayers vs. Clinelelter, 20 111., 465 16 Bacon vs. Taylor, Etrby (Conn.), 368 251 Badenhoof vs. Johnson, 11 Nev., 87 230 Rahe vs. Jones, 132 111 , 134 549 Bailey's Ex'rs vs. Staley, 5 Gill & Johnson, 432 171 Bailey vs. Bailey, 115 lU., 651 .'"..." .' 261 Bailey vs. Dilworth, 10 Smedes & M., 404 5, 51 . Bailey vs. Miller, 5 Iredell's Law, 444 56 Bailey vs. Rodgers, 1 Me. (1 GreenU.), 186. . 350 Baird vs. Chapman, 120 111., 537 101 Baker. Ex parte, 3 Humph. (Tenu.), 592. . 3:<7 Baker vs. Bradsby, 23 111., 632 |7J Baker vs. Brown, 18 111., 91 1(9, 2 9 Baker vs. Hunt, 40 111., 264 .'75 Baker vs. Lafitte, 4 Rich. (S. C. I tq., a'Jz. . 291 Baker vs. Ormsby, 4 Scam., 325 73, 2S3 Baker vs. Richards, 8 Sergt. & R , 12 25 i Baker vs. Roberts, 14 Ind., 552 499 Baker vs. Strahom, 33 111. Ap., 59 379 Baldwin vs. Allison, 4 Minn., 25 358 Balesvs. Elder, 118 111, 436 145, 150 Ballauce vs. Frisbie, 2Scam., 63 73, 207 Ballauce vs. Samuel, 3 Scam., 3o0 113 BaUard vs Spoor, 2 Cow. (N. Y.), 430 220 Ballew vs. Clark, 2 Ired. (N. t.) L., 23 ... 41K BaU vs. Bruce, 21 lU., 161 25ii Bank of Orleans vs. 'Torrey, 7 Hill (N. Y.), 260 3.58 Barbero vs. Thurmau, 49 111.. 284. 102 Barbour vs. Wbite, 37 111., 164 67 Barger vs. Hobbs, 67 lU., .592 142 Barker vs. Kuukel, 14 Legal News, 175 125 Baruaby vs. Barnaby, 1 Pick. (Mass.), 221. 'J72 Barnard vs. Barnard, 119 111., 92.5, 108,'.80, 378 Barnes vs. Brown, 32 Mich., 146 366 Barnes vs. Compton, 8 Gill (Md.), 391 2' 7 Barnes vs. Hardeman, 15 Texas, 366 309 Barnes vs. Hazelto , 50 111., 430 143, 265, 266, 267, 319 Barnes vs. Maring, 23 111. Ap., 68 8K Barnes vs. Powers, 12 lud., 341 345 Baniett vs. ChmchUl, 18 B. Mon., 387 .... 310 Biiruett vs. Monroe, 4 Dev. & B. (N. C.) L., 194 349 Baruett vs. W olf , 70 111. ,76 4, 5 Barney vs. Sanders, 16 How., 535 361 Barney vs Seeley, 38 Wis., 381 250, 252 Barnum vs. Gilpin, 27 Minn., 426 543 Bamum vs. Reed, 136 111., 3X8 69, 108 Barrett vs. ChurcluU, 18 B. Monroe, 387 ... . 310 Bart ell vs Baunian, 12 lU Ap , 450 50 Bartlett, Ex part'-, 4 Bradf. (N. Y.), 221 . . 252 Ba«sett vs. Abbott, 4 Gray (Mass ), 69 6(i3 Bassettvs Noble, 15 111. Ap., 360 114 Bates, In re., 118 111., 524 4.54 Bates vs. WoodruH, 123 111., 205 179 Battouvs Allen. I Halst. Ch., 99 149 Batsou vs. Mm-rall, 10 Hump., 301 114 Baxter vs. Costiu, 1 Biisb.,262 51 BeaU vs. Hilliarv, 1 Md., 186 34 Beals vs. Furbish, 19 Me., 496 499 BeardstowTi vs. Virginia, 76 111., 34.... 543, 557 Bearss vs. Montgomery, 46 Ind , .544 414 Beaubeiu vs. Cicotte, 12 Mich., 459 411 BedeU vs. Janey, 4 Gilm., 193 38 xviir. TABLE OF CASES CITED. Beebe vs. Saulter, 87 111., 518 168, 169 Beeler vs. Dunn, 3 Head (Tenn.), 87 287 BeelervB. Young, 1 Bibb , 519 289 Beller vs. .Jones, 22 Ark., 92 410, 418 Bell vs. People, 94 111., 230 42, 293, 350 Belton vs. Fisher, 44 lU , 32 84 Bendall vs. Bendall, 24 Ala., 21'5 101, 125 Bennett vs. Albei-t, 132 lU., 665 3i2 Bennett vs. Bradford, 132 111., -.'69 282 ISenuett vs. Byrne, 2 Barb. (N. Y ) Ch., 216. 230 liennett vs. Hanifln, 87 111 , 32 284, 285 ISenuett vs. State, Msrt. & Y. (Tenn.), 13 1. 421 Bennett vs. Whitman, 22 lU., 448 156, 167 Bensell vs. Chancellor, 5 Whart. (Pa.1, .371. 418 Benton vs. Pope, 5 Hump. (Teuu.), 392.267, '.:68 Berry vs. »• amilton, 12 B. Monroa, 191 16 Berry vs. Powell, 18 111.. 98 85 Berry vs. Young, 15 Texas, 369 309 Berryhill'B Appeal, 35 Pa. St., 245 3b7 Bice vs. Hall, 120 111., .597 182, 188 Bigelow vs. Bigelow, 4 Ohio, 138 7, 28, 34 Biggs vs. Postlewait, Breese, 154 33 Bingham vs. Maxcev, 15 111 , 295 79, 176 Bird vs. Bird, 21 Gratt. (Va.), 712 413 Birely's Heirs vs. Staley, 5C4m& Johns., 432 275 Bishop vs. Davenport, .58 111., 105.14', 143, 267 Bishop vs. O'Connor, 69 111., 432.172, 176, 275 Black vs. Hills, 36 111., 376 266 Black vs. Whital, 1 Stockton's Ch., 572 61 Blacklaws vs. Mihje, 82 111., 505 142, 145 Mairvs. Senuott, 134 lU., 78 4, 69 Blake vs. Pegram, 109 Jlass., 541 290 Blake vs. People, 80 lU., 11 133 Blakeney vs. Blakeney, 6 Porter, 109 66 Blauchard vs. Williamson, 70 111., 6u7 6, 60, l;)3, 108, 128, 129 Blauck vs. Pausch, 113 111., 60 518 Bland vs. Muncaster, 24 Miss., 62 175, 318 Blaukenship vs. Stout, 25 11'., 132 265 PI inkenstrip vs. Israel, 132 lU., 314 549 Blattner vs. Weis, 19 UK, 246 184 Blauvelt vs. Ackermau, 5 C. E Gr. Ch.,117. :^61 Blauvelt vs. Ackeruian, 20 N. J. Eq , 141 361 Bliss vs. Ferryman, 1 Scam.. 484 265, 266 liloilgett vs. Am. Nat. Bank (Oomi.), 14 Legal News, 112 82 Bloomer vs. Bloomer, 2 Bradf. Surr., 341. 215 Blow vs. Gage, 44 lU., 2i>8 448, 449, 45il Hoard of Supervisors vs. Keady, 34 111., 293. b35 Uochlest vs. McBride, 48 JIo., .5115 367 IJogert vs. Furman, 10 Paige, 466 72 lioud vs. Lockwood, 33 ill., 212 . .249, 2.54, 255, 256,258, 272, 284, 289, 29T BondvB. Kamsey, 89 111., 29 176 Boud vs. Zeigler, 1 Ga.. 324 79 Houham vs. People, H 2IU., 439. . . 42, 238, 239 BouueU vs. Holt,89 Ill.,71 203, V21, 273 Border vs. Murphv, 125 lU.. 577 174, 370 Boren vs. Smith, 47 111., 4-2 535 Bosler vs. Banks, 4 Pa. St., 32 75 Bostwick vs. Atkins, 3 Comst., .53 3 1 7 Bostwick vs. Skinner, 80 111 , 147 5, 156 BasweU vs. State, 63 Ala., 307 420 Botsford vs. O'Connor, 57 111., 72 146, 158, 159, 160, 174 Bowden vs. Bowden, 75 lU., 143 481, 482 Bowen vs. AUen, 113 lU., .53 2"0 Boweu vs. Boud, 80 111., 351 16(1, 175 Bowen vs. Parkhm-st, 24 111., 2.57 447 Boweu vs. Beed, 103 Mass., 46 5"4 Boweu vs. Shay, 105 111., 132 78 Bower vs. G.&M. K. K. Co., 92 lU., 223.67, 209 Bowers vs. Block, 129 111., 424 .... 155, 158, 168 Bowers vs. Bowers, 26 Pa. St., 74 11 Bowie vs. Puckett, 7 Humph. (Tenn\ 169. . 239 Bowles vs. Rouse, 3 Gilm., 4u9 18, 156, 167 Bovce v6. WaiTen, 2Dev.&B. (.N. C.)L,. IM 412 PAGE. Boyd vs. Clements, 14 Ga., 639 363 Bovd vs. Ha-wkins, 2'lred. (N. C.) Eq., 304 3.58, 363 Boyd vs. Strahan, 36 111., 355 185, 200 Boyden vs. Boyden, 5 Mass, 4.!7 412 Boyden vs. Frank, 20 111. Ap., 169 458 Boyer vs. Bover, 89 111., 447 223 Boyett vs. Hurst, 1 Jones (N. C.) Eq., 1C6. 270 Bovles vs. Murphy, 55 lU., 236 148 Boys vs. Rogers, 21 111. Ap., 534 93 Bozza vs. Kowe, 30 111., 198 178 Bradford vs. Abend, 89 111., 78 415 Bradford vs. Jones, 17 111., 93 102, 103 Bradley vs. State, 31 Ind., 492 421 Branch vs. Branch, 108 III., 444 2(:6 Branch vs. Kankin, 1^8 111., 444.18, 30, 31, 2'14 Brand vs. Abbott, 42 Ala., 499 25':" Brandon vs. Brown, 106 lU., 519 1''0, 138, 176, 29.'^ Branger vs. Lucy, 82 111., 91 273, 27.'' Brantley vs. Key, 5 Jones (N. C.) Eq., 332 361 Brassfield vs. French, 59 Jliss., 632 83 Brazier vs. Clark, 5 Pick. (Mass. >, 96 35 Breckim-idge vs. Ostrom, 79 lU., 71 85, 207 Bree vs. Bree, 51 lU., 367 157 Breed vs. Pratt, 18 Mass., 115 411 Brenner vs. Gauch, 85 lU., 368 91 Hrewer vs. Vanarsdale, 6 Dana (Ky.i, 204 . 270 Brewster vs. Kilduff, 15 lU., 492 .... .542 Bricks' tstate, 15 Abb. (N. Y.) Pr., 12. . . 317 Bridges vs. Kice, 99 lU., 414 169, 201 Brigham vs. Brigham, 12 Mass., 505 408 Brigham vs. Tillinghast, 15 Barb.(N. Y.), 618 445 Brinkerhoft' vs. Everett, 38 111., 2 3 270 Brisbaue vs. The Bank, 4 Watts (.Pa.), 92 . 264 Brisbinvs. Cleiiry, (Sup. Ct. Minn.l, 11 Legal News, 365.... P41 Brook vs. Slaten, 82 111.. 283 HI Brockman vs. Sieverliug. 6 HI. Ap., 512 102 Bromwell vs. Schubert, 28 N. E. Kep., 1057 . 10'.' Brooklyn Industrial School vs. Kearney, 31 Barb. (N.Y.), 4.30 219 Brooks vs. Brooks, 3 Ired. (N. C.) L., 389. 414 Brooks vs. People, 15 111. Ap., 57 i 356 Broughtou vs. Bradley, 34 Ala., 694 9 Brower vs. Fisher, 4 Johus. (. h , 441 41o Brown vs. Anderson, 2 Md., Ill 248 Brown vs. Chase, 4 Mass , 436 266 Br6wn vs. Christie, 27 Texas, 73 313 Brown vs. Cowell, 116 Mass., 461 3.59 Brown vs Lynch, 2 Bradf. (N. Y.),214. . .. 230 Brown vs. McWilliams, 29 Ga., 194 292 Brown vs. MuUins, 24 Miss., 24 287, 29') Brown vs. Parker, 15 111., 307 68 Brown vs. Pitney, 39 lU., 470 149 Brown vs. Biggin, 94 111., 560 182 Brown vs. Sullivan, 22 lud ,359 .56 Brownfield vs. Browuf.eld 43 111., 163 193 Brubaker's Appeal, 98 Pa. St., 21 . . . 14 Bruce vs. Doohttle. 81 111., 103. . . . 285, 291, 292 Brush vs. Blauchard, 1811!., 46 291 Brush vs. Blauchard, 19 lU., 31 253 Brush vs Lemma, 77 lU., 496 633, 53''. Bryan vs. Moore, 11 Martin, 26 150 Bryant vs. Craig, 12 Ala. ,354 2.55, 285 Brvant vs. Jackson, 6 Humph. (Tenu. 1, 199. 421 Bucher vs. Bucher, 86 111., ;i77 74, I28 Buck vs. Eaman, 18 lU., 529 72 Buckiugham vs. Morrison, 136 111., 43!". 82, 87 Buckley vs. Kedmoud, 2 Bradf. Sur., 281 . 9 Buckmaster vs. Carliu, 3 Scam , ](i4 .319 BueU vs. Buckingham, 16 Iowa, 284 361 Bullock vs. Babcock, 3 Wend. (N. Y.),391. 277 Biu'gen vs. Strauphan, 7 J. J. Mar.sh. (Ky.). .583 499 Biuger vs. Potter, 32 111., 72 222 Burgess vs. Pollock, 53 Iowa, 273 417 TABLE OF CASES CITED. A' IX PASF,. Bnrnap vs. Dennis, 3 Scam., 478 51, 79 Bui-nett vs. Commonwealth, 4 T.B.Monroe, 108 511 Burnett vs. Lester, 53 111., 3J5 1«5 Burnett vs. Meadows, 7 B. Monroe, 277 11 Burr vs. Wilson, 18 Texas, :if)7 347 Burr vs. Wilson, 50 Ind., 587 5 7 Bursen vs Goodspeed, 69 111., 278 172, 224 Burton vs. Tunnell, 4 Harr. (Del.), 424 349 Burwell vs. W andeville, 2 H av., 579 82 Bush vs. Sherman, 80 111., 160 367 Butler vs. Durham, Sired. (N.C.I Eq., 589 239, 349 Butterworth's Case, Woodb. & M., 323.... 560 Bybee vs. Tharj^, 4 T. B. Monroe (Ky ), 313 257,287 Byrnes vs. Barr, 86 N. Y., 210 185 Cafniey vs O'Brien, 83 111., 72 135, 21 i CaldweU vs. Yoimg, 21 Texas, 800 289 Calhoun vs. Calhoun, 41 Ala., 369 287 CaU vs. Riiffin 1 Call ( Va.), 333 350 Call vs. Ward, 4 Watts (Pa.), 118 277 Calvert vs. ('arpenter, 96 111., 63 . . 194 Campbell vs. • ampbell,63 III., 462 221 CampbeU vs. mpbell, 130 111., 436 182 Campbell vs. iianiiou, 43 lU., 19. .222, 309, 313 Campbell vs. .lohnson, 1 Saudf. (N Y ) Ch., 148 358 Campbell vs. Ku'Khts, 26 Me., 24 1 15 Campbell vs. Mieldon, 13 Pick., 8 57 Campbell vs. Tousey, 7 • -ow., 64 56 Campau vs. Gillette, 1 Mich., 416 170 Canatsey vs. Canatsey, 130 III., 397 183 Caufield vs. Fairbanks, 63 Barb. (N. Y.), 461 417 Capehart vs. Huey, 1 Hill («. C.) Ch., 405. 249 Capen vs. Foster, 12 Pick., 485 541 CapUnger vs. Stokes, Meigs (Tenn.), 175. . 272 Carlile vs. Tuttle, 30 Ala., 613 337 Carlysle vs. Carly sle, Id Md., 440 - . . . 255 Caricichael, In re.,36 Ala , 514 411 Carmi -hael, In re , 6 DaUy f N. Y.), 51 4 8 Carowvs Mowatt. 2 F,dw., 57 21 Carpenter vs Calvert, 83 111., 62 182, 192 Carpenter vs Cariieuter, 8Busb. (Ky.), 283. 411 Carpenter vs. McBride, 3 Fla., 292 269 Carpenter vs. Sloane, 20 Ohio, 327 237 Carroll vs. Bosely, 6 Yerger, 220 42 I artwright vs. Wise. 14 111., 417 222 Caseyvs. Casey, 14 111., 112 358, 365 Cassellvs Williams, 12 lU., 387 62S Castleman vs. Castlenian, 6 Dana (Ky.\ 55. 407 Castner vs. Walrod, 83 lil., 171 226 Carroll vs. B >uham, 42 N. J. Eq., 6J5 .... 198 Caskie vs. Harrison, 76 Va., 85 85 Carter vs. Tice, 120 lU., 27V 255 Cavanaugh ' s. McOonochie, 134 lU., 516 . . 549 Chaffin vs. H ih s of KimbaU, 23 111., 36 ... . 22 1 Chamberlain vs. Bates, 2 Porter (Ala.), 550. 30 Chambers vs. Jones, 72 111., 275 174, 321 Chambers vs. Howill, 11 Beav., 13 85 Champion vs. Brown, 6 Johns. Ch., 398.'72, 99 Chapin vs. Hastings, 2 Pick., 71 13 Chapman vs. Chapman, 32 Ala., 106 269 Chappell vs. McKnight, 108 lU , 570 179 Chappie vs. Cooper, 13 M. & W , 259 277 Charles vs. Charles, 8 Gratt., 486 12 Charles vs. Jacobs, 9 Rich, 295 34 Chase vs. People, 40 111., 352 421 Cheney vs. Roodhouse, 135 III. , 257 ... . 261, 296 Chicago & Alton K. R. Co. vs. Gregory, 58 111., 226 265 Chicago & N. W. R. R. Co. vs. Chisholm, 79I11.,584 92 Chicago & Pacific R. R. Co. vs. Munger, 78 lU., 300 414 Chicago & R. I. and P. R. R. Co. vs. Ken- nedy, 70 111., 350 267, 268 PAGE. Chicago Mut. Life Indemnity Ass'n vs. Hunt, 127 lU., 257 28 Chicago West. Div R. R. Co. vs. MUls, 91 111., 39 ; 411 Chickering vs. Kayraoud, 15 111., 362 447 Child vs. Brace, 4 Paige 309 t58 Child vs. Gratiot, 41 111., 357 12, 20, 21 Childers vs. Bennett, 10 Ala., 751 204 CliUton vs. Parks, 15 Ala. ,671 348 Chilton vs. People, 66 lU., 501 507, 5; I8 Chirac vs. Chirac, 2 Wheaton, 259 557 Choteau vs. Jones, 11 111., 300 168, 169 Christmas vs. Mitchel, 3 Ired. (N. C.) L., 535 362, 410 Christy vs McBride, 1 Scam., 75.36, 48, 63, 2(i6 Church vs. People, 26 lU. Ap., 23i 515 City of Alton vs. Coimty of Madison, 21 111., 115 413 City of 13eardstown vs. City of Virginia, 81 111., 541 537, 539, .540, 557, 561 Clark vs. Board of Supervisors, 27 111., 3 5. 537 Clark vs. Bumside, 15 111., 62 60, 72, 254 Clark vs. Deveaux, 1 S. C, 172 358 Clark vs. Hogle, 52 111 , 427 6, 107, 172 Clark vs. Ga field, 8 AUeu (Mass.), 427 255 Clark vs. Groom, 24 ID., 316 448 Clark vs. Knox, 70 Ala., 607 114 Clarkva Montgomery, 23 Barb. (N.Y.),46i. 28J Clark vs. Robiuson, 88 lU , 498 539, 541, 542, 543, .544 Clark vs. Thompson, 47 lU. , 27 . 1 59, 16 1 , 163, 22 1 Clark vs Trail, l Mete. (Ky.), 35 4"8 Clark, Jn re., 18 Barb. (N. Y.),444 560 Clay vs. Clay, 3 Mete. (Ky 1. 548 255 Clayton vs. Johnson, 36 Ark., 40 448 Cleland vs. Porter, 74 111., 76 538 Clelland vs. Fish, 43 111., 282 357 Clinch vs. Eckford, 8 Paige, 412 138 Chnefelter vs. Ayers, 16 111., 329 ... 16, 47, 179 Clingman vs. Hopkie, 78 111., 152 Ill Clubb vs. Wise, 6 k lU., U)7 2f9 Coat vs. Coat, 63 lU., 73 17+ Coates vs. MacKey, 56 Md., 416 1C5 Cochran vs. McDowell, 15 111., 10 265 Cockrell vs CockreU, 36 Ala., 673 345 Coffey vs. Home Life Ins. Co , 44 How. (N.J.) Pr., 481 410 Coffin vs. Argo, 134 lU., 236 281 I ohen vs. Shyer, 1 Tenr. Ch., 192 287 Colah, Matter of, 6 Daily i N. Y.). al 413 Colby vs. O'Donnell, 17 lil. Ap , 473 458 Cole vs. Marple, 98 111., .58 71, li9 Cole vs. Pennoyer, 14 111., 158 205, 266 Coleman vs Commissioners, 6 B. Monroe (Ky ), 239 408 Coleman vs. Frum, 3 Scam., 378 499, 507 Collins vs A yer-", 13 111., 358 73, 74, 207 Colton vs. Field, 131 111., 398 51, 82, 119 Combs vs. Janiver, 31 N. J L., 240 409 Comer vs. Comer, 120 lU., 420 149, 183 Commissioners vs. Gilbert, 2 Strobh. i S. C), 152 .507 Common vs. People, 28111. Ap., 230 515 Commonwealth vs. Heath, 11 Hray (Mass.), 303 419 Commonwealth vs. Henshaw, 2 Bush. (Ky S 286 216 Commonwealth vs. Moore, 3 Pick. (Mass.), 194 504 Commonwealth vs. Mosler, 4 Pa. St., 264 4 1 Commonv/ealth vs. Pearce, 7 Mon ,317 508 Commonwealth vs. Kodgers, 7 Mete. (Mass.), 500 421 Commonwealth vs. Sherman, 6 Pa. St , 346 318 Commonwealth vs. Thompson, 3 Litt (ny.),284 50], 609 Compton vs. Compton, 3 Gill. (Md.), 241. 230 \XII TABLE OF CASES CITED. PAGE. Fry's Election Case, 71 Pa St., 302 540 Fryrear vs Lawrence, 5 Gilm., 3j5. . ..lOS, r2ri Fuller vs. Hilllard, 29 lU., 413 53S Fuukvs. Eggleston, 92 lU., 515 201 Fuqua, Succession of, 27 La. Ann., 271 .. 2 to Furlong vs. Kiley, 103 lU., 629 90, 172 Furmau vs. Coe, 1 Cai. C, 96 36 Gage vs. Shroeder, 73 lU., 44 163, Gammage vs. Noble, 24 Miss., 150 .... Gardner vs Commercial National Bank, 95X11., 298 4 6, Gardner vs. Hyer, 19 Johns., 187 Gardner vs. Ladue, 47 111., 211 Gardner vs. Maroney, 95 lU., 552 Garland, Ex parte, 10 Vesey. Jr., 119 Garrett vs. Moss, 20 111 , 55o Garvin vs. Stewart, 59 111., 229 6, Gauch vs. Harvey, 36 lU., 313 Gauch vs. St. Louis lu. Co., 88 111., 251 Gay vs Ballou, 4 Wend., 403 Gay vs. Du TJprey, 16 Cal ,195 Genet vs. Tallmadge, 1 Johns. Ch., 3 Georgetown College vs. Brown, 34 Md., 4'>o. Gibson vs. Gibson, 82 lU , 61 171, Gibson vs. Kees, 50 111 , 383 Gibson vs. KoU. 27 111., 8S.... 157, 160, 309, Gilbert vs. Bone, 64 lU., 518 GUbert vs. Bone, 79 III., 341 Gilbert vs. Guptill, 34 III., 112.72, 255, 285, Gilbert vs. McEachen, 38 Miss., 469 Gilkey vs. HamOton, 22 Mich., 283 Gill vs. Mining Co., 92 111., 249 149, Gillelt vs. Wiley, lJ6 IU.,31ii 281, Gilliland vs. Hea. 9 Paige, 66 Gilman C. & S. R. K. Co. vs. Kelley, 77 111, 426 360, Gilmore vs. Eodgers, 41 Pa. St., 120 Gilmore vs. Gilmore, 109 111., 277 Gilmore vs. Sapp, 1;h) lU., 297 Glenn vs. Smith, 2 Gill & Johns., 493 57, Glidden v.i. Nelson, 15 111. Ap., 297 Glinwater vs. M. & A. K. K Co., 13 III., 1 Goeppner vs. Leitzelmaun, 98 III., 409 94, 170, Goldvs Bailey, 44 111., 491 34, lo7, coltra vs. People, 53 111., 224 35, Gooch vs. Green, 102 111., 507 Goodall vs. Marshall, 35 Am. Dec, 483 Goodbody vs. Goodbody, 95 111 , 456 . 170, Goodwin vs Jones, 3 Mass., 514 2 13, Gore vs. Clisby, K Pick, 555 Gotts vs. Clark, 78 lU., 229 Gottsberger vs. Taylor, 2 Bradf., 86 Goudy vs. Hall, 36 111., 313 160, 161, 16'., 176, Grabill vs. Barr, 5 Pa St. K., 441 Graff vs. Oastleman, 5 Band. (Va. ), 195 Graff vs. Fitch, 58 111., 373 Graham vs. Commonwealth, 16 B. Mon. (i\y. ', 5a7 Graham vs. Pnb. Adm'r, 4 Bradf., 127 . . . Grand Tower Mining Co. vs. GUI, lllIU., 541 Granger vs. Granger, 6 Ohio, 35 Grau.iang vs. Merkle, 22 111., 250 Grant vs. Green, 41 Iowa, 88 408, Grant vs. Thompson, 4 Conn., 203 Grattan vs. Grattan, 18 111., 167 .... 5, 144, Green vs. Massie, 1 3 lU. , 363 50, Green vs. Phoenix Ins. Co., 134 111., 310. . . Green vs Winter, 1 Johns. (N. Y.) Ch., 27. Greenbaum vs. Greenbaum, 81 111., 367 . . . Greene vs. Grimshaw, 11 111., 389 Greenman vs. Harvey, 53 111., 386 163, Greenwood vs. Miiiiihy, 131 IU.,604 Greenwood vs. SpiUer, 2 Scam., 502 Greer vs. Walker, 42 111., 401 Greer vs. Wheeler, 1 Scam. , 554 223 249 407 34 184 4.9 81 318 1 163 147 •.:90 277 215 12 275 449 3 8 273 273 348 287 46 201 S56 170 368 312 279 313 206 511 29 171 131 319 207 175 201 450 215 20 223 410 361 520 419 204 189 112 113 413 410' 218 71 425 363 311 125 2!1 548 51 128 268 PASE. Gregg vs. Gregg, 15 N. H., 190 286 Gridley vs. Watson, 53 I U., 1 86 168 Griffith vs. Frazier, 8 Cranch, 9 17 Grimsley vs. K'.eiu, 1 Scam., 346. 527 Griswold vs. Butler, 3 Conn., 227 417 Griswold vs. Gnswold, 4 Bradf., 216 101 Griswold vs. Miller, 15 Barb. (N. Y.t, 520. 4.6 Griswold vs. Waddingtou, 15 Johns. N. Y.), 57 81 Grover vs. Wakeman. 11 Wend. (N. Y.), 187 41.5, 448 Guardianship of Feegan, 45 Cal., 17G 415 Guernsey, Ejc parte, 21 111., 443 317, 318 Guinea vs. People, 37 111 Ap., 450 5)2 Gnitteau vs. Wiseley, 47 11., 433 176 Guthrie vs. Murphy, 4 Watts (.Pa ), 80 277 Guy vs. Gericks, i-5 111., 428 61, 109, 273 Hadniil vs. Wilder, 4 McCord (S. C), 294. . 362 Haines vs. Hewitt, 129 lU., 347 281 baines vs. People, ■ 97 III , 162 13 ', 133. COg, 210, 509 Hale vs. Brown, 11 Ala., 87 418 Hales vs. Holland, 92 111., 494. .. . 5, 98, 112, 12rt Hall vs. Commonwealth, Hard. (Ky.), 479. 500 Hall vs. Cone, 5 Day ( Conn.), 54.i 270 Hall vs Davis, 44 lU., 494 221 Hale vs Hale, 125 111., 399 179, 184 Hall vs. Hall, 3 Atk. Ch., 721 264 Hall vs. Hoxev, 84 111., 616 106 Hall vs. Irwin, 2 Gilm., 176 3., 47, 179 Hall vs. Pratt, 5 Ohio, 72 34 Hall vs. Unger, 2 Abb. (U. S.), 5l)7 410 Halleck vs. Guy, 9 Cal., 181 317 HaUowell vs. Saco, 5 Greeulf., 143 152 Halstoad vs. Hyman, :t Bradf., 426 38 Hamilton vs. Gilman, 12 111 , 260 265 Hamilton vs. Hamilton, 98 111., 254 179 Hamilton, 7n re., 17 Serg. & R. (Pa.\ 144. 264 Hammer vs. Swift, 7 Legal News, 167 541 Hauchett vs. Weber, 17 III. Ap., 114 485 Hancock vs. Titus, 39 Miss., 224 36 1 Hanford vs. Piouty, 133 III., 339 457 Uanford Oil Co. vs. First Nat. Bank, 126 111., 584 45.5, 453, 4.=;8, 460 Hanifan vs. Needles, 108 111., 403 22, 39 Hanua vs. Reed, 102 111., 596 423 Hauna vs. Yocum, 17 III., 387 4 Hannahs vs. Sheldon, 20 Mich., 278 418 Hanuum vs Speer, 2 Dallas, 291 179 Hardin vs. Osbom, 94 III., 57 i 454 Harding vs. Le Movne, 114 lU., 65. .49, 156, 168 Hirding vs. Shepherd, 107 111., 264. . .6, 75, 112 Hardy vs. Thomas, 23 Miss., 544 57 Han-er vs. Walluer, 80 lU., 197 265, 266 Barring vs. Coles, 2 Bradf (N. Y.), 343. ... 287 Harriugton vs. Stees, 82 Til., 51 198 Harris vs. Douglas, 64 111 , 466 6, 186 Harris vs. Lester, 80 lU , 30 . .157, 160, 163, 175 Harris vs. Millard, 17 1.3. Ap., 513 101 Han-is vs. Schryrock, 82 111., 119 .53 1 Harrison vs. Rowan, 4 Wash., 202 414 Harrison vs. Singleton, 2 Scam., 21 527 Harrod vs. Norris, 11 Martin, 297 79 Hart vs. Ten Eyck, 2 Johns. Ch., 62 34 Harter vs. Johnson, 16 lud., 271 499 Ilartman vs. Hartman, 59 III., 103 217 Hartman vs. > chultz, 101 III., 437 166 Hartwell vs. McDonald, 69 111., 293 166 Harvey vs. Harvey, 87 111., 54 134, 286 Harvey vs. Hobson, 55 Me., 256 417 Harvey, In the Matter of, 16 111., 127 315 Harvey vs. Thornton, 14 111., 217 . 139 Harward vs. Robinson, 14 lU. Ap., 56 I. . .. 36 Hasler vs Ha sler, 1 Bradf., 248 125 Hatcher vs. Hatcher, 8 ) Va., 169 184 Hauskins vs. People, 82 III., 193 . .500, 501, 509 Hawe vs. State, 11 Neb., 537 410 Hawkins' Appeal, 32 Pa. St., 263 270 TABLE OF CASES CITED, XXIII PAGE. Hawkins vs. Hawkins, 54 Iowa, 443 190 Hawkins vs. Johusou, 4 Blakf ., 21 .5G Hawley vs. Maucius, 7 Johns. Ch., 274 .'... 3R3 Hawley, Matter of, 1 Daley, 531 557 Hayes vs. Mass. Life Ins. Co., 125 lU., 256 261,262,281 Haynes vs. Swann, 6 Hask. (Tenn.), 56 •. . . 411 Hays vs. Jacksou. 6 Mass., 149 47 Hays vs. Thomas, Breese, 13-i 142 Hayward vs. Ellis, 13 Pick. (Mass.), 272.. . 2.^7 Heacock vs. Durand, 42 111., 230 4 ;7 Heard, Ex parte, 2 Hill ^S. C.) Eq , .54!... b37 Hehn vs. Hehu, 23 Pa. St., 415 413 Helm vs. Cautrell, 59 111., 524 170, 171 Helm vs. Van Vleet, 1 Blackf. 1 lud.), 34 ' 73, 74 Hemmer vs. Wolfer, 124 111., 435.. 28) HempliiU vs. Lewis, 7 Bush. (Ky.i, 'ix* .. 219 Hempstead vs. Dickson, 20 lU., j93 2.11 Henchey vs. Chicago, 41 111., 136 52, 72 Hendrix vs. People, 9 111. Ap., 42 514 Henson vs. Moore, 104 IL,, 4i 3 '.'. . 148 Herdman vs. Short, 18 lU., 59 161, 163, 272 Herrick vs. Grow, 5 Wend., 579 49 Hertel vs. Bogart, 9 Paige, 52 47 Heslop vs. Gatton, 71 111., 528 ".'.'.. .2' o', 201 Hess vs. Voss, 52 III., 472 223, 224, 319 Hestor vs. Wilkinson, (i Hump.(Tenn.), 215. 367 Hatfield vs. Fowler, 60 111., 45 134, 185 Heuer vs. Schafl'ner, 30 111. Ap., 337. ..456, 460 Heustis vs. Johnson, 84 111., 61 6 Heward vs. Slagle, 52 111., 336 '. .iij 1-29 Hewitt vs. School District, 94 111., 528 . 366 Hexter vs. Loughry, 6 lU. Ap., 262 ' 451 Hickox vs. Frank, 102 lU., 660 9, 25, 48 Hicks vs. Hotchkiss, 7 Johns. Cli., 742 . . 429 Hickenbotham vs. Blackledge, 54 111. 3-6 173, 221 Hide & Leather Nat. Bank vs. Kahm, 126 111., 461 456 Hier vs. Kaufman, 134 lU., 215 4.')5, 457 Higgins vs. McClure, 7 Bush. (Ky.\ 379. . 286 Higgins vs. Wliitson, 20 Barb. (N .Y.), 141. 367 ^ill vs. Cooper, 8 Oregon, 254 362 Hill vs. Mclntypf , 39 N. H., 410 .. . 348 HiU vs. Reitz, 24 III. Ap., 391 531 Hill vs Tucker, 13 Howard, 458 1 05 Hines vs. State, 10 Miss., 532 252 Hinton vs. Dickersou, 19 Ohio St., 5a3 . . .'. 500 Hirsch vs. Trainer, 3 Abb. (N. Y. ) Cas., 274 408 Hitchcock vs. Watson, 18 IU-. 289 326, 358, 361, 363 Hitt vs. Ormsby, 12 HI., 166 265 Hitt vs. Scammou, 82 111., 519 .] 71 Hoare vs. Harris, 11 111., 24 267 Hobson vs . E wan, 62 111., 146 16, 156,157, 160, ICl, 177 Hobson vs. Payne, 45 lU., 158 105, 160, 161, 170, 210 Hoch vs. Lord, Thach. Mass. Cr. Cas 507 Hodges vs. Wise, 16 Ala., 59 221 HoJgin vs. Toler, 70 Iowa, 21 46 Holcomb vs. People, 79 111., 40 9 498, 499, 501, 502, 503, 509 Holland vs. state, 48 Ind., 391 2i'3 Holley vs. Chamberlain, 1 Redf. (N.Y.), 333. 230 Holloway vs. Galloway, 51 111., 159 184 Holman vs. Blue, 10 111 Ap., 130 '".'.' 263 Holmes vs Fields, 12 111., 424.218, 219, 250, 347 Holmes vs. Remsen, 4 Johns. Ch., 460 . 150 Holmes vs. Seele, 17 Wend., 75 .'.' 551 Holyoke vs. Haskins, 5 Pick. (Mass.)j 20.18, 2V2 Home Nat. Bank vs. Sanchez & Hava, 131 lU., 3:0 457 Hooper vs. Hooper, 26 Mich., 435 '. 3a Hooper vs. Royster, 1 Mump. (Va.), 119 2i'7 Hopkins vs. McCaun, (9 lU., 113. 107,113 I'l Hopps vs. People, 31 111., 385 420,' 411 Hopson vs. Boyd, 6 B. Mou. (Ky.), 296 418 XT • „ . PAGE, Honne vs. Horme, 11 Mo , 649 249 Horner vs. Goe, 54 111., 285 210 Horskins vs. WOliamson, 1 T. U. P. Charlton (Ga.), 145 73 Hosack vs. Rogers, 6 Paige, 415.... 150 Hoskins vs. WHson, 4 Dev. & B. (N. C.) L., 243 317 Hough vs. Doyle, 8 Black, 300. . . 222 Hough vs. Harvey, 71 lU., 72 52, '125, 137 House vs. Trustees, 83 lU., 368 118 Housh-vs. People, 66 111., 181 4, 114, 126 Howard vs. Crawford, 15 Ga., 424 481 HoweU vs. Edgar, 3 Scam , 417 . 449 Howell vs. Edmonds, 47 111., 79 99 HoweU vs. Moores, 127 111., 67.ii7; 455, 459, 460 Howlett vs Mills, 22 III., 341 .. . 449 Hoyt vs. Hilton, 2 Edw. N.Y.),2U2 220 Hoyt vs Swar, 53 111., 134 266 Hubbard vs. McNaughton, 43 Jiich., 220 ' 448 Hudson vs. Maze, 3 Scam., 578 447 Hufl- vs. Walker, 1 Ind , 193 " " ' ' 251 Huffer's Appeal, 2 Grant (Pa.) Cas., 341 ' 256 Hughes' Minor's Appeal, 5 Pii. St , 5 251 Hughes vs. People, 111 111., 457.262, 268, 295, 369 Hme vs. Nixon, 6 Port. (Ala.), 77 234 HiUs vs. Buntin, 47 111., 396 267, 268 Hulse vs. Mershon, 125 111., 52 '456 457 Hume vs. Beale, 17 Wall., 336. "' '363 Hungatevs Reynolds, 72 111., 425 50 Huut vs. Thompson, 3 Scam., 179 215 276 Himter vs. Bryson, 5 Gill & Johnson', 483 195 Hunter vs. Postlewa t, 10 Martin, 456 73 Hurd vs. Slaten, 43 111., 348 .. . . lOO Hurdle vs. Leath, 63 N . C, 597 . . . 259 Huson vs. Wallace, 1 Rich. [S. C ) Eq., i " 2"6 Hutchinson vs. Mudd, 6 J. J. Marsh. (Ky.i, 580 285 Hyde vs. Stone, 7 Wend. (N. Y.), 354 214 Ice vs. McLean, 14 111., 62 526 527 Ide vs. Sayre, 129 111., 23 ' ' 468 Illinois Central R. R. Co. vs Oracrin ,71IU-,177 'i,3,16, 17 Ilhnois Central K. IJ. Co. vs. I atimer, 28 111. Ap., 552 .226 Illinois Centi-al R. R. Co. vs. Laliiuer 128 lU. Ap., 163 22c Il'iuois Land & Loan Co. vs. BouueV, '75IU.,315 142, 26G Inferior Court vs. Cherry, 14 Ga., 594 23o Ingelow vs. Douglas, 2 Stark, 36 277 Insurance Co vs Aspinwall, 44 llich., 33 ■ 198 Irby vs. Kitchel, 42 Ala., 438 6] Isham vs. Gibbons, 1 Bradf., 69 15, 252 Isom vs. First Nat. Bank, 52 Miss , 902. . 362 Iverson vs. Loberg, 26 111., 179 156, 161 J.ackson vs. Jackson, 1 Graft. (Va ), H3. . . 287 Jackson vs. Ryan, 3 J. J. Marshall, 3"8 . . . ! 80 Jackson vs. Sears, 10 Johus. (N. Y.), 435. . 249 Jackson vs. Todd, 25 N. J. L. (1 Dutch), 12i . 310 Jackson vs. Van Duesen, 5 Johus, 154 41o Jacobs vs. Allen, 18 Barb. (N. Y.), 549.... 445 Jacobs vs. Bull, 1 Watts, 370 '. . . 35 James vs. Langdon, 7 B. Monroe (Ky,), i93. 418 Jamison vs. Glasscock, 29 Mo., 191 361 Jarrett vs. Andrews, 7 Bush. (Ky.), 311 ... ! 287 Jeffries vs. Decker, 42 111., 519 158 Jenliius vs. Drane, 121 111., 217 I45 Jenkins vs. Pierce, 98 111., 646 754 Jenkins vs. Wa'ters, 8 Gill. & J. (Md.), 'iis. 257 Jeuuers vs. Howard, 6 Blackf. (Ind.;, 240. . 419 Jennings vs. Joyce, 1 16 lU., 179 548 Jennings vs. Kee, 5 Ind., 277 264 Jennings vs. McConnell, 17 lU , 14^ .6, 100 Jennings vs. Teague, 14 S. C, 229 46 Jennison vs. Hapgood, 10 Pick., 77 . . .'.' 252 Jessup vs Jessup, 102 lU., 480 53, 291 Johnson vs. Baker, 38 HI., 98 159 XXIV TABLE OF CASES CITED. PAGE. Jolms vs. Norris, 12 <1. E. Green (N. J.) Ch., 485 362 Johnson vs. i arter, 19 Mass., 4*1 347 Johnson vs Chadwell, 8 Humph. (Tenn ), 145 418 Johnson vs. Corpenuing, 4 lied. Eq., 2 6. 9 Johnson vs. Gillett, 52 111., 3.58. . ..112, 114, 128 Johnson vs. Johnson, 3ii lil., 215 15!) Johnson vs. Miller, 33 Miss., 553 291 Johnson vs. Kockwell, 29 Barb, i, N. Y. , 16. . 276 Johnson vs. Von Kettler, 66 111., 63 70, 132 Johnson vs. Von Kettler, 84 111., 315. . .132, 133 .iohnston vs. Maples, 49 111., 101 50, 126 Jones vs. Brewer, 1 Pick. (Mass.% 314 258 -Tones vs. Coo^jer, 2 Aikens, .54 1''8 Jones vs. Jones, 15 Texas, 463 206 Jones vs. Knox. 46 Ala., 53 239 Jones \s. People, 19 111. Ap., SCO 531 Jones vs. People, 53 111., 366 499, 5 '1, 505 Jones vs. Perkins, 5 B. Mon. (Ky.),22i. .11, 4'8 Jones vs. Smith, 3a Miss., 2^5 H6I Judge of Probate vs. Cook, 57 IS . H., 450. . . 348 Judy \n. Kelley, lllll.,211.60,72,101,l"3,10.-),n3,17l,2 3, 206 Julliard vs. May, 130 111., 87 461 Kan- vs. Karr, 6 Dana CKy \ 3 2">5, Keefer vs. M.son, 36 111., 406 68, Keegau vs. Geiahty, 101 lU., 26 147, Keegan, In re , 13 Le^al News, 161 & 328. . Keible vs. Oummings, 5 Hayw. (Xenn.), 43. Keil vs. Healey, 84 111., 104 265, Keith vs. Funk, 47 111., 272 Keith vs. Jolly, 26 Miss., 13! Kelley vs. Pavis, 49 N. H.. 187 Kelley vs. People, 29 111., 287. .498,499, 500, Kelley vs. Smith, 15 Ala., 6-i7 Kellogg vs. HoUey, 29 III., 437 Kellogg vs Wilson, S9 111., 357 Kaster vs. Pearson. 27 Iowa, 90 Keating vs. Stack, 116 111., 91 Kellers' Appeal, 8 Pa. St., 288 Kelley vs. Kelley, 9 Ala., 908 Kelley vs. Vigas, 112 lU , 242 Kendall vs. Miller, 9 Cal., .591 Kenedy vs. Gaines, 51 W iss., 625 Keuisto:! vs. Rowe. IS Me., 38 Kenley vs. Brjan, 110 111., 6.52 .... 1.55, in.5, Kennedy vs. Kennedy, 105 lU,, 35:i Kennedy vs. Shepley, 1 5 JNIo., 64'i Kershaw vs Kershaw, 102 111,, 307 Kesler vs. Peuninger, 59 111., 134 -'.Ji, Kester vs. Stark, 19 lU., 328 Ketteltas vs. Gardner, 1 Paige, 488 Ketteltas vs. Ketteltas, 72 N. Y., 312 Kevan vs. Waller, 41 J.eigh (Va.), 414 Kidd vs. Chapman. 2 Barb. Ch., 414 Kilber vs. Mvrick, 12 Fla , 419 Kilgourvs. Gockley, 8illl.,109 161, Kimball vs. Mulhem, 15 111., 205 Kimmel vs. Kimmel, 48 Ind., 203 King vs. Collins, 21 Ala. , 363 Kingvs Cushman, 41 lU., 31 358, King va. Goodwin, 130 111., 102 King vs. Green, 2 Stewart, 133 King vs. King, 15 111., 187 King vs. King, 3 Johns. Ch., 552 King vs. Morphew, 2 Maule & Sel., 602 Kingei-y vs. Berrj-, 94 III., 515 543, Kingsbury vs. Buckuer, 134 U. S., 650 Kingsbury vs. Bumside, 58 111., 311 Kingsbury vs. Hutton, 40 111. Ap., 421 Kingsbury vs. Powers, 131111., 182 131, 281, 295,296, Kingsbury vs. Speny, 119 111. , 279 Kinne vs Johnson, .50 Barb., 70 Kinney vs. Knoebel, 51 lU., 114 Kirby vs. Taylor, 6 Johns. Ch. (N. ¥.), 242. Kirby vs. Turner, Hopk. (N. Y.), 309. .257, 207 376 147 418 266 448 219 215 .502 230 90 177 34 549 76 39 146 214 311 503 174 5 4S 142 267 224 346 146 235 131 417 2R6 450 345 222 362 91 34 218 33 506 545 282 195 297 330 330 183 1.55 •.:70 270 PAGE. Kirby vs. Wilson, 98 111., 240 119 Kirkham vs. Boothe, 11 Beav., ^73 82 Kitson vs. Farwell, 132 111., 327 484, 485 Khne vs. Beebe, 6 Conn., 494 214 Klingensiuith vs. Bean, 2 Watts, 486 5 Klokke, vs. Dodge, 103 111., 125 ' 7 Knickerbocker vs. Knickerbocker, .58 111., 399 311 Kuowles, Ex parte, 5 Cal., 300 560 Kuow'ton vs. Bradley, 17 > . H.. 458 256, 258, 367 Knox Co. vs. Da\is, 63 111., 405. . .535, 542, 557 Kolbe vs People, 85 111., 336 500 Kreii z vs. Behreusmeyer, 125 1 11., 141 548, .549, ,561 Kreitz vs. Behreusmeyer, 131 111., 239 ,549 Kreuchi vs. Deliler, 50 111., 176 527, .528 Kruse vs. Steftens, 47 111., 112 174 Kuchcnbeiser vs. IJeckert, 41 111., 172 266,. 267, 319 Kurtz vs. Hlbner, 55 lU., 514 200 KuykeudaU vs. Barker, 89 111., 126 541 Kyle vs. Bamett, 17 Ala., 306 272 Labadie vs. Hewitt, !^5 lU., 341 162 Laboui'here vs. Tupjier, 11 Moore Priv. Conn., 221 82 Ladd vs. Griswold, 4 Gilm., 25 29, 85, 99 Laiable vs . Fetry, 32 N . J . ,Eq. , 791 83 Lamar vs Micou, 112 U. S., 452. .. .244,261, 338 L'Amoureaux vs. Crosby, 2 Paige ( N. Y. >, 422 416 barker vs. Kunkrl, 14 Legal News, 75 125 Lane vs. Dorman, 3 Scam., 23S l'"1 Lane vs Soulard. 15 111.. 123 266 Langdon vs. Potter, 11 Mass., 313 150 LaugNvorthy vs. Baker, 23 Hill, 484.. 12, 17, 32,107, 110, 171,210, 276 Laughlin vs. Heer, 89 111., 119. 275, 276 Lawrence vs. Klmendorf, 5 Barb., 73 2' '4 Lawrence, Matter of, 2 . N. J. «,q., 331 ... . 408 Laycock vs. Oleson, 60 111., 30 73, 74 Leamon vs. McCubbin, 82 111., 263 65. 142 Lee vs. Fox, 6 Dana ( Ky.), 171 264, 287 Lee vs. Havens, Bray t., 92 204 Lee vs. People, 30 N. E. Kep., 690 515 Lee vs. People, 40 111. Ap., 79 515 Lefever vs. Lefever, 6 Md.. 472 346 Lehmanvs Hothbarth, 111 Ill.,457 369 Leiper's Appeal, 3.-) Pa . St., 420 73 Leland vs . Felton, 1 Allen, 531 34 Le Moyne vs. Harding, 132 111., 23 1.54, 177 l.e Moyue vs. Quimby, 70 111., 400 .... 6, 49, 168 Lent vs. Howard, 3 Probate Keports, 109. . 138 Lentz vs . Pilert, 6') Md., 296 13 Leonard vs. Leonard, 14 Hck (Mass), 280. 411 Leonard vs. Putman, 51 N.H., 247. ...203, 249 Lesher vs. Wirth, 14 111., 39 89 Lessley vs. Lessley, 44 111., 527 148 Lester vs. Abbott, 28 How. (N. Y.)Pr., 488. 448 r.etcher vs. Morrison, 27 lU., 209 68 Lewis vs. Lusk, 35 Miss., 696 49 Lewis vs. Lyons, 13 111 , 117 74 Lew s vs. People, 82 lU., 104. .498,501, 506, .509 Liddell vs. Mc Vicker, 6 Halstead, 44. . . .125, 127 Lieb vs. Pierponr, 14 Reporter, 77 445 Lill vs. Brant, 1 111. Ap , 266 Ill Lill vs. Brant, C. lU. Ap., 366 ...6,446, 448, 449 Liny vs. Wagoner, 27 lU , 395 182, 417, 418 Linegar vs. Rittenhouse, 94 lU., 208. . .533, 534 Linnard's Appeal, 93 Pa. St., 313 195 Linton vs. Walker, 8 Fla., 144 269 Lipman vs. Link, 20 111. Ap., 359 461 Lippincott vs. Town of Pana, 92 lU., 24 . 537, 538 Littlefield vs. Brooks, 50 Me., 475 252 Livingston vs. Jones, Harr. Ch. (Mich.), 165 2&8, 272 Lloyd vs. Kirkwood, 112 111., 3i9 279 Lochenuiyer vs. Fogarty, 112 111., 572 99 TABLE OF CASES CITED. XXV PAGE. Lockhart vs. Phillips, 1 Ired. (N.C.)Eq, 342 269 Lookwood vs. Mills, 39 111., CO?,. . . .358,300, 361 Lockwood vs. Stradley, 1 Delaware Ch., 298 47, 179 Long vs. Loug, 132 111., 72 127, 143, 194 Long vs. Norcum, 2 Ired. (N. C.) Eq., 354. 287 Loug vs. Tliomiison, 60 111, 27 128, 150 Lougworth vs. Kiggs, 123 lU., 258 200 Lott vs. Sweet, 33 Mich., 308 421 Lovell vs. Miuot, 20 Pick., 116 2.55 Lowe vs. Bartlett, 8 Allen, 2.59 17ii, 171 Lowe vs. Mitchell, 18 Me., 372 503, 5 '4 Lowry vs. McMillan, 35 Miss., 147 150 Lojd vs. Malone, 23 111., 43 . .222, 311), 318, 319 1 .iicas vs. Perkins, 23 Ga., 267 408 Lund vs. Skanes t-uskilda Bank, 96 111., 181 . 451 Lunt vs . Luut, 108 111., 307 184, 2 lO Lnpton vs. Cutter, 8'Piok., 298 450 Lnscom'-) vs. Ballard, 5 Gray, 4li3 -3 Luther vs. Luther, 122 111., 558 13 1 Lynch vs. Hickey, 13 lU. Ap , 139 94 Lynch vs. Kotan, 39 111., 14 5, 142, 217 Lyndon vs. Lyndon, G9 111., 43 273 Lyon vs. Kain, 36 111., 3 '2 .. 139 Lyon vs. Vauatta, 35 Iowa, 521 311 Lyttle, Matter of, 3 t aige (.N. Y.), 251 412 Mack vs. Woodniff, 87 111., 570 65, 85, 112 Maconnehey vs. State. 5 Ohio St., 77 421 Madden vs. Cooper, 47 111., 3.59 160 Miigee vs. '1 oland, 8 Port. (Ala.), 36 264 Magrudervs Peters, 11 GiE. &.I.(Md.;. 217. 215 Mahar vs O'Hara, 4 Gil., 424 136, 1.50 Maher vs. Huette, 89 lU., 495 4 83 Mahill vs. Mahill, 113 111., 465 91 Mahler vs. Slusheimer, 20 III. Ap., 401.484, 485 Makepeace vs. Moore, 5 Gilm., 476 48, 53, 54, 79 Malcom vs. Bogers, 5 Cowan, 188 29 Maloney vs. Dewey, 127 111., 395 4 5, 4'.'6 Maloney vs. People, 38 111 , 62 4.8 Maun vs People, 35 111., 467 498, 5' 4 Manson vs. Feltou, 13 Pick. (Mass.), 206.. 248 Mapps vs Sharpe, 32 lU., 13 3C,i) Maranian vs. Trunnell, 3 Met., 146 40 Mariner vs. Dyer, 2 Greenl. (2 Me.), 172. . . 506 Markillie vs. Kagland, 77 111., 98 200 Marklevs.Markle.4 Johns Ch.(N.Y.), 168. 410 Marks vs. Wliitkouski, 16 La. Ann., 341.. . 345 Marlatt vs. V\ ilson, 30 Ind., 240 507 Marsh vs. People, 15 111., 284. .21, 22, 35, 39, 40 Marsh vs. Scarborough, 2 Deveraux Eq., 551 134 Marshall Co. vs. Cook, 38 111., 44 .537 Marshall vs. Cunningham, 13 111., 20 .526 Murshall vs. Rose, 86 111., 374 94, 157, 171 Marshall vs Siihman, 61 111., 218 537 Marston vs. Wilcox, 1 Scam ,60 20 Martin vs. Martm, 1 V t., 91 168 Martin vs.McDonald,14B. Men iKy ),544. 3 7 Martiuvs. Railroad, 92 N.Y., 70 19 Marvin vs. Collins, 98 111., 510 141 >' rviu vs. Schilling, 12 Mich., 356 249 M isou vs. Bair, 33 111., 194 107, 113, 171 Mason vs. Caldwell, 5 v ilm., 196. . .51, 259, 315 Mason vs. Johnson, 24 111., 159 209 Mason vs State Bank, Breese, 141 526 Mason vs Tifl'auy, 45 111., 392 99, 100 Mason vs. Wait, 4 Scam., 127 177, 248, 249, 309, 310, 319 Mason vs Whitthorne, 2 Coldw. (Tenu.), 242 256 Massey vs. Massey, 2 Hill (S. C.) eh., 492. 2.57 Masterson vs Cheek, 23 111., 72 266 Mather vs Bush., 16 Johns., 233 429 Mathes vs. Bennett, 21 N. H. (1 Foster), 204 290 Mathews vs Cowan, 59 HI., 341 278 PARK. Matthews vs. Hoff, 113 IlL, 90 4, 159, 160 Mattock vs. Kice, 1 Heisk. (Tenn.), 33 2il2 Maxson vs. Sawyer, 12 Ohio, 195 230, 2.'58 Maxwell, Ex parte, 37 A la., 362 27 May vs. Calder, 2 Mass., 55 215 May vs. First Nat. Bank, 122 111., 551 461 May vs. May, 109 Mass., 252 365, 413 May vs. May, 7 Fla., 207 365 Maybiu, Jn re-, 15 Bank. Reg , 468 258 Mayuard vs. People, 135 111., 416 512, 513 Means vs. Earls, 15 111. Ap., 273 . . 262 Means vs. Harrison, 136 111., 49 77 Means vs Means, 42 lU., 50 173 Meek vs. Allison, 67 111., 46. ...17,20,28, .52 Meek vs. Perry, 36 Miss., 190 270 Meeker vs. Meeker, 75 HI., 260. . . . 182, 183, 191 Melia vs. Simmons, 45 Wis., 334 14 Melvin vs. Lisenhy, 72 111., 63 539 Menkius vs. I,ightner, 18 111., 282. .410,411, 419 Merch vs. Russell, 136 111., 22 .53 1 Meredith vs. Wait, 14 Allen (Mass.), 155. .. 5iK) Merrieks vs. Davin, 65 111., 319 527 Merrill vs. Atkm, 59 111., 19 147 Merriman vs Cuuuinaham, 11 Cush., 40. . '279 Merritt vs. Simpson, 41 111., 391 199, 329 Mersinger vs. Yager, 16 Iil. Ap., 26) 458 Mever vs. Rives, 11 Ala., 769 348 Meyer vs Temme, 72 111., 574 291 Meyres vs. Meyies, 2 McCord (S. C), 214. 362 Meyers vs. Meyers, 32 111. Ap., 189 37ll Mlchoud vs. Girod, 4 How., 503 357, 366 Mickle vs. Hicks, 19 Kansas, .578 160, 168 Miene vs. People, 37 111. A p.. 589 512 Milbum vs. Milburn, 60 1 owa, 411 196 Miles vs. Boyden, 3 Pick. (Mass.), 213. 214, 215 Miles vs. Wheeler, 43 lU., 123 . . 79, 174, 358, 360 Milk vs. Moore, 39 lU., 588 194 Millard vs. Haz-ris, 119 lU., 367 120, 131,138,16.5, 178, 210 Millard vs. Marmon, 116 111., 649 280 Miller vs. Anderson, 3 N. E. Rep., 605 511 Miller vs. Craig, 36 111., 109 416, 417 Miller vs. Jones, 39 1 11., 54 83, 85, 86 Miller vs. Kingsbury, 128 111., 45 84, 91 Miller vs. Miller, 3 Sergt. & R., 269 193 Miller vs. MiUer, 82 111., 463. .62, 92, 93, 94, 210 Miller vs. Receiver, 1 Paige, 444 19 Miller vs. Williams, 66 ID., 91 146 MiUigan vs. O'Connor, 19 ill. p., 487 .... 4.53 Milhken vs. Welliver, 37 Ohio, i'M 141 Mills vs. Fogal, 4 Edw., 5.59 1!»8 Mills vs. McCabe, 44 111 , 194 557 Miner vs. Miner, 11 Hi., 43 214, 218 Mings vs. Peop'e, 111 III, 98 oil Mitchell vs. Lunt, 4 Mass., 554 56 Mitchell vs. Mayo, 16 111., 83 4, 107, 112 Mitchell vs. Reynolds, 10 Mod., 85 277 Mock's Heiis vs. Stee'e, 134 Ala., 193 138 Modiu vs. Steward, 5 111. Ap., 533 277 Moffit vs. HOI. 131 III., '/SO 549 Moffit vs. Thompson, 5 Richardson's Eq , 155 85 Moflitt vs. Moffitt, 69 111., 641 5, 157, 169, 172, 175 Mohr vs. Tulip, 40 Wis., 66 417 Moline Water Power Co. vs. Webster, 26 111., 234 6, 99, 100, 167, 171 Mollins vs. Cottre'I, 41 Miss , 291 411 Monahan vs. Vandyi e, 27 111., 154 156, 160 Monk vs. Home, 38 Miss., 100 160 Monroe vs. People, 102 III., 406 22 IMoutgomery vs. Dunning, 2 Bradf., 22'i.. . 8fr' Montgomery vs. Smith, 3 Dana (Ky.), 599. 34t. Montsinger vs. Wolf, 16 III., 71 In': Moore vs. Bruuer, 31 111. Ap., 400. 356 Moore vs. Chapman, 2 Stewart, 466 41 Moore vs. Ellsworth, 51 111., 3.i8 172, 27t Moore vs. Holsmgton, 31 111., 243 .534 Moore vs. Hood, 9 liich. (S. C.) Eq,, 311. . 31t XXVI TABLE OF CASES CITED. 302 2-J4 PAGE. Moore vs. NeU. 39 111., 257 ... . IfiO, 161, 173, 176 Moore vs. People, 13 lU. Ap , 248 514 Moore vs. Pliilbrick, 32 Me., 102 9 Moore vs. Rogers, 19 111., 347 6, 100 Moore vs. Shields, 69 N. C, 50 287 Moore vs. Smith, 11 Rich irdsou's Law, 569 . 14 Moore vs. WaUis, 18 Ala., 458 348 Mootrie vs. Hunt, 4 Bradf ,176 2' IVIorehoiise vs. People, 18 111., 472 71 Morey's Appeal, 57 N. H., 54 408 Morgan vs. Gritiin, 1 Gilm., 565 5 Morgan vs Hannas, 49 N. Y., 667 290 Morgan vs. Hoyt, 69 111., 489 413 Morgan vs. Johnson, 68 111.. 190 253 Morgan vs. Morgan, 83 111., 196 98, 99, 131 Morgan vs. Morgan, 39 Barb. (N. Y ), 20. . 291 Morgan vs. Stevens, 78 111., 287 198 Morrell vs. Dickey, 1 Johns. Ch., 153. .203, 252 Morris vs. Hogle, 37 111., 150 157, 161, 167 Morris vs. Joseph, 1 \V. Va., 256 361 Morrison, Matter of, 22 How ,99 561 Morse vs Crawford, 17 Vt., 499 421 Mortimer vs People, 49 111., 473 2.58 Morton vs. Bailey, IScam., 213 112 Moses vs. Murgatrovd, 1 Johns. Ch., 119 . 72 Motsinger vs. Coleman, 16 111., 71. 101,171, 209 Mott vs. Molt. 11 Barb., 127 74 Moulton vs. Holmes, 57 Ca!., 337 76 Mozely Vi?. Lane, 27 Ala., 62 Mnir vs. Stewart, 1 Mm-ph. (N. C), 4i0 Mulford vs. Beveridge, 78 lU., 455 310, 314, 316, 317, 318 Mulford vs. Stalzeubach, 46 111., 303 311, 318, 319 MuUer vs. Benner, 69 lU , 108 251 Mullm, In re., 118 111 , 551 485 Mulvey vs. Johnson, 90 lU., 457 Ill Mimson vs. Newsou, 9 Texas, 1U9 230 Murphy, In re., 109 TU., 31 484, 485 JIurphy vs. Boyles, 49 111., 110 1-18 Murray vs. Carlin, 67 111., 28i; 4)9 Mui ray vs. Riggs, 15 Johns., 571 449 Myatt vs Myatt,44IU.,473 12 Mvattvs Walker, 44 lU., 4!-5 411, 417 Myer vs. Fales, 12 III. A p., •'•51 4.53 Myer \ s. McDougal. 47 111., 278. ... 154, 172, 177 Myersvs. Kiuzie,25IU.,2d 415 Myers vs. Wade, 6 Raud. ( Va. ), 444 287 McAlhster vs. Moye, 30 Miss., 2i8 222 McAllister vs. Olmstead, 1 Humph. (Tenn.), 210 210, 290 McAuuully vs. Mc.Auuulty, 120 HI., 26. .90, 196 McApee vs. Commonwealth, 3 B. Mou. (Ky. ,305 407 McBeth vs. Smith, 2 Brevard, SSI 23 McCabe vs. Fowler, 84 N. Y. , 314 36 McCagg vs. Woodman, 28 111., 84 449 McCahau's Ajjpeal, 7 Pa. St., 56 290 McOaU vs. Lee, 120 111 , '^61 100, 102, 113, 117, 119 McCall vs. Parker,13 Met (Mass.), 37 -'..5(17, 515 McCampbellvs McC^ampbell, 5 Lirtell, 9i. 75 McCauts vs Bee, 1 McOord(S C.)>.h.,3S3. 363 McCarty vs. Carter, 49 111., 53 276 McClauahau vs. Henderson, 2 A. K. Marsh (Ky.), 388 361 McClay vs. Norris, 4 Gilm., 370 ... . 221, 267, 309 McCleary vs. Menke, 109 111., 294 .... 3, 142, 338 McClennan vs. Kenedy, 8 Md ,230 270 McClure vs. MUler, 1 Bailey tq , 107 365 McClm-e vs. People, 19 111. Ap., 105 45 McConnell vs. Hodson, 2 Gilm., 640.54, 79, 364 McCounell vs. Mo(5onuell, 94 111., 296 57 McCouneU vs Smith, 23 111., 611 146, 171 McConnell vs. Smith, 39 ID., 279 146, 1"6 McCord vs. McKinley, 92 111., 11 93, 94 Mccormick vs. l.i»tler, 85 111., 62 415, 418 McCoy va. Morrow, 18 lU. 519.34, 107, 172, 276 McCoy vs. People, 05 lU., 439 505 PAGE. McCoy vs. Scott, 2 Eawle, 222 50 McCracken vs. Milhous, 7 lU. Ap., 169 438, 446 McCreary vs. Newberry, 25 111., 496 39 McCreedy vs. Mier, 64 lU., 495 6, 37, 50 McCullum vs. Chidister. 63 111., 477 ... 65, 198 McDaniel vs. CoiTeU, 19 111., 225 .... 163, 222 McDermaid vs. Russell, 41 lU., 490 221 McDermed vs. McCartland, Hardin, 18 49 McDonald vs. Fithian, 1 G Im., 269 365 McDonald vs. Meadows, 1 Mete. (Ky.;,507. 239 McDonald vs. White, 130 lU., 493 192 McDougald vs. Maddox, 17 Ga., 52 349 McDowell vs. OaldweU, 2 McCord. (S. C.) Ch., 43 290 McDowell vs. Cochran, 11 111., 31 169 McEldery vs. McKinzie, 2 Porter (Ala.), 33. 51 McElhaney vs. People, 1 111. Ap., 550. .4!J8, 499 McElheuy vs. Music, 63 lU., 328 36, 251 McFadden vs. Vincent, 21 Texas, 47 418 McFarland vs. People, 72 111., 368 506 McGarvey vs. Darnall, 134 lU., 367 23, 75, 10.5, 131, 171, 203, 206 McGary vs. Lamb, 3 Texas, 342 290 McGee vs. McGee, 91 III., .548 91 Mclntyre vs. Benson, 20 111., 500 446 Mclntyre vs. People, 103 111., 142 295, 349, 354, 358 Mclntyre vs. Sholty, 121 10., 660 422 McKannavs. Merry, 61 lU., 177. . ..253, 257, 289 McKean vs. Vick, 10 i 111., 37 J .^. . 172 McKinley vs. B aden, 1 ■• cam., 64 73, 207 McKinley vs. Iiwin, 13 Ala., 681 358 McKilhp vs. McKiUip, 8 Barb. I N Y ),.552. 414 McKim vs. Aulbacr', 13 i Mass ,481 35 McKinnon vs. People, llo 111 , 3i'5 ... 549 McLean Coal Co.vs. Long, 91 lU ,617.48,67, 143 McLean vs. Hosea, 14 Ala , 194 259 McLean vs. McBean, 74 111., 134 275 McLeod vs. First Nat. Bank, 42 Miss , 99. 362 McMahon vs. Allen. 4 E. D. >mith, 519. . . 126 McMillan vs. Lee, 78 lU. 443 215 McMillan vs. McNeill, 4 Wheat., 209. . . . 428, 477 McNabb vs. Wixou, 7 Nev., 1(;3 62 McNad vs. Zeigler. 68 111., 224 529 McNamara vs. Dwyer, 7 Paige Ch., 239 .... 204 McNees vs. Thomi son, 5 Bush. (Ky.), 6-6. 411 McNeil vs. McNeil, 36 Ala., 109 6,50, 120 McNickle vs. Henry, 4 Brews. ( Pa. 1, 150 287 McNish vs. Pope, 8 Rich. (S. C.) Eq., 112. 358 McSorley vs. McSorley, 4 Sand. Ch., 414 . 35 McVickarvs. Constable, Hopk.(N.Y.), 102. 2 4 McWiUiams vs. Mc Williams, 15 La. An., 88. 287 257 119 362 362 367 41 247 290 85 345 133 419 168 75 507 255 195 254 417 3 1 451 281 289 346 414 Nance vs. Nance, 1 S. C., 2^9 255, National Bank vs. Gage, 93 111., 172 National Bank vs. Hyde Park, 1"1 111., 595. Nease vs. Capehort, 8 \V. Va., 95 Neff's Appeal, 57 Pa. St , 91 Neil vs. Morgan, 28 111., 524 NeiU vs. NeUl, 31 A1 iss., 36 Neilsou vs. Cook, 40 Ala., 498 Nelson vs. Hajnier, 66 111., 488 79, 84, Nettletou vs. St,.te, 13 lud , 159 Neubright vs. Santmeyer, 50 111., 74 — 48, Newcomb vs. State, 37 Miss., 383 Newell vs Montgomery, 1J9 111., 58. . . 162, Newhall vs. 'J m-ney, 14 111., 339 . 39, 73^^74, Newman vs. Newman, 4 Maule & Sel., 70. . Newman vs. Reed, 50 Ala., 297 Newman vs. Willetts, 52 111., 98 Newson vs. Newsou, 5 I red. (N.C.) tq., 122 . Nichol vs Thomas, 53 Ind., 42 Nichols vs. Mitchell, 70 111., 258 Nichols vs. Pool, 89 111., 491 Nichols vs. Sargent, 125 111 ., 309 Nicholson vs. Spencer, 11 Ga., 607 Nicholson's Appeal, 20 Pa St., 50 Nickej-son vs. Gilliam, 29 Mo. , 456 TABLE OF CASES CITED. XXVII PAGE. Nicoll vs. Scott, 99 111., 535 30, 47, 179 Nimmo vs. Kuykendall, 85 111., 476 448 Noble, In the Matter of, 124 lU., 266 187, 188, 190 Nolan V8. Jackson, 16 111., 272 174 Norris's Appeal, 71 Pa. St., 106 361 Northern Line Packet Co. vs. Shearer, 61 111., 263 529 Northy vs. Johnson, 8 Ga , 236 367 Norton vs. Cook, 9 Conn., 314 429 Norwood vs. Hardy, 17 Ga., 595 408 Nutz vs. Butter, 1 Watts (Pa.), 229 269 Oakley, Matter of, 2 Edw. (N. Y.l, 478 .... 363 Obert vs. Hammel, 18 N.J. L. (3 Har.l, 73. 358 O'Brien vs. State, 14 Ind., 469 505 O'Connor vs. O'Connor, 52 lU., 316 1(!8 Offutt vs. Offutt, 3 B Monroe, 16 .' 197 Ogden vs. Saunders, 12 Wheat., 212 477 Oglesby Coal Co., vs. Pasco, 79 111., 164 . 142 O'Halloran vs Fitzgerald, 71 111., 53 361 O'Hara vs. Jones, 46 111., 288 454 OUver vs. Forre.'iter, 96 lU., 315 81 O'Nell's Case, 1 Tuck. (N. Y. Sur.i, 34 345 Orcutt vs. Orms, 3 Paige, 459 33 Ordi'onoux vs. Helie, 3 Sand. Ch, 512 204 O' Hear vs. Crum, 135 111., 294 12 Orthweiu vs. Thomas, 127 III., 554. . ..142. 145 Osborn vs. Bank, 120 111., Ill 196 Osbom vs Mnss, 7 Johns., 161 66 Osborn vs.' Kabe, 67 lU., 108 71 Osborne vs. Gibbs, 27 111. Ap ,240 458 Osborne vs. WUliam-, 34 lU. Ap.,422. .453, 4-58 Osgood vs Manhattan Co., 3 Cow., 612 71 Owens vs. Peebles, 42 Ala., 338 287 Owens vs.Walker, 2Strobh.(S.C.) Eq.,289. 289 Paddock vs. Bates, 19 III. Ap., 471 4^4 Paddock vs. Stout, 121 HI., 571 454, 4.''9 Padtield vs. Padfield, 78 111., 16 91 Padtield vs. Pierce, 72 lU., 500 27-i, 272 Page vs. Dennisou, 1 Grant, 5/7 511 Page, In the Matterof, 118 111., 576.126, 188, 193 Page vs. Naglee, 6 Cal., 241 301 Pahlman vs. Graves, 20 111., 4 '5 6, loO Pahhuan vs Smith, 23 111., 448 47, 179 Painter vs. Henderson, 77 Pa. St., 48 358 Palmer vs. Oakley, 2 Dougl. (Blich. ), 433 310 Parcher vs. Kussell, 11 Cush. (Mass.), 107 126, 127 Parker vs. Lincoln, 12 Mass., 16 281 Parker vs. Way, 15 N H., 45 511 I'armele vs. McGinty, 52 Miss., 476 319 i.'armele vs. Smith, 21 lU., 620 21 •, 250 Parrls vs. Cobb, 5 Rich. (S. C.J Eq., 450. . 418 Parsons vs. Ely, 45 111., 23i 142 Parsons vs. Lyman, 4 Bradf., 269 150 Paschall vs. u'ailman, 4 Gilm., 285. 116, 117, 15J Patten vs. Pear.sou, 00 Me., 220 360 Patterson vs. Johuson, 113 111., 559 280 Patterson vs. Patterson, 59 N. Y., 574 75, 100, 203 Patterson vs. Pullman, 104 111., 80 225 Patton vs. Thompson, 2 Jones' (N. C.) Eq.,285 317 Paulin vs. Howser, 63 111., 312 278 Paulk vs. State, 52 Ala., 427 499, 5' 13 Payne vs. Stone, 15 Miss. (7 Smeed & M.), 367 259 Paytou vs. Freet, 1 Ohio St., .544 222 Peacock vs. Haven, 22 lU., 23 103, 109, 113 Peak vs. People, 76 111., 289. . .498, 501, 502, 509 Peak vs. Pricer, 24 111., 104 222, 224 Peak vs. Shasted, 21 111., 137 221, 223, 267 Pearce vs. Swan, 1 Scam., 200 527 Pearl vs. McDowell, 3 J. J. Marsh ( Ky. ), 658 41'.» Pease vs. Hubbaid, 37 111., 257 487, 500 PAGE. Pease vs. Ko>)erts, 16 111. Ap., 634 244 Peaslee vs. Robbius, 3 Metcf. ■ Mass.), 104. 410 P.'Ck vs. Bonman, 2 Blackf. (Ind.), 141 ... . 286 Peck vs. Botsford, 7 Conn., 172 Ill Peck vs. Peck, 9 Yerger, 304 144 Pedau vs. Kobb, 8 Ohio, 227 252 Peebles vs. Watts, 9 1 'ana, 102 27 PeUiam vs. Taylor, 1 Jones' F^q , 121 134 Pendlay vs. Eaton, 130 111., 69 192 Pendleton vs. Trueblood, 3 Jones (N. C), 90 310 Penn vs. Brewer, 12 Gill & J. (Md.'*, 113. . . 308 Peuu & Wife vs. Heisey, 19 lU., 295. . ..271, 318 Pensoneau vs. Bleakley. 14 111., 15 3.58, 360 People vs. Abbott, !■ 5 10., 588 13 People vs. Admire, 39 lU , 251 38, 134 People vs. Allen, 80 111., 167 35 People vs. AUen, 8 111 .Ap., 17 41 People vs. Brooks, 123 111., 246. . . . 106, 110, 141 People vs. Brooks. 22 HI. Ap., 594 356 People vs. Christman, 66 111., 162 498 Peeple vs. Circuit Judge, 19 Mich., 296 314 People vs. City of Galesburg, 48 111., 485. . .534 People vs. Clute, 50 N. Y., 451 541 People vs. Coflman, 24 Cal., 230 419 People vs. Cole, 84 111., 327 4, 17, 75 People vs. Curry, 59 111 , 35 30 People vs. Falconer, 5 Sand., 81 42 People vs. Garbutt, 17 Mich., 9 420 People vs Gilbert, 115 111., 59 406, 427 People vs. Gray, 72 111., 343 4, 109 118 People vs. Green, 58 111., 236 .5(i8 People vs Greer, 3 I III., 213 482 Peojjle vs. Hamilton, 14 Reporter. 46 420 People vs. Hanchett, 111 III., 9) . .' 485 People vs. Housh, 66 111., 178 37 People vs. Himter, 89 111., 392 33, 120, 150 People vs. Jane, 27 Barb. ( N Y.), .58 508 People vs. Jennings, 44 ill., 4.'^8 200 People vs. Knickerbocker, 114 111., 539 189 People vs. Lewis, 96 Cal., .531 421 People vs. Lott, 27 III., 215 29, 41, 43, 129 People vs. Lott, 36 111 , 447 99 People vs. Mattesou, 17 III., 167 544 People vs. McGowaii, 77 111., 644 557, 501 People vs. McKee, 105 111., 588 70 People vs. Miller, 1 Scam., 85 38 People vs. Mitchtll, 44 Barb. (N. y.), 245 214 I'eoijle vs. Montgomery, 13 Abb. (N. Y. Pr.) N. S..207 421 People vs. Nixon, 45 111., "53 500 People vs. Noxon, -10 111., 30 498 People vs. Ogden. 10 lU. Ap , 226 514 People vs. Peck, 3 Scam., 118 68, 206 People vs. Phelps, 78 111., 148 "1, 108, 119, 120, 13: People vs. Pine, 2 Barb. (N. Y.), 560 421 People vs. Randolph, 24 111., 324 32, 43 People vs Smith, 17 111. Ap , 597 515 People vs. Smith, 31 (;al , 406 421 People vs. Smith, 51 111., 177 535 People vs. Starr, 50 111., .52 49^ 5 2 People vs. Steele. 7 HI. Ap., 20 :-.50 People vs. Stevens, 19 111. Ap., 405 512 People vs. Stewart, 29 111. Ap., 441 3.55 People vs. Summers, 16 111., 173 32, 43 People vs. Turner, 55 la , 280 214, 278 People vs. Volksdorf, 112 111., 292 511 People vs. Waite, 70 111., 26 537 People vs. White, 11 111., 341 6, 83, 85, S6, 101, 103, IdO, 109 People vs. Willianisou, 13 111., 660 482 People vs. Woodside, TZ 111., 407 499, 500 Peoria & R. I. R. R. Co. vs. Rice, 75 HI., .329. 69 Pepper vs Stone, 10 Vt., 427 346, 347 Perkins vs. FairMeld, 11 Mass., 227 176 Perkhis vs. Finnegan, 105 Mass., .501 345 Perry vs. Carniichael, 95 lU., 519 35, 214 XXVIII TABLK OF CASES CITED. PAGE. Peters vs. Pub. Admr., 1 Bradf., '200 H Peters vs. Siiellinaii, 18 III., :«0 181, 185 Pfershiiig vs. Fiilsh, 87 111., 2fiil 209 Phelps vs. Fiinkhouser, 30 111.. 401 4!), 1(!8 Phelps VH. Phelps, 72 111., 54.5 90, 91 I hel{)8 vs. Reader, 39 111., 172 3()3 Phillips vs. Davis, 2 Sliced. (Teun. (,520 2.57, 2S7 Phillips vs. State, 5 Ohio, 122 131 Phipps vs Jones, 20 Pa. St., 2()0 .53 Phffiiiix Ins. Co vs. Gudery, 2U 111. Ap., 161 12 Piatt vs. People, 29 lU., .54 5 '8 I'ickeus vs. Clayton, 7 Blackf. (lud.), 3'1. 815 Pierce vs. Brewster, 32 111., 2fi8 447, 449 Pierce vs. Carletoii, 12 111., 3G4 314 Pierce vs. McKeehan, 3 Watts & S. (Pa.), 280 304 Piggott's Case, 11 Coke, 27 .507 Pigsott vs. Kamey, 1 Scam., 145. . .132, 134, 135 Pike vs. People. 34 lU. Ap., 1 1 2 513 Pile vs. McBratney, 15 111,314 139 Pim vs Downing, 11 Sergt. & R. (Pa.), 06. 257 Piuckard vs Muith, 6 Lilt. (Ky.), 331 204 Pinkstaff vs. People, 59 III., 148 29, 43 Piuiieo vs. Goodspeed, 120 111., 524 71 Piper vs. Moiilton, 72 Me., 155 190 Piatt vs. Uobhins, 1 Johnson's Cases, 270. . I ]J Plimpton vs. Richards, 59 Me., 115 5(1 Porter vs. Tndor. 9 Conn., 411 2.54 Poston vs. Young, 7 J. J. Marsh. (Ky.). 501 233 Potter vs. Iliseox , 30 Conn , 508 200 Potter vs. Potter, 41 111., 80 193 I'otts vs Davenport, 79 III. ,4.55 71 Potts vs. Smith, 2 Hawle, 301 39 PrHtt vs. McJunliiii, 4 Hich. (S. C), 5 290 Pratt vs Trustees, 93 111., 475 9i) Pratt vs. Wright, 1 3 Gratt. ( V a. ), 175 2 40 Preble vs. Longfellow, 48 Me. , 279 288 Prentice vs. Delion. 10 Allen, 353 lOl Prescott vs. Cass, 9 N H., 93 277 Preston vs. Hodgeii, .50 111., 56 205 Preston vs. SpauUUng, 120 111., 208 .454, 4.50, 459 Prevo vs. Walters, 4 Scam., 35 3i;2 Price vs. Crone, 44 Miss., 571 221 Price vs. Evans, 30 Mo., 30 305 Price vs. Johnson, 1 Ohio St., 390 312 Price vs. Mace, 47 Wis ,23 105. 200 Priest vs. > uinmings, 10 Wend., 616 558 Priest vs. Watkius, 2 Hill, 225 45 Pritchett vs. People, 1 Glim., .525. ... 16, 17, 38 Probate Court vs. Strong, 27 Vt., 202. .238, 240 Proctor vs. Wanamaker 1 Barb. Ch., 302 ... 20 Propstvs. Meadows, 13 111., 157... 4, 104, lii7 Pub. Admr , vs. Watts, 1 Paige, 347 U Pugh vs. P igh, 9 Iiid., 132 303 Pursley vs. Havs, 22 Iowa, II 312 Putnam vs. Richie, Paige ( N. Y. ), 390 . . . . 251 Pusey vs. Clemsou, 9 Serg. & R., 208 34 Puzey vs. Senier, 9 Wis., 370 359 Quigley vs. Roberts, 44 111., 503 ... . 221, 222, 265 Rabb vs. Graham, 43 Md., 9 193 Raconillat vs. Kequeeua, 36 Cal., 051 . . 287 Rafferty vs. McGowan, 130 111 , 021. . . ..535, 530 Kailsback vs. Williamson, 88 111., 494. .270, 292 Ralston vs. Wood, 15 111., 159 37, 42, 107, 114, 126, 208, 348 Ramsdell vs. Siegerson, 2 Gilm., 78 449 Randolph vs. People, 130 111., 533 209 Rankin vs. Barcroft, 114 111., 441 309 Rankiu vs. Millei-, 43 Iowa, 11 .... 311 Rankin vs. Porter, 7 Watts (Pa. ,387 305 Rankin vs. Rankin, 36 111., 293 197 Kapalje vs. Norseworthy, 1 Sandf. (N. Y.) Ch , 390 291 Happ vs. Phoiuix Ins. Co.. 113 111., 390 99 Rappelyea vs. Iiu.s.sell, 1 Dailey, 214 100 Battoou V8. Ovei-acker, 8 Johns., 12C 45, 57 PAGE. Rawlings vs. Bailey, 15 111., 178 314 Rawlings vs. People, 102 111., 475. .498, .509, 512 Rawson vs Rawson, 52 111., 02 146, 148 Ray vs. Haines, 52 lU., 485 276 Ray vs. Virgin, 12 111., 216 54, 79 Raymond vs. Vaughn, 128 lU., 350 427 Raymond vs. Wymau, 8 Me., 385 412 Kaj-nor vs. Pearsoll, 3 Johns. Ch., 578 36 Reagan vs. Long, 21 Ind , v64 57 Ream vs. Lynth, 7 BradweU, 161 348 Kebham vs. Mueller, 114 HI., 343 20, 186 Rector vs. Reavill, 5 111. Ap., 2 <2 93, 94 Rector vs. Rector, 3 Gilm., 105 268 Reddick vs. State Bank. 27 lU., 148 26i Redmond vs. Collins, 4 Devcraux. 430 189 Reed vs. Colby, 89 111., 104 276 Reed vs. Emery, 8 Paige Ch.. 417 447 Reed vs. bailroad Co , 18 111., 403 66 Reed vs. Ryburu, 23 Ark., 47 29 i Reed vs. Wil.«ou, 13 Mo., 28 414 Reeves vs. Stipp, 91 lU., 609 101 Reid vs. Morton, 119 111 , 118 321, 322 Reitz vs. Cover, 83 111., 29 110 Reitz vs. People, 72 111., 435 239 Heitzel vs Miller, 25 111., 07 102, 107, 110 Remickvs.Butterfield, 31N H. (2 Frost), 70. 358 Remick vs Einig, 42 111., 342 85 Renew vs. Butler, 30 Ga., 954 358 Reynolds vs. Lamont, 45 Ind., 308 499 Reyuo ds. Matter of, 18 N. Y. Sup. Ct., 41. 220 Keynolds vs. McCnrry, 100 111., 350 319 Reynolds vs. People, 55 111., 328.7, 116, 134, 144 Reynolds vs. Walker, 29 Mass. (7 Gushing), 2.50 250 Reynolds vs. Wilson, 15 111., 394 171, 172, 174, 317 Rhett vs. Mastin, 43 Ala., 86 221 Rhoads vs. Uhoads, 43 111., 239 163, 164, 184, 221, 222, 223 Rhyiie vs. Hoffman, 6 Jones' Eq., 335 511 Ricaud, In re., 13 Legal News, 326 144 Rice vs. Parkman, 16 Mass., 320 309 Rice vs Rice, 108 III., 199 35.5, 369 Ricer vs. Siioddy, 7 Ind., 442 .... 16 Rich vs. People, 60 111., 514 493, 499 Richards vs. Dutch, 8 Mass., 506 204 Richards vs. Griggs, 16 Mo., 416 .50 Richards vs. Miller, 02 111., 417 146 Richards vs. Nightengale, 9 Allen, 149 120 Richardson vs. Peoi)le, 85 111., 405 383, 414 Richardson vs. Peojile, 31 111., 170 506, 507 Richardson vs. State, 55 Ind., 3il 253 Richardson vs. spencer, 18 B. Mon. (Ky.), 450 361 Rietz vs Coyer, 83 111., 29 110 Rigg vs. Wilton, 13 111., 15 192, 193 Riley vs. Loughrey, 22 111., 98 56 Riley vs Morely, 44 Miss., 37 204 Riley vs. Riley, 3 Day, 74 203 Riughouse vs. Keever, 49 111., 470 14, 148 Riugo vs. Binns, 10 Peters, 206 358 Risley vs. Fellows, 5 Gilm., 531 67, 68 Robbius vs. Butler, 24 111., 387 358 Robbinsvs. Robbins, 2Iud.,74 221 Roberts vs. Adams, 2 S. C, 337 33 Roberts vs. Roberts, 2 Bulst., 130 199 Robertson vs. Uoberson, 1 Root (Conn.), 51 . 269 Robinson vs. Brewster, 30 N. E. Rep., 683 (111.) 188 Robinson vs. .Nye, 21 111., 592 466 Robuett vs. People, 16 111. Ap., 209 513 Rock vs. Haas, 110 111., 528 92 Rockwell vs. Young, 60 Md., 503 57 Rodgers' Appeal, 10 Pa. St., 36 257 Rodgers vs. Higgins, 48 111., 211 266, 267 Rodgers vs. McLean, 31 Barb. (N. Y.),304. 412 Rodgers, vs. People, 34 111. Ap., 448 515 Rodrigaa vs. East River Savings Inst., 03 N. Y., 469 14 TABLE OF CASES CITED. XXIX PAGE. Kodrisae vs. East River Savings lust., 76N. Y., 316 16,4(5, 51, 75 lloe vs. Tavlor, 45 111., 485 ISJ, 193 Kolaud'B Heirs vs. liarkley, 1 Brock , :156 . '261 KoodhouBe vs. Hoodhouse, 132 111., 3ii0 ... 2S1 Koosebooni vs. Whitalier, 132 111., 81 3'?0 Roosevelt vs. Hoosevelt, 6Abb.(N.Y I N. Cas., 447 367 Root, In the Matter of, 5 N. Y. Leg. Obs., 449 '1 Rorbackvs.VauBlarcom, 20N. J Fq.,4 1. '242 Rosenthal vs. Prussing, 108 111., 128 18 Koseuthall vs. Magee, 41 lU , 37U 104, 10b Roseuthall vs. Reuulck, 44 lU., 202 1<^5. l™, 171, 276 Ross vs.' Cobb, 9 Yerg. (Tenn.), 463 215 l-ossvs. Gill, 1 Wash. (Va ), 87 251 Ross vs. People, 34 111. Ap., 21 51.3 Koss vs. Sutton, 1 Bailey 1 aw, 126 75 Koth vs. Jacobs, 21 Ohio, 616 500 Koth vs. Roth, 104 111., 35 H9 Rouutree vs. Talbott, 89 111., 216 109 Rowan vs. Kirkpatrick, 14 111., 1 . . 36, 39, 48, 52, 61, 62, 63, 101, 2.50 Rowaud vs. Carroll, 81 111., 224 ... 160, 165, 174 Kowo vs. Bowen, 28 111., 117 529 Howth vs. Howell, 3 Ves., 565 36 Uoyers' Appeal, 11 Pa. St.. 36 260, 29 > Rozier vs. Pagan, 46 111., 404 167 Kubottom vs. Morrow's Admr., 24 Ind ,202. 48 Rucker vs. Moore, 1 deisk. (Teuu.), 726. .. 221 Rucker vs. Redmond, 67 111., 187 36 Ruffiu vs. Farmer, 72 111., 6,5 17, 71 Russell vs. Hoar, 3 Met. (.Mass.), 187 11 iiussell vs. Hubbard, 59 111., 335 51, 101 , 102, 103, 105, 111 lULSsell vs. Madden, 95 111., 485. . .. 19, 150 Huston vs. Ruston, 2 Dallas, 243 65 Uutherford vs. Morris, 77 111., 307.182, 193, 194 Rutter vs. Puckhofer, 9 Bosw. (.N. Y.), 638. 223 Kyau vs. Dimcau, 88 111., 114 168 Ryan vs. Jones, 15 111., 1 202, 275 Sabinvs. Gilman, 1 N.H.,193 .-abines vs. Jones, 119 Mass., 167 Sackelt vs. Mausfteld, 26 111., 21 . .446, 447, Sadler vs. Rose, 18 Ark., 600 Sale vs. Crutchfield, 8 Bush. (Ky.), 636 ■saltmarsh vs. Beeue, 4 Port. (Ala.), 2»3 S muel vs. Thomas, 5 Wis., 549 Saudford vs. Bliss, 12 Pick., 116 Simt'ord vs. Wagtjamau, 14 La. Ann., 852. . Saiikey's Apieal, 55 Pa. St., 496 .. . Sargeant vs. Courier, 66 111., 245 Saurez vs. Mayor, 2 Sand. Ch , 173 Savage vs. Dickson, 16 Ala., 2.'S6 Saxtou vs. Chamberlain, 6 Pick., 422 Kay vs. Barnes, 4 Serg. & R (Pa.), 112 Scanlan vs. < obb, 85 111., 296 Scharf vs. People, 134 111., 240 Scheel vs. Kidman, (58 111., 193 Ill, Scheel vs. Eidman, 77 111., 301 . . . 116, 239, Schneider vs. Manning, 121 111., 376 Sclmell vs. Chicago, 38 111., 382 .... 11, 16, 18, 1.58, 162, 174, 271, Schotield, Estate of, 99 lU., 513. . ..52, 123, Schwartz vs. Wendell, Walk. Ch. (Mich.), 267 Schweizer vs. Tracy, 76 111., 345 Sconce vs. Whitney, 12 111., 1.50 Scott vs. Freeland, 15 Miss. (" Snieed & M ), 409 Scott, In tlie Mattel- of, 5 N. Y. Uegal Obs., 378 Scott vs. Seailes, 7 Sniedes & M., 498 . . Scott vs. White, 71 111., 287 Scoville's Estate, In re., 20 I'l. Ap., 426.8. Seago vs. People, 21 111. A p., 283 St arle vs. Galbraith, 73 111., 269 252 504 449 242 503 358 101 4.50 288 5 528 150 259 127 257 416 .fill 286 286 182 318 130 359 448 164 356 4:6 PAGE. Sebastian vs. .lohnson, 72 HI., 282. .49, 168, 174 Seegar vs. State, 6 Harris & Johnson, 162. . 51 Selb vs. Montague, 102 III., 446 319 Selectmen of Boston vs. Boyleston, 2 Mass., 384 205 Seleve vs. People, 40 111. Ap., 449 3.56 Sellews' Appeal, 10 Am. law Heg., 708. ... 128 Selz vs. Evans, 6 111. Ap., 4()6 448 Sessions vs. KeH, 30 Miss., 458 216, 230 Sever vs. Russell, 4 Cush., 513 126 Sewell vs. SUnglufl', 13 Reporter, 526 196 Shaefer vs Gates, 2 B. Mou. (Ky.i, 453. . .. 221 Shanks vs. Seamouds, 24 Iowa, 13 310 Shaw vs. Berry, 35 Me., 270 46 Shaw vs. Buruey, 1 Ired. (N. C.) L., 148 . . 414 Shaw vs. Moderwell, 104 111 , 64 192 Shelburn vs. Robinson, 3 Gilm . .597 135 Sheldon vs. Estate of liice, 30 Mich.,296.2n3, 368 Sheldon vs. Reihle, 1 Scam., 519. .527, o29, 530 Sheldon vs Wright, 7 Barb., :^9 15 Shellabarger vs. Wyman, 15 Mass., 322 57 Shepherd vs. Bank, 67 111., 292 103 Shepherd vs. Carriel, 19 111., 313 184 195 Shepherd vs. Rhodes, 60 111., 301 17,101, 109 Shepherd vs. Speer, 29 N. E. Rep., 718 ( Ul.). 138 Shepherd vs. Spremont, 111 III., 631 165 Sherman vs. Dutch, 16 111., 283 50 Sherman vs. Lehman, 137 111., 94 202 Sherry vs. Sansbury, 3 Ind., 3.'0 255 Sherwood vs. Wooster, 11 Paige, 441 15 ) Shevalier vs. Seager, 121 111., 254 191 Shewell vs. Keen, 2 Wharton, 322 50 Shibla vs. Ely, 2 Hals. (N. J.) Ch., 181.... 362 Shields vs. Smith, 8 Bush. iKy.), 601 38 Shifl' vs. Shift', 20 La. Ann ,269 25H Shockley vs. Fisher, 14 Reporter, 89 445 Shoematevs. Lockridge,53Ill ,504'l57,16O, 168 Short vs. Johnson, 25 111 , 489 51, 126 Shultz's Appeal, 30 Pa. St., 397 286 Shultz vs. Pulver, 3 Paige, 182 . .48, 00, 72, 150 Shutt vs. Carloss, 1 Ired. (N.C.)Eq., 232 291, 347 Silms vs. Norris, 5 Ala ,42 258 Simmons vs. Adams, 15 Vt., 677 508 Simons vs People, 18 111. Ap., 588 549 Simpson vs. Gonzales, 15 Fla., 9 345 Simpson vs Simpson, 114 111., <>03 142 Sims vs. McCIure, 8 Rich. (S. C ) Kq., 2^'6. 419 Sinclair vs. Jackson, 8 Cowen (N. Y.), 543. 317 Sisk vs. Smith, 1 Gilm., 503 14k Skidmore vs. Romaiue, 2 Bradf. (N. Y.) 122. 419 Skinner vs. Newberry, 51 HI , 203 148 Slaughter vs. Froman, 5 T. B Monroe, 19 39, 41, 136, 1.50 Sloan VS. Graham, 8 •> 111., 26 161, 175 SI ;o vs. Law, 3 Blatchf., 459 3t)l Sloo VS. Poole, 15 111., 47 61, 101, 103 Smith vs. Beau, 8 N. H , 15 290 Smith vs. Bell, 2 Peters, 74 199 Smith vs. Brittiugham, 109 111., 540 17() Smith vs. Dennisou, 91 111., 58.' 2 I8, 209 Smith vs. Dennisou, 101 111 , 531 430 Smith vs. Deuuison, 112 111., 367 200 Smith vs. 1 leuuy, 34 Mo., 219 292 Smith, Ex p rte, 8 Bla.ikf , 395 501 Smith, Experte., 1 Hill (S. C.) Ch., ItO. . .. 337 Smith vs. Fortescue, Burbce's Eq., 127 53 Smith vs. Frost, 70 N Y, 63 f* Smilii vs. Hilemau, 1 Scim., 323 171, 17 i Smith vs. Hutchinson, 108 111., 662 .49, 198 Smith vs. Kramer, 5 Pa Law. J. Hep-, 22(.. 410 Smith vs. Lawrence, 11 Paige, 206 13l> Smith vs. McCoiiuell, 17 111., 135.49,.50, 146, IbH smith vs. McLaughlin, 77 111., 596 108 Smith vs. People, 44 111., 16 ..... . . . . . 2.V2, 540 Smith vs. People, ex- re/-., 60 111., 37.T. ... 4id Smith vs. Race, 27 HI., 387 ^"^ . , ! Smith vs. Sackett, 5 Gilm , 534 •^-' Smith vs. Smith, 55 111., 2f4 7'.' XXX TABLE OF CASES CITED. PAGE. Smith 78. Smith, 69 lU., 308 224 Smith vs. Smith, 13 Grant Ch., 81 82 Pmilh vs. Smith, 4 Johus Ch. ( N. Y. , 281. 255 Smith vs. Warden, 7 Pa. St.. 424 318 Smith vs. Whitaker, 11 lU , 417 42 triith vs. Wilmington Coal Co., 83 111., 498 53, 99 Sniylev vs. Reese, 53 Ala., 89 l-i5, 131 Smythe vs. Taylor, 21111 . 296 2il0 Sueed vs. Hiely, 29 Ga., ^Sl ^87 Snook vs. Sutton, 5 Halst., 133 251 Snow vs. Benton, 28 111., 3 6 410, 411 Snydam vs. Broadnax, 14 Peters, 75 477 Somerset vs. Dighton, 12 Ma?s., 38 214 Southhall vs. Clark, 3 Stew. & P. ; Ala.), 388. '^92 Speers vs. Sewell, 4 Bush. (Ky.), 239 417 Speight vs. Kuight, 11 Ala., 461 242, 345 Spellman vs. Dowse, 79 111., 66. . . . 310, 312, 315 SpeUman vs. Mathewson, 65 111 , 3''6 314 Sxjencer vs. Boanlman, 118 111., 553 94 Spencer vs. Laugdon. 21 111., 192 207 Sperry vs. Fanning, 80 lU., 371 258, 259 Spivey vs. State, 8 Ind ,405 502 Spratt vs. Spratt, 4 Peters, 4C6 560 Spring vs Kane, 86 111., 580. .312, 313, 315, 316 Staats vs. Bergen, 7 N. J. Eq , 551 359 Stacey vs. Thrasher, 6 Howard, 44 1(;5, 1 1 1 Stafford, Matter of, 11 Barb. ( N. Y.), 353. . 2.56 Stamper vs. Hooks, 22Ga.,603 197 Stanley's Appeal, 8 Pa. St., 431 258 St.uleyvs People, 84 lU., 212 5i 9 Stark vs. Brown, 101 111., 395. .49, 104, 168, 218 Stark vs. Gamble, 43 N. H., 405 2.56 State vs. Baker, 8 Md., 44 '^91 State vs. Brandon, 8 Jones ( N. C.) Law, 463. 421 State vs. Brinyea, 5 Ala., 241 419 State vs. Broailwell, 09 N. C, 411 503 State vs. Christmas, 6 .Jones ( N. C. ) L. , 471 . 421 State V8 Church, 5 Oregon, 375 544 State vs. Clark, 16 Ind , 97 288 State vs. CoUier, 72 Mo. ,13 544 State vs. Crawford, 11 Kansas, 32 420 State vs. Hall, 63 Miss., 626 348 State vs. Herman, 13 I red. , 502 511 State vs. Humphreys, 7 Oliio. 223 238 State vs. Hyde, 29 Coun., 564 412 State vs. Ingram, 4 Hayw. ( Tenu.), 221 ... . 501 State vs Klinger, 43 Mo., 127 . 420 State vs. LawTencp, 57 Me., 574 419 State vs. 1 ean, 9 Wis., 279 541 State vs. Mirier, 2 Ua.. 43 419 State vs. Martin, 69 N. C , 175 240 State vs. Mason, 2 Nott & M. ( 1 S. C), 425 . 5 7 State vs. McCoy, 34 Miss., ; 3 418 State vs. Newell, 36 Wis., 213 544 State vs. Palin, 63 N. C, 471 499 State vs. Peunev, 10 Ark., 621 559 State vs. Perkins, 1 Jones (N, C), 325 .... 240 State vs. Pratt, 4ii Iowa, 631 5U5 State vs. lleddick, 7 Kansas, 143 411 State vs. Komaine, 58 Iowa, 48 511 State vs. Sewell, 3 Jones (N. C ; L-, 2i5 421 State vs. Shoemaker, 62 Iowa. 353 511 State vs. Smith, 54 Iowa, ll'4 511 State vs. Smith, 55 Ind., 3 5 501 State vs. Strange, 1 Ind., 538 291. 349 State vs. Thorn, 28 Ind., 3 6 3 o State vs. Ueland, 30 Miuu., 277 7, 141 State vs. Wilson, 21 Ind., 273 499 State vs. Wilson, 10 Ired., IM 511 State vs. Whittemore, 50 N. H , 245 SU Stebbins vs. Palmer, 1 Pick., 71 13 Steele, In re., 65 111., 322 100, 272, 284, 285, 286, 315 Steele vs. Steele. 89 111., 51 174. 208 Stehiman vs. Steiumau, 105 111., 348 09 Stephens vs. People, 89 111., 338 535, 5 6 Stephenson's Appeal, 22 Pa. St., 318 2!i2 Stevens vs. Gage, 55 N H., 175 36 39 200 PASE. Stevens vs. Gaylord, 11 Mass., 256. .34,203, 204 Stewart vs. Crabbin. 6 Mumf . ( Va.), 280. .. . 218 Stewart vs. Howe, 17 lU., 71 268 Stewart vs. Kearney, 6 w atts, 453 05 Stewart vs. M oiTison, 38 Miss., 417 233 Steyer vs. Morris, 39 III. Ap., 38:^ 282 Stiger vs. Bent, 111 111., 336 50, 37 Stigers vs. Brent, 60 Md., 214 413 Stiles vs. Bm-ch, 5 Paige, 132 127 StiUman vs. Young, 16 IIl.,318.5l, 101, 113, 131 StillweU vs. Meh-ose, 15 Hun., 378, 381 .... 49 Stillwell vs. Mills, 19 Johns (N. Y.), 304. . . 349 Stires vs. Stires, 1 Halstead's Ch ,224 65 Stockdalevs. Conway, l4 Md., 99 11 Stokes vs. Goodykoontz, 26 N. E. hep., 391 (111.) 121 Stolz vs. Doering, 112 lU., 234 145, 146 Story, In re., 120 111., 244 189, 190 Stone vs. Clark, 40 111.. 41 1 103, 110 Stone vs. Damon, 12 Mass ,488 411 Stone vs. Scripture, 4 Lans. ^N. Y.), 186 . . 204 Stone vs. Wood, 16 III, 177 49, 113, 114, 170, 171, 448 Stose vs. People, 25 111., 60u 39 Stowe vs. KimbaU, 28 111., 94 156, 1.57, 16\ 166, 173, 175, 177 Strawnvs. Strawn,.5;iIll.,2S3 90,92, 91 Strode vs. Broadwell, -6 111., 409 481 Strong vs. Lord, 107 lU., 25 «7 Stt ong vs. Lord, 107 1 11 , 26 99 Strong vs. Strong, 131 111., 210 94 Stubblelield vs. McKaveu, 5 Smedes & M., 130 Strubher vs Belst y, 79 111., 307 .... Stumph vs. Pfeifler, 5S Ind., 472 409, 412 Stiirgis vs. Crowuingshield, 4 Wheat , 125. . 428 Sturgs vs. Ewing, 18 lU , 176 148 Sullivan vs. Blackwell, 28 Miss., 737 2,0 Sulhvan vs. Sullivan, 42 I 1., 315 221 Sumner vs. Williams, 8 Mass., 165 176 Sunday vs. Gordon, Blatclif. & H , 569 414 Sunderland's Estate, 6 > Iowa, 732 147 Suppiger vs. Seybt, 23 lU. Ap., 468 453 Sutherland vs Harrison, 86 111., 363 60, 75, 103, 129, 148 Sivayzee vs. Miller, 17 B. Mou (Ky.), 564. . 337 swearingen vs. GuUck, 67 111., 2 )8 156 Sweet vs. Jacobs, 6 Paige (N. Y. , 355 364 Sweet vs. Sherman, 20 Vt., 23 5:'- Sweet vs. Sweet, Spear's (S C ) i!h., 309.. 3IB Sweezey vs. Wilhs, 1 Bradf ., 495 H Swifyts, In the Matter of, 47 Cal., 629 346 Swiuton vs. Bailey, 33 L. T. Kep. (English), .'-i64 184, 195 Switzer vs. Skiles, 3 Gilm , 529 ... . 358, 361, 366 Tabb vs. Boyd, 4 CaU (Va.), 45 i 291 T Ikington vs. Turner, 71 111., 234 .533, 535,536, Taimer vs Skinner, 11 Bush. Ky.), 12J Tate vs. Tate, 89 111.. 42 I Tatum vs. McLUlau, 50 Miss., 1 Taubenham vs. Dunz, 125 111 , 524 Taylor vs. Delaucy, 2 Cai ('.,143 Taylor vs. Dudley, 5 Dam (Ky.), 308 Taylor vs. Fickas, 6 1 Ind.. 107 Taylor vs. Hite, 16 Mo., 142 Tavlor vs. Hopkins, 40 111., 442 Tavlor vs. Kilgure, 33 •'la., 214 'I aylor's Will, Jn re., 55 lil., 252 147, Teague vs. fiendy, 2 McCord Ch., 207. . . . 'Jelford vs. Boggs, 63 111., 498 Teunv vs. Evans, 14 N. H., 313 'I'erwilliger vs. Brown, 5 Hand (N.Y.), 237. Teyu, Matter of, 2 Kedf. (N. Y. ), 306 Thomas vs. Adam«, .59 111., 223 Thomas vs. Burrus, 23 Miss., .550 22, Thomas vs. Miuot, 10 Gray, 263 Thomas vs. Peoijle, 107 111., 515 544 292 192 358 199 11 418 66 260 174 290 148 126 94 258 175 257 265 23S 100 14 TABLE OF CASES CITED. XXX I PAGE. Thompson vs. Brown, 4 Johns. Ch., 619 36, 48. SI Thompson vs. Reed, 48 111., 118 109 Thompson vs. Thompson, 1 Bradf., 24. . . 6 ) 'ihomp.son vs. WiUiite, 81 lU , 356. . . .527, 5'J8 'I horn vs. Watson, 5 Gilm., 26 101, lli3 Thomley vs. Moore, 106 111., 496 68 Thornton vs. Bradshaw, Breese, 13 50 Thornton vs Heirs of Henry, 2 Scam ,218. 2 7 Thornton vs Melu-ing, 117 111 , 55 73 Thorp vs. Goewey, 85 111 , 612 113 Thorp vs. McCullum, 1 Gilm., 614 174, 358, 360, 361, 366 Thorpe vs. Starr, 17 111., 199 H7 Tibbs vs. Allen, 27 111., 119 223 Tilley vs. Bridges, 105 111., 336 176 Tioga Co. vs. South Creek Tp., 75 Pa St., 433 511 Titeomb vs. Vautyle, 84 lU. . 371 . . . . 410, 417, 418 Tobey vs. Miller, 54 M e. . 480 ^1 Tobiuvs Addison, 2 Strobh. (S. O.), 3.... 258 Toug vs. Marvin, 26 Mich., 35 243 Torrev vs. Black, 65 Barb. (N. Y.i, 417. .. . 249 Townsend vs. Kendall, 4 Minn., 413. . .216, 252 Townsend vs. Ratclitl, 44 111, 446 5 Townsend vs. State, 13 lu.i., 357 504 Ti aeey vs. Haddeu, 78 111., 30 110 Tracey vs. Howe, 119 Mass., 228 506 Trammell vs. Tramniell, 20 Texas, 406 252 Traver vs. Rogers, 16 111. Ap., 372 461 Treadwell vs. McKenn, 7 Baxter c Tenn. ), 201 362, 3(13 Treat vs. Fortune, 2 Bradf., 116 114 Trenton Banking Co. vs. Woodruif, 1 Gr. Ch., 117 361 Trimble vs. Dodd, 2 Tenn Ch., 500 346 I rish vs. Newell, 62 111., 196 182, 192 Trogdon vs. Mm-phey, 85 111., 119 185 Troupe vs. Rice, 55 Miss., 278 52 Trueman vs. Hnrd, 17 Rep.,40 277 Tucker vs. Clisbv. 12 Pick., 22 450 Tucker vs. People, 87 lU., 76 33 Tuller, ill re., 79 111., 99 182, 196 Tunlson vs. Chamblin, 88 111., 378 266 Turley vs. Logan Co , 17 111 ,151 535 Turner vs. Egertou, 1 Gill & -Johnson, 430. 129 Turner vs. Jenkins, 79 111., 229 223 Turner vs. Mason, 14 M. & W., Ill 216 Turuev vs. Gates, 12 111., 141 106, 119 Turnev vs. Turney, 24 111., 625 112, 157 Turuey vs. Young, 22 111., 253 112 Tuttle vs. Garrett, 1 S 111 , 354 265 Tuttle vs. Garrett, 74 lU , 444 2.>3 Tuttle vs. Wilson, 24 111., 553 481 Tutorship of Hughes, 13 La. Ann., 380 242 Tvler vs. Daniel, 65 111., 316 92 Tvler vs. Tyler, 19 111., 151 196 Tyson vs. Postlewait, 13 111., 727 148 Underwood vs. Brockman,4 Dana (Ky.),309. 2.59 United States vs. Brown, Gilpin's Rep., 178. 5. S United States vs. CoUins, 1 Cranch. tCt.), 592 .503 United States vs. Nichols, 4 Cranch. (Ct.),290 346 United States Mortgage Co. vs. SpeiTy, 138 U. S., 313 330 Union National Bank vs. Bank of Com., 94 111., 271 446 Union R. R. Co. vs. Shacklet, 119 111., 332. 73 Unknown Heirs of Laugworthy vs. Baker, 23 111., 484 12,18,34,107,110,172, 210 Upstoue vs. People, 1U9 lU., 169 ... . 423, 424, 425 Van AlsHne vs. Lemons, 19 111., 394 109 \ an Auken, Ex parte, 10 N. J. Eq. (2 Stock.), 186 407 Van Dusen vs. Sweet, 51 N. Y , 378 417 Van Epps vs. Douser, 4 Paige, 71 283 PAGE. Van Horn vs. Fonda, 5 Johns. Ch., 38-t !52, 364 Van Meter vs. I.ove, : 3 HI., 260 275, 276 Van Patton vs. Beals, 46 Iowa, 62 418 Van Steiiiwyck vs. Washburn, 59 Wis., 483. 141 Vausyckle vs. Richardson, 13 III., 171 6, 154 Van Uxen vs. Hazelhurst. 1 Southard ■ N. J >, 192 429 Van Wickle vs. Calvin, 2? La. Ann., 205. . . 168 Vaughn vs. Barrel t 5 Vt., 333 2"3 Veasey vs. Graham, 17 Ga.. 99. . 358 Veile V8 Koch, 27 111., 129 90, 92 Vetten vs. Wallace, 39 111. Ap.,39'l 511 Vick vs. Vicksburg, 1 Howard, 379 5 Villardvs. Choviu, 2Strobh. (S (%iEq,40. 2S7 Vincent vs. Morrison, Breese 175 176 Von Kettler vs. Johnson, 57 Ili., 109 4, 132 Voris vs. Sloan, 68 111., 588 14 Voris vs. Steele, 47 Ind., 345 318 Vroom vs. Ex'r of Smith, 2 Green ( N. J.), 480 ."iOS Vroom vs. Van Home, 10 Paige, 549 45, 15 J Wade vs. Cai-penter, 4 Iowa. 361 317 W ade vs. Pritchard. 69 111., 280 69 Wadhams vs. Gay, 73 111., 415 266, 267 Wadsworth vs. Connell, 104 HI., 369.5, 50, 51, 100,126,138,16.5,225, 226 Wadsworth vs. Sherman, 14 Barb. (N. Y.), 16v' 416 Waite vs. iVIaxwell, 5 Pick. (Mass.), 217 417 Walbridge vs. Day, 31 111., 379 49 Walden vs. Gridley, 36 lU., 523 176 Waldo vs. Cummings, 45 111., 423 184, 185 Walker vs. Alexander, 24 N K. Rep., 5.57. . 98 Walker vs. Craig, 18 111., 116 53, 79 Walker vs. Crowder, 2 Ired. (N. C.) Kq., 478 287 Walker vs. Diehl,79Ill., 473.49, 101, 120, 156, 170 Walker vs. Doane, 108 Hi., 3.36 164 Walker vs. Douglas, 70 111.. 445 276 Walker vs. Ellis, 12 111., 470 265 Walker vs. Hallett, 1 Ala., 379 220, 224 Walker vs. McKay, 2 Met. (Ky.), 294 112 "Walker vs. Rav, 111 lU., 315 279 Walker vs. State, 6 Blackf. dud.), 1...503, 504 Walker vs. AV alker, 2 scam., 291 188 Walker vs. Walker, 101 Mass., 169 318 Wall vs. Wall, 123 Pa. St., 545 5, 188 Wallace vs. Gatchel, 106 111., 315 4, 104 Wallace vs. Gatchel. 100 III., 316 102 Wallace vs. Marss, 5 Hill ( N. Y.), 391 277 Wallace vs. Rappelye, 103 111., 229.145, 379, 514 Wallace vs. Reddick, 119 111., 151 143 Walter vs. Kirk, 14 lU., 55 53 Waiters vs. People, 32 N. Y., 147 419 Walters vs. People, Ex. ret Bradley, 21 111., 178 270 Walton vs. Devehng, 61 111., 201 535 Wann vs. People, 57 111., 2 2 2. 8, 269, 349 Ward vs. Armstrong, 84 111., 151 359 W'ard vs. Bevill, 10 Ala., 1 97 57 Ward vs. Brewer, 19 Iil., 291 1.58 Ward vs. Durham, 134 lU., 195.... 98, 102, 107. 112, 114, 17J, 171 Ward vs. Roper, 7 Humijh. (Tenn.), Ill ... . 220 Ward vs. Ward, 134 lU., 417 14 1, 196 Wardwell vs. McDowell, 31 111., 364. .16.47, 179 Ware vs. Coleman, 6 J. J. Marsh, i Ky. ;, 198 230 Ware vs. MuiiJh, Rice's Law Rep.jS. C.'i, 54 . 179 Waruecke vs. Lembca, 71 111., 91 50, 71 Warner vs. Thornton, 98 111.. 156 48, 179 Warner vs. Wilson, 4 Cal., 310 409 Warren vs. Ball, 40 111., 117 67 Warren vs. Hofer, 13 Ind., 167 337 Waslungton vs. L. & N. Ry. Co., 136 111., 51 52, 76 Waterman vs. Alden, 115 111., 83 151 Watson vs. Sherman, 84 111.. 263 367 XXXII TABLE OF CASES CITED. Weaver vs. Weaver, K 9 lU., 225 «! Webber vs. Brown, 38 111., 87 527 Weber vs. Mick, 131 lU., 520 452 Webster vs. Byrnes, 34 Cal., 274 543 Webster vs. Conley, 46 lU., 13 . . . 199, 251, 329 Webster vs. GUmore, 91 lU., 324. .539, 543, 545 Webster vs. Judah, 27 111. Ap., 294 .... 458, 461 Weeks vs. Gibbs, 9 Mass., 74 57 Weer vs. Gand, 88 111., 490 119, 209 Weir vs. People, 78 111., 192 42, 134 Welch vs. Hoyt, 24 lU., 117 54, 79 Weld vs. Sweeney, 85 lU., 50 189, 190 Welltnan vs. Lawrence, 15 Mass., 326 317 Wells vs. Cowherd, 2 Mete. (Ky.), 514 310 Wells vs. Cowles, 4 Conn., 182 71 Wells vs. Miller, 45 111., 382 61, 102, 106 WeUs vs. Smith, 44 Miss., 296 281 Wenn r vs. Thornton, 98 111., 156 48, 179 Wernse vs. Hall, lul 111., 423 20, 171 West vs. Krebaum, 88 111., 263 HI West vs. West, 8 Paige, 433 561 Westbrook vs. Comstock, Walk. Ch. (Mich), 314 272 Wever vs. Marvin, 14 Barb., 376 57 Whedbe vs. Whedbe, 5 Jones (N. C.) Eq., 392 292 Wheeler vs. Dawson, 63 lU., 54 112, 113, 125, 126, 162 Wlieeler vs. Wheeler, 9 Cowan, 34 47 Whipple vs. Pope, 33 111., 334 446, 447 White vs. BaUey, 10 Mich., 155 411 White vs. Dance, 53 111., 414 148 White vs. Glover, 59 111., 459 216 Wlute vs. Murtlaud, 71 111., 250 2.50, 269 White vs. Parker, 8 Barb. (N. Y.), 48. .249, 290 White vs. Russell, 79 111., 155 109 vvhitenack. Matter of, 3 N. J. Kq. (2 Green), 252 407 Whiteside vs. JeuniuKS, 19 Ala., 784 49 Whitford vs. I)af,'gett,84 111., 144 108 Whiting vs. Dewey, 15 Pick. (Mass.), 428. . 315 Whiting vs. Nichol, 40 III., 230 14 Whitledge vs. Callis, 2 J. J. Marsh. (Ky.), 403 287 Wliitlock vs. McClusky, 91 lU., 582 177 Whitloek'sCase, 32 Barb. (N Y.), 48 309 Whitman vs. Fisher, 74 lU., 147 169, 200 Wliitaian vs. State, 34 Ind., 360 505 vVhituey vs. Peddecord, 63 111., 249 36, 5 > Whitney vs. Porter, 23 111., 445 158 Whitney vs. Whitnev, 15 Miss., 740 345 Wilbur vs. Wilbur, 129 111., 392 192 Wilburn vs. Shell, 59 Miss., 205 198 Wickiser vs. Cook, 85 111., 68. .267,270, 272, 368 Wicklitt' vs. Kobiusou, 18 111., 145 358, 36" Wiggle vs. Owen. 45 Miss., 691 257 Wight vs. Walbamn, 39 111., 554 17, 18 Wilcox vs. Smith, 26 Barb., 316 51 Wilcox vs. Wilcox, 14 N. Y., 575 218 Wild vs. Sweeney, 84 lU., 213 5 Wile vs. Wright, 32 Iowa, 451 1 03 Wi'hite vs. Pearce, 47 111., 413 265 Wilkins vs. ElUott, 9 Wal., 740 150 Wilkinson vs. Demniing, 80 111., 342 2 JO Willard vs. Bassett, 27 111., 37 125, 1:17 Willenborg vs. Muii)liy, 36 III., 344 61 Williams vs. Conley, 20 1 11 ., 643 70 WiJhams vs. Johnson, 112 111., 61 185 Williams vs. Morton, 38 Me., 47 312 Williams vs. Powell, 1 Ired.(N. C.) Fq., 460 . 270 Willianis vs. Rhodes, 81111., 572 79, 132,170, 174 Williams vs. Stein, 38 Ind., 89 541 Williams vs. Stratton, ID Sm. & M. (Miss.), 418 223 Williams vs. Walker, 62 111., 517 79, 174 WiUiams vs. Wiggand, 53 lU., 233 51 Williamson vs. Gordon, 1 Bush. (N. C.) Eq., 46 220 PA6K Williams vs. Williams, 55 Wis., 300 36 WUUs vs. Fox, 25 Wis., 646 '.^92 Willis vs. Watson, 4 Scam., 64 185, 199 Wilson's Estate, 2 Pa. St., 3i5 412 Wilson vs. Aaron, 132 111., 238 458 Wilson vs. Gerard, 59 lU., 151 277 Wilson vs. Kirby, 88 111, 566 119 Wilson vs. Oldham, 12 B. Mou , 55 418 W'ilson vs. Pearson, 20 111., 81 445, 448 Wilson vs. Robertson, 21 N. Y., 587 448 Winch vs. Tobm, 107 111., 212 3:} Wing vs. Dodge, 80 111., 564 409, 415 Wmgate vs. Pool, 25 lU , 118 52, loi, 103 Winship vs. Bass, 12 Mass., 198 34 Winslow vs. Leland, 128 111., 304 6, 7, 85, 138, 142, 165 Winslow vs. People, 17 111. Ap , 222 3.55 Winslow vs. People, 117 111., 1.52 355 Winslow vs. People, 117 lU., 619 280, 2'.I5, 3.55 Wmter vs. Ihistlewood, 101 111., 450 533 Wisdom vs. Hecker, 52 111., 312. .47, 51, 75, 150 Wiser vs. Blachly, 1 Johns. Ch. (N. Y.), 607 238 Wiswall vs. Stewart, 32 Ala., 433 363 Withers vs. Hickman, 6 B. Mou., 292 257 Woelper's Appeal, 2 Pa. St., 71 358 Wolf vs. Beard, 123 111., 585. 100, 134, ICO, 126 Wolf vs. Bollmger. 62 111., 368 184, 192 Wolf vs. Griffin, 13 111. Ap.,. 559 135 Wolf vs. Ogden, 66 111., 224 168, 172 Wood vs. Byington, 2 Barb. ( h , 387 170 Wood vs. Gale, 10 N. H., 247 25(1 Wood vs. Stafford, 5 Miss., 370 362 Wood vs. Vanderburg, 6 Paige, 277 101 Wood vs. Washburue, 2 Pick., 24 32 Woodberry vs. Hammond, 54 Me., 332 285 Woodruff vs. Young. 43 Mich., 548 6 Woodside vs. Woodside, 21 HI., 207 194 Woodward vs. Brooks, 128 lU., 222 461 Woodward vs. Donally, 27 Ala., 198 251 Woodworth vs. Payne. Breese, 294 117 Work vs. Cowhick, 81 111., 317 177 Wormley vs. Wormley, 98 111., 544 143 Worth vs. Curtiss, 15 Me., 228 310 Worthy vs. Johnson, 8 Ga., 236 358 V r u vs. Kirton, 11 Vesey, 577 2V2 Wright's Appeal, 8 Pa. St., 57 413 Wright vs. Arnold, 14 B. Mon. (Ky.), 6:;8. 270 Wright vs. Campbell, 27 Ark., 637 364 Wright vs. Conley, 14 111 Ap., 551 261 Wright vs. Gay, 101 111., 233 319 Wright vs. Miiishall, 72 lU., 584 201 Wright vs. Smith, 123 N. J. Eq., 106 365 Wright vs. WiUiams, 5 Coweu, 501 71 Wright vs Wright, 2 Mass., li;9 214 Wyattvs Mansfield, 18 B. Mon. (Ky.), 779. 22i Wjnnau vs. Camijbell, 6 Porter (Ala.), 219 26,28, 175 Wyman vs. Hooper, 2 Gray (Mass.), l4l . . 317 Wynne vs. Always, 1 Miu-ph. (N. C.^, 38. . . 242 Wyse vs. Dandridge, 35 Miss., 672 362 Yales vs Dodge, 123 111., 50 4.54 YoeVB. McCord, 74 111., 33 182, 184 York vs. York, 38 111., 522 91, 92 Young vs. Adam, 74 111., 480 533 Young vs. Dowling, 15 11!., 481 ... . 1.58, 314, 316 Yoimg vs. Keogh, 11 lU., (542 314 Young vs. Lorain, 11 III, 624. . . .230, 3in, 311, 315, 316, 341, 345 Young vs. Makepeace, 1 J3 Mass., 50 503 Young vs. Wittenmyre, 123 lU., 303 118, 156, 1.57, 170, 204 Young vs. Young, 5 Ind., 513 346 Zeigler vs. McCormick, (Sup. Ct. Neb.i 14 Legal News, 375 52S Zimmerman vs. Cowan, 107 111., 631 547 TABLE OF STATUTES CITED. IIURD S REVISED STATUTES. 1 1 1 02 Chapter. a o 1 02 fk o 1 1 o 1 M 1 10 67 3 65 105 3 117 135 22 6 220 2 1 43 3 66 105 3 118 58 22 12 520 3 1 191 3 67 106 3 118 136 22 13 520 3 2 46 3 68 208 3 118 150 24 34 533 3 3 191 3 69 113 3 119 198 24 57 533 3 4 46 3 69 114 3 119 329 83 1 40 3 5 46 3 70 1(3 3 120 199 33 2 41 3 9 179 3 70 il6 3 121 199 33 3 41 3 11 19 3 70 117 3 122 66 38 237 27 ' 3 15 55 3 71 117 3 124 208 38 283 278 3 16 65 3 72 114 3 125 209 39 1 141 3 17 55 3 73 120 3 126 53 39 2 145 3 18 10 3 74 89 3 127 70 39 3 145 3 IH 12 3 75 90 3 128 115 39 6 141 3 19 13 3 75 93 3 129 155 39 7 144 3 20 14 3 76 90 3 130 7 1 39 8 144 3 22 15 3 77 90 3 131 7 39 9 146 3 23 27 3 78 149 3 132 137 39 10 196 3 23 37 3 79 74 3 134 137 39 12 141 3 24 31 3 80 69 3 135 137 41 1 147 3 25 32 8 82 76 3 136 202 41 12 141 3 25 38 3 83 77 3 137 49 41 36 16-. 3 26 20 3 84 77 4 1 147 41 37 165 3 27 20 3 85 33 4 1 371 41 39 165 3 28 20 3 85 78 4 2 372 46 60 642 H 29 20 3 86 83 4 3 373 46 65 I 541 3 30 21 3 87 84 4 4 375 46 66 539 3 31 21 3 88 84 4 5 376 46 97 533 3 32 28 3 89 84 4 7 377 46 98 533 3 33 29 3 89 86 4 8 377 46 112 535 3 34 29 3 90 78 10a 1 430 46 113 536 3 35 28 3 91 151 10a 2 431 46 114 536 3 36 30 3 92 151 10a 3 431 46 115 536 3 37 30 3 93 79 10a 4 431 46 116 537 3 38 31 3 94 80 10a 5 431 46 119 54-1 3 39 39 3 95 80 10a 6 432 46 120 544 3 40 22 3 96 179 10a 7 432 46 121 545 3 41 22 3 97 155 10a 8 433 46 122 54 1 3 42 205 3 98 155 10a 9 432 46 123 545 3 43 206 3 98 156 10a 11 434 49 1 151 3 44 18 3 98 157 10a la 434 49 2 151 3 45 18 3 99 156 10a 13 43i 52 8 160 3 46 18 3 100 162 10a 13 449 52 9 166 3 47 18 3 100 168 10a 14 435 54 66 llfi 3 49 337 3 101 158 10a 15 437 59 10 20 1 3 50 19 3 102 158 17 1 486 59 12 274 3 51 34 3 103 159 17 2 486 59 13 274 3 51 59 3 104 159 17 4 489 59 14 275 3 52 60 3 105 163 17 5 490 59 15 106 3 53 61 3 106 164 IT 6 491 59 15 275 3 54 62 3 107 177 17 7 491 59 16 275 3 55 62 3 108 173 17 8 491 59 17 275 3 56 61 3 108 174 17 9 510 64 2 228 3 56 62 3 109 178 17 10 494 64 3 230 3 57 48 3 110 178 17 11 494 64 4 230 3 57 63 3 111 123 17 12 498 64 4 256 3 58 63 3 111 150 17 13 498 64 5 219 3 69 62 3 112 123 17 14 498 64 6 234 H 59 63 3 112 150 17 15 498 64 7 236 3 60 98 3 113 130 17 16 498 64 8 219 3 61 104 3 114 37 17 17 511 64 9 219 3 (12 104 3 114 132 17 17 514 64 10 227 3 63 104 3 115 133 22 5 218 64 10 236 3 64 105 3 116 134 22 6 522 64 11 23 i» XXXIV TABLE OF STATUTES CJITED. HURDS REVISED STATUTES. c a i a i d Qi a o -is o ■^ o -^ O p< o p. 3 5 31 64 23 251 72 17 474 86 2 382 1(3 7 31 61 24 323 72 18 474 86 3 383 103 8 31 64 25 323 72 19 475 86 4 383 1(3 9 31 64 26 325 72 20 476 86 5 383 l(i3 13 33 64 27 325 72 21 476 86 6 383 110 21 37 64 28 299 72 22 476 86 7 384 l40a 1 517 64 29 299 72 26 478 86 8 3)^4 141 la 2 517 64 30 301 72 27 479 86 9 384 140a 3 518 64 31 302 72 28 479 86 10 384 UOa 4 519 64 32 304 72 29 479 86 11 384 UOa 5 519 64 33 305 72 30 480 86 12 384 14(ii 7 522 64 34 308 72 31 480 86 13 385 140a 8 52* 64 35 284 72 32 480 86 14 385 140a 9 523 64 36 350 72 33 480 86 15 385 140a 10 523 64 37 342 72 34 480 86 16 385 140a 11 5-24 64 38 3<2 72 34 484 86 17 38-. 140a 12 525 6t 39 339 77 18 37 86 18 386 liOa 13 525 64 40 345 77 18 50 86 19 386 148 1 18j 64 44 332 77 37 68 86 20 386 148 2 ]83 (.4 45 3i2 77 38 53 86 21 886 148 3 186 64 46 333 77 39 68 86 22 386 148 4 1^7 64 47 309 85 1 394 86 23 386 148 5 187 64 48 309 85 2 395 86 24 387 148 6 188 64 49 3 9 85 3 396 86 25 387 148 7 192 6t 50 309 85 4 397 8> 26 3.^7 148 8 19.J 6t 53 226 8i 5 397 86 27 387 148 9 1H4 64 53 226 85 6 398 86 28 387 148 111 195 64 54 2t6 85 7 399 86 29 388 148 11 l!r6 64 55 227 85 8 399 86 30 388 148 12 185 64 56 227 85 9 399 86 31 3 8 148 13 190 64 57 227 85 10 399 86 32 388 148 14 190 70 1 35 «5 11 400 86 33 388 148 15 197 7i 1 463 85 12 400 86 34 388 148 16 197 72 2 463 85 13 400 86 35 389 148 17 195 72 3 463 85 14 400 86 36 389 148 18 190 72 4 465 85 16 401 86 37 389 148 19 191 72 5 465 85 17 402 86 38 390 148 20 190 PART I. SETTLEMENT OF ESTATES, Testate and Intestate. SETTLEMENT OF ESTATES, TESTATE AND INTESTATE. CHAPTER I. COUNTY COURTS OF ILLINOIS AND THEIR JURISDICTION IN PROBATE. 1. Constitutional provisions. 2. Jurisdiction general. 3. Force of their decrees. 4. Not to be questioned collaterally. 5. Statutory powers. 6. Jurisdiction shared by chancery courts. 7. Jurisdiction continues. 8. May adjudicate upon equitable claims. 9. May enforce their orders. 10. Power to construe will. 11. Probate courts. 12. Sheriff shall attend sessions. 1. The constitution of 1848 established county coiirts^^y and pro- vided that their jurisdiction should extend to all probate and such other jurisdiction as the general assembly may cojifer in civil cases, and such criminal cases as may be prescribed by law, where the punishment is by fine only, not exceeding $100.(^) Their exist- ence was perpetuated by the constitution of 1870,(^j and their office somewhat more specifically declared to be courts of record, which shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, np[)ointment of guardians and con- servators, and settlements of their accounts, etc.('') ,(i) Art. 5, ? I. (3)Art. 6, ?i. (2) Art. 5, I 18. (4) Art. 6, ^ 18. But this jurisdiction is not exclusive: Shaw vs. Moderwell, 104 III., 64. 4 .COUNTY COURTS OF ILLINOIS. [CH. I. The statute more particularly prescribes their powers: Probate jurisdiction — Couuty courts shall have jurisdiction in all matters of probate, settlements of estates of deceased persons, appointment of guardians and conservators, and settlements of their accounts; all matters relating to apprentices ; proceedings for the collection of taxes and assessments; and in proceedings by executors, administrators, guardians and conservators for the sale of real estate for the purposes authorized by law, and such other jurisdiction as is or may be provided by law. All of which, except as hereinafter provided, shall be considered as probate matters, and be cognizable at the probate terms hereinafter mentioned. (') This jurisdiction is not exclusive.(^) Probate terms, etc. — The terms of county courts for all pro- bate business shall commence on the first Monday of each month, and shall be always o})en for the transaction of all probate business, and for hearing apj)lications for the discharge of insolvent debtors iVoin anest or imjdisonment, and all matters cognizable at such pro- bate terms shall also be cognizable at the law terms of snch courts. (^) 2. Jurisdiction general. — Thus established and invested with a jurisdiction, these courts have been recognized by the supreme conrt as courts whose jurisdiction, although of limited is not, strictly sj)eaking, inferior, and certainly not of special jurisdiction. It has sMid, when speaking of one of these courts, that it is a court of general jiiiisdiction of unlimited extent over a })articnlar class of subjects, and when acting within that sphere its jurisdiction is as general as the circuit coui't ; that when adjudicating upon the administra- tion of estates over which it has general jurisdiction, as liberal intendments will be granted in its favor as would be extended t(. the ])roceedings of the circuit court; and that it is not necessary that all the facts and circumstances which justify its action should affirmatively a]>pear upon the face of its proceed ings.(*) 3. Force of their decrees. — Their decrees and findings, when exercising the jurisdiction conferred by statute, and where the record (i) Kurd's R. S., Chap. 37, § 93. (2) Shaw vs. Moderwell, 104 III., 64. (3) Kurd's R. S., Chap. 37, 'i 94 ; Wallace vs. Gatchel, 106 111., 315. (4) Kanna vs. Yocum, 17 111., 387; Propst vs. Meadows, 13 111., 157; Mitchell vs. Mayo, 16 111., 83 ; Barnelt vs. Wolf, 70 111., 76 ; People vs. Gray, 72 111.. 343 ; Von Kettler vs. Johnson, 57 111., 109 ; Housh vs. People, 66 111., 181 ; People vs. Cole, 84 III., 327; Matthews vs. Koff, 113 111., 90; Blair vs. Sennott, 134 111., 78. CH. I.] COUXTY COURTS OF ILLINOIS 5 shows jurisdiction of the persons of those to be affected, are entitled to the same force and tlie same |)resumj)tions as if such decrees had been rendered by the circuit court, which is of unlimited original jurisdiction. Like other courts of record, their records cannot be contradicted, varied or ex[)lained by evidence beyond or outside of the record itself; but one part of their records may limit, qualify or explain another part.(^) 4. Decrees and judgments not questioned. — Likewise, the judgments and decrees of this court, when adjudicating within its jurisdiction, may not be questioned in any collateral proceeding.(^) 5. Statutory powers. — The statute has conferred upon the county court thd power to grant letters of administration, to admit to probate the wills of deceased persons, and to enforce the settlement of estates; and in these matters its jurisdiction is exclusive, although courts of equity may take jurisdiction of the administration of estates, and thus, in the particular case, supersede the jurisdiction of the probate court. But a court of equity will not exercise this jurisdiction except in extraordinary cases, where some special reasons are shown to exist why the administration should be withdrawn from the probate court. (^) 6. How FAR this jurisdiction is shared by equity courts. — While this jurisdiction is given to our county courts by the statute, -•.ourts of equity have long exercised the right of a paramount juris- diction in cases of administration and the settlement of estates, and in this, control courts of law in their action in the settlement and distribution of estates of decedents ;(*) yet a court of equity will never take jurisdiction to admit a will to probate, nor to appoint an executor, that being peculiarly the office of a probate court ;(^) nor will it assume jurisdiction of a claim against an estate until it has (i) Barnelt vs. Wolf. 70 111., 76 ; Mofifatt et al. vs. Mof?att, 69 111., 641 ; Barnard vs. Barnard, 119 ., 92. (2) Bostwick et ai. vs. .-jkinner et al., 80 III., 147 ; Klingensmith vs. Bean, 2 Watts, 486; Sankey's Ap.,55 Pa. St., 496 ; Bailey vs. Dilworth, 10 Smedes and M., 404. . But when acting without its jurisdiction its acts are void : Vick vs. Vicksburg, i Howard, 379 ; Fisk vs. Norvell, 9 Texas, 13 ; Wall vs. Wall, 123 Pa. St., 545 ; Wad'^worth vs. Connell, 104 111., 369. (3) Freeland vs. Dazey et al., 25 111 , 294. (4) Story's Eq. Jurisp., Chap. 9 : Grattan vs. Grattan et al., 18 111., 167. Townsend vs. Radcliff et al., 44 111., 446; Freeland vs. Dazey, 25 111., 294. Lynch et al vs. Rotan et al., 39 111., 14. (5) Wild vs. Sweeney et al., 84 111., 213 ; Hales vs. Holland, 92 111., 4q4, Kennedy vs. Kennedy, 105 111., 350. 6 COUNTY COURTS OF ILLINOIS. [CH. I. been allowed in probate, that also being peculiarly the office of that court, and some special reasons shown why its aid should be granted ;(^) nor unless all parties in interest as creditors are before it.(^) Some cases present a complication of circumstances under which a court of equity alone can do full justice. (^) 7. Jurisdiction continues. — Where a court of one county acquires jurisdiction over an estate, it retains it until it is fully administered. (•*) Whenever, by the division of any county, or the removal of the executor or administrator to whom letters have been granted, he is, by such removal or division, beyond the limits of the county in which said letters were granted, and in some other county of this state, the county court of the county in which the letters were or are granted shall proceed and settle the estate in the same manner as if no removal or division had occurred. (^) 8. May entertain jurisdiction of equitable claims. — Where claims against estates are purely of an equitable nature, this court is not ousted of its jurisdiction thereby, but may proceed to adjudicate thereon as if they were of a legal nature ;('') but where third parties are to be brought in, and conflicting interests are to be composed and settled, this court may not act.C'^) Nor has it power to adjudicate in case of a resulting trust. C*) 9. Power of court. — County courts shall have power to enforce due observance of all orders, decisions, judgments and decrees made by them in discharge of their duties under this act; and they may issue attachments for contempt offered such courts or their processes, by any executor, administrator, witness or other person ; and may fine and imprison, or either, all such offenders, in like manner as the (i) Garvin et al. vs. Stewart, 59 111., 229; Le Moyne vs. Quimby, 70 III., 400 ; Heustis et al. vs. Johnson, 84 111., 61 ; Grain vs. Kennedy et al., 85 UK, 540; Harris vs. Douglas, 64 111., 466; Blanchard vs. Williamson, 70 HI., 647; .-Armstrong et al. vs. Cooper, 11 III., 560 ; Clark et al. vs. Hogleetal., 52 III., 427; Winslo.w vs. Leland, 128 111., 304 ; Harding vs. Shepherd, 107 III., 264; Cowdrey vs. Hitchcock, 103 III., 264 ; McNeil vs. McNeil, 36 Ala., 109. (2) Vansyckle et al. vs. Richardson et al., 13 III., 171 ; i Story's Eq., 536. (3) McCreedy vs. Meier et al , 64 111., 495 ; Jennings et al.vs. McConnell et al., 17 111., 148. (4) People vs. White et al., 11 III., 341 ; Woodruff vs. Young, 43 Mich., 548. (5) Hurd's R. S., Chap. 3, ^ 9. (6) Moline Water Power Co. vs. Webster, 26 III, 234; Moore etal. vs. Rogers, 19 III., 347 ; Dixon et al. vs. Buell, 21 III., 203. (7) Pahlman et al. vs. Graves, 26 111., 405. (8) Lill vs. Brant, 6 111. Ap., 366. en. I J COUNTY COURTS OF ILLINOIS. 7 circuit courts may do in similar casos.(*) In all matters pertaining to the administration of the estates of deceased persons, the county court has unlimited general jurisdiction ; and the statute must be so construed as to give to this court power to require of administrators and executors prompt and honest discharge of all their duties, for the interest of those interested in the estates committed to their care.(^) 10. PoAVER TO CONSTRUE WILLS, ETC. — Thcsc courts, by virtue of their probate jurisdiction, have power, in the first instance, to construe wills, whenever such construction is involved in the settle- ment and distribution of the estate of a testator. Their jurisdiction over the estates of persons under guardianship includes not only the appointment of guardians and the control over their official actions, but the care and protection of the estates of the wards, formerly vested in the court of chancery. (^) 11. Probate courts. — Section 20, Art. 6 of the constitution of 1870, provides, that the general assembly may establish probate courts in counties having a population of over 50,000. Said courts, when established, to 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. Upon the establishment of such court in any particular county, the county court of any such county is at once, by operation of law, dejM-ived of its jurisdiction in matters of probate, and in all matters over which probate courts have jurisdiction. (■*) 12. Sheriff's duties — fees. — The sherlif shall, when required by the court, attend all sessions of said court, either by himself or deputy, and shall preserve good order in the court, and execute a'l writs of attachment, summonses, subpoenas, citations, notices and other processes which may, at any time, be legally issued by sueli court, and make return thereof. And such sheriff shall be entitled to the same fees as he is allowed for similar services in the circuit oourt.(^) (i) Kurd's R. S., Chap. 3, § 130. (2) Reynolds vs. People, 55 111., 328; VVinslow vs. Leland, 12S 111., 304 , Spencer vs. Boardman, 118 HI., 553. (3) State vs. Ueland, 30 Minn., 277. (4) Klokke vs. Dodge, 103 111., 125. (5) Kurd's R. S., Chap. 3, 'i 131. GRANTING AND REVOCATION OF LETTERS. [CH. II. CHAPTER II. GRANTING AND REVOCATION OF LETTERS TESTAMENTARY AND ADMINISTRATION. 1. Administration under English laws. 2. What court may appoint. 3. Right of administration under our statute. 4. Next of kin. 5. Statute imperative. 6 Wlio should not be appointed. 7. When letters may be granted others than the next of kin. 8. Creditor must be actual. 9. Administrator unnecessary. 10. Preference between several. 11. Proof of death necessary. 12. Grant may be delayed. 13. Oath of administrator. 14. Oath of executor. 15. Act of granting ministerial. 16. Appointment cannot be questioned collaterally. 17. Acts of one irregularly appointed not void. 18. Letters void in the beginning remain so. 19. Public administrators. 20. Duties of public administrator. 21. Administrator to collect. 22. Bond of same. 23. Limitation on appointment of administrator. 24. Revocation of letters and resignation. a. False pretenses — costs. b. When will is discovered. c. When will is set aside. d. For violating order of paying claims. e. For refusal to perform duties. /. Where minor or non resident is appointed. g. Where appointee becomes unsound of mind h. Where administrator removes. 25. Resignation and costs. 26. When action void. 27. Who to administer de bonis non. 28. Suits against former administrator. OH. n.] GRANTING AND REVOCATION OF LETTERS. 9 1. Wlien a person died intestate in the early periods of the Englisli history, his j^oods went to (he king, as the general trustee or guardian of tiie state. This right was afterward conceded by tlie crown to the clergy, for, as was quaintly said, " the law presumes that he who had the care of his soul in his lifetime would, after his death, have care of his temj)()ral goods, to see them well disposed of,'V) L>iit the sequel did not justify the confidence of the fathers in the probity of the clergy, who, by rapidly absorbing all the property of tlie kingdom into the church, under the pretense of pious uses, so flagrantly abused the right so confidingly given, that the parliament was obliged to interfere, and take the power of administration entirely from the church, and confer it upon those more disposed to a faithful execution of the trust. This produced the statutes of 31 Edward III. (1358), Chap. 1 1, and 21 Henry VIII. (1530), Chap. 5, which are the models from which we have copied our statutes of administration. While in England this reform still left the j)ower of granting administration, and of superintending the process of administration, in the hands of the bishop, or ordinary in each diocese our law assigns it to the civil courts, which are the successors of these ecclesiastical courts.(^) 2. What court may appoint. — The county court of the county in which a decedent had his residence at the time of his death alone has jurisdiction to appoint an administrator of his estate, though ancillary administration may be granted, when necessary, in another state. Whether a given appointment is void or voidable, depejids u|)on whether the court had or had not jurisdiction to make the appointment. If the court has such jurisdiction, any irregularity in the appointment can make it voidable and revocable only, and not void.(^J 3. Administration shall be granted upon the goods and chattels, of decedent to the surviving husband or wife, or to the next of kin to the intestate, or some of them, if they will accept the same, or the court may grant letters of administration to some competent person who may be nominated to the court by either of them ; but in (i) 2 Bl. Com., 494; Wentworth on Executors, 473. (2) 2 Kent's Com., 499. (3) Broughton vs. Bradley, 34 Ala., 694 ; Moore vs. Philbrick, 32 Maine, 102; Johnson vs. Corpenning. 4 Iredell's Eq., 216; Hicko.x vs. Frank, 102 111., 660: Buckley vs. Redmond, 2 Bradl. Sur., 281. 10 GRANTING AND REVOCATION OF I.ETTKRS. [cH. II, all eases the survivinji; liushand or wife, or the person so uoniiDated by him or her, resi)eetively, sliall have the preference, and if none of the persons hereinbefore mentioned a[)plies within sixty days from the death of the intestate, tlie county court may grant administralion to any creditor who shall aj)ply for tlie same. If no creditor applies within fifteen days next after the lapse of sixty days, as aforesaid^ administration may be granted to any person whom the county court may think will best manage the estate. ]n all cases where the intestate is a non-resident, or without a widow, next of kin or creditors in this state, but leaves property within the state, administration shall be granted to the public administrators of the proper county : Provided, That no administration shall, iu any case, be grauted until satisfactory proof be made before the county court, to whom application for that ])urpose is made, that the person iu whose estate letters of administration are requested is dead and died intestate; And provided, further, That no non-resident of this state shall be appointed administrator or allowed to act as such.(^) 4. Who are nkxt of K[X. — The rule for determining who are " next of kin," long in use in P]ngland and this coiuitry, is derivf^l from the civil law, and makes the intestate himself the ])oint from whence the degrees are numben.'d. The children and parents of any intestate are equally near, being all related to him in the first degree; but iu determining the right to administer, preference is given to children, if not otherwise^ disqualifi^■d. From the children and piu'ents the uext degree embraces the brothers or sisters and grand parents, and so on in the same order — iu the case of collaterals always counting back to the common ancestor, and then dowu to the claimant, to determine the degree of relationship. The law and course, in those states which follow the English law, nuist be to gram administration, I. To the husband or wife ; ' II. To the children, sons or daughters ; III. To the parents, father or mother ; IV. To tlie brothers or sisters of the whole blood ; V. To the brothers or sisters of the half blood ; VI. To the grand parents. VII. To the uncles, aunts and nephews and neices, who stand in eqiuil degree. VIII. To cousins. (i) Hurd's R. S., Chap. 3, l 18. CH. II.] GRANTING ANTD KEVOCATION OF LETTERS. H Grand parents are preferred to aunts, as nearer of kin ; for the grand parent stands in the second deuree to th(! intestate, and the aunt in the third. (') In case of a ehiini by two oi- more wliose relationship to tlie intestate entitles tiiem to chiini administration, the court will exercise a wise discretion, and after excluding such as are disqualified by statute, notwithstanding their relationship, confer letters upon those whose interest or qualifications best fit them for the trust. It will not be error to grant letters to any one of the next of kin to the exclusion of all others in equal degree.(^) 0. Statute mandatory.— The requirements of the statute in relation to the grant of letters of administration are mandatory, and it is error to disregard the rights thereby given. (^j It specifically points out who may be appointed. The rule there laid down must not be departed fi'om except for some cause specified in the statute. Nor can the right be delegated^*; nor sold.(^) In a contest between relatives for letters, whose priority is not settled by statute, the single point to be ascertained is, who will be entitled to the surplus of the personal estate.(^) Being nearer of kin to the decedent than any other person in the United States, does not give a right to administer. If the next of kin is not within the state, or is legally disqualified, a creditf)r or the public adminis- trator, as the case may require, is entitled to administer.(^) Before letters are granted to one, before whom others are preferred, the renunciation of all so preferred must be produced before the c()urt,(^j and this, too, although the person seeking the appointment may be nominated by one having priority of right {^) Letters de bonis non mwy be granted without the observance of these restrictions but only by the court which granted administration. (^*') It is stated in the English books, that administration is granted (i) 2 Kent's Com., 505. (2) Taylor vs. Delancy, 2 Cai. C, 143. (3) Schnell vs. City of Chicago, 38 111., 382 ; Coope vs. Lowerre, i Barb Ch. 45. (4) Stockdale vs. Conway, 14 Md., 99. (5) Bowers vs. Bowers, 26 Pa. St., 74. (6) Sweezey vs. Willis, i Bradf., 495. (7) Public Administrator vs. Watts, i Paige, 347. (8) In the matter of Root, 5 N. Y. Leg. Obs., 449. A renunciation cannui be withdrawn : Stocksdale vs. Conway, supra. (9) lb. (10) Ru.ssell vs. Hoar, 3 Met., 187 ; Burnett vs. Meadows, 7 B. Monroe, 277. 12 GRANTING AND REVOCATION OF LETTERS. [cil. II. to the next of kin on account of his interest, and, therefore, if that cease, the reason ceases, and it is to be granted to the residuary legatee, if there be one, whether there be any present residue or not ; but the imsband is entitled to administer on the estate of his wife, though by a post-nuptial contract he relinquished all right to her property. (') 6. Who should not be appointed. — A non-resident of Illinois should not be appointed administrator of an estate situated in this state.(^j He being beyond the reach of any process i.ssued in this state, cannot be compelled by the court appointing him to render an account and make settlement of the estate committed to him.(^j A surviving partner should never be appointed administrator of the estate of his deceased partner, because, as such survivor, he becomes accountable to the estate, and could not well account to himself as its representative.^*) Administration should be refused to the husband, wife, next of kin or creditor, if it should appear to the court that there is anything in the character or qualifications of the applicant which would "disqualify" him for a proper discharge of the high trust.(^) Letters cannot be granted to a corporation, though it be the legatee and the executor appointed in the will.(^) Nor have the illegitimate children of an intestate a right as next of kin to letters of adminis- tration upon the estate of their father.C') The court has no right to join with one who has a right to administer, a person not entitled, without the consent of the former.(^) Before a court can obtain jurisdiction of a case to appoint a .stranger or the public administrator, it should affirmatively appear of record that application for the appointment of an administrator lias been made by some person interested in the estate, and that there is no relative within the state or creditor j)ossessiiig qualifieations to whom administration may be committed. (^j (i) I Dane's Ab., 580; O'Rear vs. Crum, 135 111., 294; Charles vs. Charles, 8 Grattan, 486. (2) Kurd's R. S., Chap. 3, ? 18. (3) Child vs. Gratiott, 41 111., 3^7. (4) Heward vs Slagleet al, 52 ill., 336. (5) Kurd's R. S., Chap. 3, ? 18; O'Rear vs. Crum, supra. (6) Georgetown College vs. Browne, 34 Md., 450. (7) Myatt vs. Myatt, 44 111., 473. (8) Peters vs. Public Administrator, i Brad., 200. (9) Unknown Keirs of Langwoithy vs. Baker, 23 111., 484. ClI. II.] GRANTING AND KEVOCATION OF LETTERS. 13 7. When LETTEr^8 may be granted to others.— Letters of administration upon the goods and ciiattels, rights and credits of a person dying intestate shall not be granted to any person not entitled to the same, as husband, \vi(h)\v, next of kin, creditor or public administrator, within seventy-fivedays after the death of the intestate, witliout satisfactory evidence that the persons having the i)reference have relinquished their prior right thereto; but if application is made after tlie expiration of seventy-five days, the county court may proceed to grant letters to the applicant or any other person, as he may think fit.(^) 8. Creditor. — To entitle a creditor of the deceased to a grant of administration, his claim upon the estate of the intestate must be such as survives against the legal representative of a deceased person. (2) A mere legatee is not entitled to administration as a cred- itor ;(=') nor one having claim for causing death. C) But one who has paid funeral expenses is.(^) 9. Administrator unnecessary.— When the appointment of an administrator is not necessary to the proper settlement of an estate, letters of administration may properly be refused — as where the surviving husband is the sole heir of his deceased wife as to her personal estate, has paid all her debts and liabilities, and has reduced her i)ersonal estate to his possession, the ap])ointment of an admin- istrator is unnecessary ; and if one is appointed, he will not, as a matter of right, be entitled to the possession of her personal estate.(''i And the heir, by tendering to a creditor the amount of his debt deprives him of his right to administer.C^j 10. Preference between several.— Where the class prima- rily entitled to administration consists of several persons, it is theduty of the court to grant letters to such one or more of them as he shall judge will best administer the estate. Letters may thus be granted to them all jointly, if they so desire ; or, in the discretion of the court, one of them may be selected, and administration committed (i) Kurd's R. S., Chap. 3, § 19. (2) Stebbins vs. Palmer, i Pick., 71. (3) Chapin vs. Hastings, 2 Pick., 71. (4) 1. C. R. R. Co. vs. Cragin, 71 111., 177. (5) Lentz vs. Pilert, 60 Md., 296. (6) People vs. Abbott, 105 lll.,5S8; 46 Am. Dec, 43S , McCleary vs Menke, 109 111., 294. (7) Culley vs. Mohlenbrock, 36 111. Ap-, 84. 1 14 GRANTING AND REVOCATION OF LETTERS. [cH. II. to him alone, to the exclusion of the others. This discretion, when properly exercised, is not subject to review. Primogeniture gives no {)reference to the older over the younger; yet, if things are pre- cisely equal, being the elder brother would incline the balance. And the same principle applies to the elder of two sisters. (^) 11. Proof of death. — Before letters of administration shall hereafter be issued, the person applying for the same, or some other credible person, shall make and file an affidavit with the proper clerk, setting forth, as near as m:iy be, the date of the death of the deceased, the probable amount or value of the personal estate, and the names of the heirs and widow, or surviving husband, if known. (^) The fact of death must exist, otherwise, by no proofs deduced, can the court obtain jurisdiction of the estate, and all it or its appointees can do will be void absolutely. (^) When a person goes abroad, and has not been heard of for a long time, the presumption of the continuation of life ceases at the expiration of seven years from the period when he was last heard from.(*) The ordinary rule is, that it is general reputation among the kindred only of a deceased person that is admissible in proof of death, but that rule is relaxed from necessity in cases where the deceased left no kindred that are known, in which case reputation among the acquaintances of deceased is received in proof of death. (^) Proof of the death of the person whose estate is to be administered is necessary to give jurisdiction to the court; and where letters are granted upon the estate of a living person, such letters are void-C) In New York it was held that letters granted upou the estate of a person then living, but upon proof of death deemed sufficient b}"^ the surrogate, were not void, but only voidable, and that acts done by the administrator so appointed were conclusive upon the person supposed to be dead.C) An affidavit of death made "according to the best of the petitioner's knowledge and belief," without alleging ^i) Brubaker's appeal, 98 Pa. St., 21 ; i Williams on Executors, 374. (2) Hurd's R. S., Chap. 3, I 20. (3) Melia vs. Simmons, 45 Wis., 334, and note 30, Am. Rep., 748; Thomas vs. People, 107 111., 517. (4) Whiting vs. Nichol, 46 111., 230; Moore vs. Smith, 11 Richardson's Law, 569. (5) Ringhouse vs Keever, 49 111., 470. (6) Melia vs. Simmons, supra.\ Ringhouse vs. Keever, 49 111., 470. See note 30, Am. Rep., 748. (7) Rodrigas vs. East River Savings Institution, 63 N. Y., 469. CH. II.] GRANTING AND REVOCATION OF LETTEllS. lo any knowledge or means of knowledge, in the petition, or reason for the belief, was held colorable proof, sufficient to vest jurisdiction iu the court to act, and that the giant of letters could not he im- peached collateral ly.(^) 12. Grant may be delayed. — It will be proper, npon an allegation of the existence of an unproven will of the deceased, to stay proceedings, and so afford an opportunity to have it proven in due course. (^) 13. Oath. — The county court shall, iu all cases, upon granting administration of the goods and chattels, rights and credits of any person having died intestate, require the administrator (public ad- ministrators excepted) to take and subscribe and file with the clerk of the court an oath, in substance following, to-wit : I do solemnly swear (or affirm) that I will well and truly administer all and singular the goods and chattels, rights, credits and effects of A. B., de- ceased, and pay all just claims and charges against his estate, so far as his goods, chattels and effects shall extend, and the law charge me; and that I will do and perform all other acts required of me by law, to the best of my knowledge and abilities. (3) 14. Oath of executor — F(jrm. — Every executor or adminis- trator with the Mill annexed shall, at the time of proving the will and granting letters testamentary, or of administration, take and subscribe the following oath, to-wit: I do solemnly swear (or affirm) that this writing contains the true lasi will and testament of the within named A. B., deceased, so far as I knowoi believe ; and that I will well and truly execute the same, by paying first the debts and then the legacies mentioned therein, as far as his goods and chat- tels will thereunto extend, and the law charge me ; and that I will make a true and perfect inventory of all such goods and chattels, rights and credits as may come to my hands or knowledge belonging to the estate of the said deceased, and render a fair and just account of my executorship, when thereunto required by law, to the best of my knowledge and ability ; so help me God. Which said oath shall be administered by the clerk of the countv court, and be attached to and form a part of the probate of said will.(\ (i) Sheldon vs. Wright, 7 Barb., 39. (2) Isham vs. Gibbons, i Brad., 69. (3) Hurd's R. S., Chap. 3, § 22: Campbell vs. Knights, 26 Me., 224. (4) Hurd's R. S., Chap. 3, I 23. 16 GRANTING AND REVOCATION OF I.ETTP^RS. [CH. II. If the person nominated by a testator as executor of his will is not disqualified by law from being executor, the court has no power to refuse to permit him to qualify, or to refuse to grant him letters testamentary. (^) 15. Act of granting letters. — The acts of granting letters of administration, approving bonds of administrators and executors, and of admitting to probate the wills of deceased persons, under the old probate system in force in this state until the adoption of the constitution of 1848, were ministerial only, and not judicial, and where performed by one who was a defacto probate justice, were effectual and binding ;(^) but as the county court is now organized, these acts, when performed by the court duly organized, must be held to be judicial and beyond inquiry in any collateral proceed- ing.(^) Where letters were granted by a clcik of the surrogate, in the absence of that officer, the clerk having no authority under the law to pass upon the sufficiency of the proof of the death of the intestate, \yhich is a judicial function, the letters so granted were held absolutely void, and no protection to those debtors of the sup- posed decedent who had paid debts due to the decedent to the acting- admin istrator.(^) 16. Appointment cannot be questioned collaterally. — The regularity of the appointment of an administratar cannot be questioned in a collateral proceeding, as in a })etition to sell land, or in a suit to enjoin an ejectment proceeding, for the recovery of lands sold at administrator's sale, nor in an action against a stranger to recover a debt due the estate ; they can only be questioned by appealing from the order of the court making the appointment.(^) Where, however, the act of granting is the act of the clerk, and not of the judge, it is a ministerial act, and not judicial, and may be (i) Berry vs. Hamilton, 12 B. Monroe, 191 ; See Brief 54, Am. Dec, 51S. (2) Pritchett et al. vs. People, 1 Gil., 525; Ferg^uson et al. vs. Hunter, 2 Gil., 657 ; Wardwell vs. McDowell et al., 31 111., 364; Clinefelter et al. vs. Ayers, 16 111., 329 ; Ayers vs. Clinefelter, 20 111., 465. (3) I. C. R. R. Co. vs. Cragin, 71 111., 177. (4) Rodrigas vs. East River Savings Institution, 76 N. Y., 316. See also .1 full collation of authorities upon the subject of granting administration upon estates of living persons, 30 Am. Rep., 748. (5) Schnell vs. City of Chicago, 38 111., 382; Duffin et al. vs. Abbott et cil., 48 111., 17 ; Hobson et al. vs. Ewan, 62 111., 146; Emery vs. Hildreth, 2 Gray (Mass.), 228 ; Riser vs. Snoddy, 7 Ind., 442; Abbott vs. Coburn, 2S Vt.,663. CH. II.] GRANTING AND REVOCATION OF LETTERS. 17 enquired of collaterally.(^) Where a stranger (not the husband or wife, next of kin or a creditor of the intestate) is appointed admin- istrator, the record of the court making the appointment should show that seventy-five days have elapsed since the death, or that there is no widow or next of kin.(^) If the court, by a proper petition, has jurisdiction to appoint an administrator, but errs by appointing one not entitled to letters, the letters are not void, but voidable.(^) 17. Acts of administrator not void. — All acts of an admin- istrator regularly appointed are binding upon all persons interested in the estate, though the letters should be afterward revoked. (■*) So, where, after letters of administration were granted upon the estate of a deceased person as of an intestate's estate, and afterward a will of the deceased person was discovered and admitted to probate, the letters of administration were held not void, but voidable.(^) In an action of ejectment, where one party claims under a deed made by an administrator, the regularity of the appointment cannot be called in question. (^) Where a court has jurisdiction of the subject matter and of the parties, its judgment in the appointment of an administrator, as in any other case, is held conclusive in all trials except in a direct proceeding to reverse it.(') Where letters are granted to a wrong person, they are voidable ; where in a wrong county, they are void.('') A judgment recovered against and revived against an admin- istrator whose appointment is void, is a nullity; and a scire facias issued thereon and sale of lands of the intestate thereunder are also null and void, aud the heirs ot the deceased can recover in trespass against a bona fide purchaser under him who purchased of the sheriff at such sale.(^) 18. Letters void in the bi:ginning remain so. — A grant (i) I. C. R. R. Co. vs. Cragin, 71 111., 177. (2) Schnell vs. City of Chicago, .y^z/iya. (3) Flinn vs. Chase, 4 Denio, 85. (4) Meek vs. Allison et al., 67 111., 46 ; People vs. Cole, 84 111., 327 ; Foster vs. Brown, i Bailey's Law, 221; Bigelow vs. Bigelow, 4 Ohio, 138; Pritchett et al. vs. People, supra. (5) Shepherd vs. Rhodes, 60 111., 301. (6) Wight vs. Wallbaum, 39 111., 554 ; Ruffin vs. Farmer, 72 111., 615. (7) Wight vs. Wallbaum, supra. (8) I bane's Ab., 561. (9) Griffith vs. Frazier, 8 Cranch, 9. 18 GRANTING AND REVOCATION OP LETTERS. [CH, J I of administration originally void, and not merely voidable, acquire.'- no validity by acquiescence for any period of time.(/) 19. Public administrator. — A public administrator is ap pointed by the Governor for each county,(^) who, before entering upon his duties, takes an oath, which is filed in the office of the county court, to support the constitutions of the United States and of Illinois, and to faithfully discharge the duties of public adminis- trator to the best of his ability. (^} In cases where a deceased person has estate in Illinois, but no relative or creditor within the state who will administer upon the estate of such deceased person, it is made the duty of the county court, upon the application of any person interested therein, to commit the administration of such estate to the public administrator of the proper county.(*) Such public admin- istrator is required to give bond in each case, conditioned the same as other administrators' bonds.(^) The pro[)er county in case of non-residents dying, leaving lands in this state, is the county where such lauds or a part of them lie, and in such county administration is to be granted. (^) Before the county court can get jurisdiction of the estate of a deceased person to commit it to the public administrator, it should affirmatively appear to the court that there is no relative within the state, or creditor, to whom administration may be committed, and it should further appear that the application for the appointment oi' an administrator on the estate is made by a party interested ;(^) but the failure of the court to require such proof cannot be called in question collaterally. (^j 20. Duties of public administrator. — Upon the death of any person intestate, not leaving a widow, or next of kin, or creditor within this state, the public administrator of the county wherein such person may have died, or, when the decedent is a non-resident, (i) Holyoke vs. Haskins, 5 Pick., 20. (2) Kurd's R. S., Chap. 3, § 44. (3) Hurd's R. S., Chap. 3, | 45. (4) Hurd's R. S., Chap. 3, § 46; Branch vs. Rankin, 108 III., 444. (5) Hurd's R. S., Chap. 3, 'i 47 ; But a creditor in this state is entitled to preference over the public administrator: Rosenthal vs. Prussing, 108 111., 128. (6) Bowles et al. vs. Rouse, 3 Gil., 409. (7) Unknown Heirs of Langworthy vs. Baker, 23 111., 484; Schnell et al. vs. Chicago, 38 111., 382. (8) Id.; Wight vs. VVallbaum, supro. COT. II.] GKAlVTrNG AJSTD REVOCATION' OF LETTERS. 19 die public admiuistratur of the county wherein the goods and chattels^ rigl its and credits of such decedent shall be, may take such measures as he may deem jjroper to protect and secure the effects of sucls intestate from waste or embezzlement, until administration thereon is gi-auted to the person entitled thereto — the expenses whereof shall be paid to such public administrator, upon the allow- ance of the county court, in preference to all other demands against such estate, funeral expenses excepted. (') The public administrator does not administer by virtue of his office as public administrator, but by virtue of letters issued to him in each particular case.(^) 21. Administrator to collect.— During any contest in rela- tion to the probate of any will, testament or codicil, before the same is recorded, or until a will which may have once existed, but is destroyed or concealed, is established, and the substance thereof committed to record, with proof thereupon taken, or during any contest in regard to the right of executorship, or to administer the estate of any person dying either testate or intestate, or whenever any other contingency happens which is productive of great delay before letters testamentary or of administration can be issued upon the estate of such testator or intestate, to the person or persons having legal preference to the same, the county court may appoint any person or persons as administrators, to collect and preserve the estate of any such decedent, until probate of his will, or until administration of his estate is granted, taking bond and security for the collection of the estate, making an inventory thereof, and safe keeping and delivering up the same, when thereunto required by the court, to the proper executor or administrator, whenever they shall be admitted and qualified as such.(^) 22. Bond, etc. — Such administrators are required to give bonds similar in form to those of other administrators,(*) and also to take a similar official oath.(^) The appointment of such an administrator is in the discretion of the county court, and neither of the parties litigant should, iu (i) Kurd's R. S., Chap. 3, ? 50. (2) Miller vs. Receiver of Franklin Bank, i Paige, 444. (3) Kurd's R. S., Chap. 3, g 11 ; Martin vs. Railroad, 92 N. Y., 70; Fisk vs. Norvell, 9 Texas, 13. (4) Kurd's R. S., Chap. 3, ^ 13. (5) Kurd's R. S., Chap. 3, g 14. 20 GRANTING AND REVOBATION OF LETTERS. [CH. II general, be appointed. (*) When so appointed, the authority of the court over such an administrator is the same as that over any other appointee. (^) 23. Limitation. — Letters of administration should not be granted after the lapse of seven years from the death of the intestate, unless the delay is explained. (^) 24. Revoking letters and resignation. — The county court is given by statute full and ample power over itsappointees,and for '^ood cause may remove administrators for fraud in obtaining letters, ■ji- where it appears that a will was executed by the deceased. (a.) False pretenses. — County courts shall revoke letters of administration in all cases where the same were granted to any j)ersou upon the false and fraudulent pretense of being a creditor of the estate upon which administration is granted, or upon any other false pretense whatever.(*) When it aj)pears that such letters were fraudulently obtained by such administrator, the court revoking the same shall give judgment against the administrator for all costs of suit.(^) (b.) When ^vill is produced. — If, at any time after letters of administration have been granted, a will of the deceased shall be produced, and probate thereof granted according to law, such letter." of administration shall be revoked. (^) In such a case the letters of administration are not void, but voidable, and their previous existence was valid for the purposes of a due administration of the estate.('^) (c.) When will is set asidp:. — In all cases where a will, testament or codicil shall have been j)roved and letters granted thereon, as aforesaid, and such will shall thereafter be set aside by due course of law, the letters granted thereon shall be revoked. (^) {d.) Where an administrator shows by his report that he has (i) Mootrie vs. Hunt, 4 Brad., 173. (2) Gottsberger vs. Taylor, 2 Brad., 86. (3) Child vs. Gratiot, 41 HI-, 357 ; Fitzgerald vs. Glancy, 49 111., 465. (4) Kurd's R. S., Chap. 3, ? 26; Marston vs. Wilcox, i Scam., 60 ; Proc- tor vs. Wanamaker, i Barb., Ch. 302; Wernse vs. Hall, loi 111., 424. (5) Hurd's R. S., Chap. 3, § 27. (6) Hurd's R. S., Chap. 3. § 28. (7) Meek vs. Allison, 67 111 , 46 ; Rebhan vs. Mueller, 114 III., 343, (8) Hurd's R. S., Chap. 3, 'i 2q. CH. ir.] GRANTING AND REVOCATION OF LETTERS. 21 given au unauthorized preference to creditors in the payment of assets, it is sufficient to justify his removal. (^^) (e.) The refusal of an administrator to perform any of the duties of his trust imposed by law is sufficient cause for revoking his authority and appointing another administrator.^^^ (/.) Should a minor or a non-resident, by inadvertence, be appointed administrator of an estate in this state, it is the duty of the court to revoke the appointment, on proper application being made.(^) ig.) Lunacy, etc.— The county court may revoke all letters testamentary, or of administration, granted to persons who become insane, lunatic or of unsound mind, habitual drunkards, are con- victed of infiimous crimes, waste or mismanage the estate, or who conduct themselves in such manner as to endanger their co-executors co-administrators or securities, in all which cases the court shall summon the person charged to be in default or disqualified, as aforesaid, to show cause why such revocation should not be made. When revocation is made, the reason therefor shall be stated at large upon the rfcn-d.(*) {h.) Duty of court to revoke letters on removal. — When it shall come to the knowledge of the county court, by affidavit or otherwise, that any executor or administrator of an estate is about to remove or has removed beyond the limits of this state, it shall be the duty of such court to cause a notice to be pub- lished in some newspaper in the county where letters testamentary or of administration were granted, for four weeks successively; and if no newspaper is published in said county, then by posting up a notice at the court house door, notifying the said executor or admin- istrator to appear before him within thirty days after the date of such notice, and make a settlement of his accounts as required by law. If the executor or administrator neglects or refases to make such settlement, it shall be the duty of said county court to remove him from office.^^) As has idready been said, the laws of this state fi) Foltz vs. Prouse, 17 III., 4S7. (2) Marsh et al. vs. People, 15 III., 284. (3) Child vs. Gratiot, 41 111., 357; Carow vs. Mowatt, 2 Edw., 57. (4) Kurd's R. S., Chap. 3, § 30; Estate of Pike, 45 iVis., 391 ; See i Pro bate Reports, 336, for brief. (5) Kurd's R. S., Chap, 3, | 31. 22 GRANTING AXD REVOCATION OF LETTERS. [CH. Ill will not tolerate the appointment of a non-resident as adminis- trator, {^) so, when an alministrator becomes a non-resident of the state, it is undoubtedly the duty of the court, even upon informal knowledge coming to the judge of that fact, to proceed under the foregoing section to his removal. 25. Resignation — settlkment. — An executor or adminis- tratoi- may, upon his petition aud upon giving such notice to the legatees, devisees or distributees, as the court shall direct, be allowed to resign his trust when it appears to the county court to be proper; aud upon such resignation the court shall grant letters of adminis- tration, with the will annexed, or de bonis non, to some suitable person, to administer the goods and estate not already administered. But no administrator or executor shall be discharged till he shall have made full settlement with the court and complied with its orders, aud shall deliver over to his successor all money, chattels and effects of the estate in his hands not paid over according to the orders of the court. (^) The acceptance of the resignation of an administrator amounts to a removal. (^) An administrator who resigns is required by statute to pay- all costs caused by the proceeding, and judgment may be rendered against him for the same, to be collected by execution.(*) 26. When action void. — Until a valid revocation of letters of administration already granted upon an estate is made, or a voluntry resignation of the same has been tendered and accepted, the county court has no power or jurisdiction to appoint another as administrator de bonis non of the same estate ; and an order for such appointment under such circumstances is absolutely void.(^) 27. Who to administer de bonis non. — The statute is sileni as to the right to letters de bonis non, except that letters shall bo granted "to some suitable person.' \^) The rule of precedence laid (i) Ante page lo. (2) Hurd's K. S., Chap. 3, I 40 (3) Marsh et al. vs. People, 15 111., 2S4. U) Hurd's R. S., Chap. 3, § 41. (5) Munroe vs. People, 102 111., 406 ; Hanifan vs. Needles. 108 111., 403; Thomas vs. Bu— us, 23 Miss., 550 ; See 24 Am. Dec, 379, for brief of author- ities. (6) Hurd's R. S., Chap. 3, ? 40. ^H. II.] GRANTING AND REVOCATION OF LETTERS. 2;^ dowu in section 18 ante (^), if rights thereunder have not already been renounced, would seem to be a safe guide. (^) 28. Suit cannot be maintained against an administrator de bonis non on a contract made by a former administrator, for the reason that no privity of contract exists between them ^ (i) Ante page 9. (2) See brief of authorities, 24 Am. Dec, 382 ; McGarvey vs. Darnall. 134 111., 367. (3) McBeth vs. Smitii, 2 Brevard, 565; Alsop vs. Mather, 8 Conn., 584 : Lusconib vs. Ballard, 5 Gray, 403. 24 ADMINISTRATOP.S' AND EXECUTORS' BONDS, [cH. HL CHAPTER TIL administrators' and executors' bonds and LIABIlLniES THEREUNDER. 1. Bond of executors— form. 2. When no security required. 3. Bond of administrator. 4. Requiring other security. 5. On application of sureties. 6. Form of new bonds. 7. Two bonds may be taken. 8. Giving new bond under Sec. 32 releases oTd securities. 9. Giving new bond under Sec. 32 does not release old securities. 10. Removal for failure to give new bond. 11. Death of sole executor. 12. Death or disqualification of executor or administrator. 13. Court may take one or more bonds. 14. Court shall examine bonds at January and July terms. 15. Record to be kept. 16. Summons of principals in bonds. 17. When new bond to be required. 18. Failure to give new bond— removal. 19. Liability under new bonds. 20. When not binding on sureties. 21. Devastavit. 22. Liability for taking insolvent security. 23. For releasing a debt. 24. For removing property from the State. 25. For exhibiting an untrue account. 26. For failure to file inventory within three months. 27. For suffering judgment on claim barred by statute 28. For failure to account for debt due from himself. 29. For money recovered for causing death. 30. One administrator liable for his co-administrator. 31. As trustee or executor. 32. Extent of liability. 33. Administrator must use diligence— money stolen, 34. Must redeem incumbered property. 35. Must pay to distributees. 36. Of the demand. 37. Suit against part or all of obligors. OH. vfl.] ADMINISTRATOKS' AND EXECUTORS' BONDS. 25 38. Sureties liable only for assets of estate. 39. Voluntary bond. 40. Surety not in fiduciary relation to estate. 41. Former bond — liability to administrator de bonis non 42. Security for costs. 43. Irregularities in drafting bonds. 44. Liability where letters are revoked. 45. Where bonds are given by each administrator. 46. Where administrator acts in two capacities. 47. Will set aside and executor continues to administer. 48. Sureties may appeal. 49. Sureties may rely on bar of the statute to a claim. 50. When fiduciary relation ceases. 51. Estoppel. 52. Jurisdiction of a court of chancery over remedies on bonds. 53. Form of judgment. 54. Action o. Account may be maintained. 1. Bond of executoe — form. — All executors hereafter appointed, unless the testator shall otherwise direct in his will, and all administrators with the will annexed, shall, before entering upon their duties, enter into bond, wdth good and sufficient security, to be approved by the county court, and in counties having a probate court, by the probate court, in a sum double the value of the personal estate, and payable to the people of the State of Illinois for the use of the parties interested, in the following form, to-\vit : Know all men by these presents, that we, A B, C D and E F, of the county of , and State of Illinois, are held and firmly bound unto the People of the State of Illinois, in the penal sum of dollars, current money of the United States, which payment, well and truly to be made and per- formed, we and each of us bind ourselves, our heirs, executors and admin- istrators, jointly, severally and firmly by these presents. Witness our hands and seals, this. ..day of..., A. D. 18... The condition of the above obligation is such, that if the above bounden A B, executor of the last will and testament of G H, deceased, (or admin- istrator with the will annexed, of G H, deceased, as the case may be,) do make, or cause to be made, a true and perfect inventory of all and singular the goods and chattels, rights and credits, lands, tenements and heredita- ments, and the rents and profits issuing out of the same, of the said deceased, which have, or shall come to the hands, possession or knowledge of the said A B, or into the possession of any other person for him, and the same so made do exhibit in the county court (or probate court) for said county of , as required by law ; and also make and render a fair and just account of his actings and doings as such executor, (or administrator) to said court, when thereunto lawfully required ; and do well and truly fulfill the duties 26 administrators' and executors' bonds. [cII. Ill enjoined on him in and by the said will ; and shall, moreover, pay and deliver to the persons entitled thereto, all the legacies and bequests con- tained in said will, so far as the estate of the said testator will thereunto extend, according to the value thereof, and as the law shall charge him ; and shall, in general, do all other acts which may, from time to time, be required of him by law — then this obligation to hf void : otherwise to remain in full force and virtue. Which said bond shall be signed and sealed by the said executor (or administrator) and his securities, and filed in the office of the clerk of the county court, or office of the clerk of the probate court in counties having a probate court, and spread upon the records ; and that where it becomes necessary to sell the rea) estate of any intestate, for the payment of debts against his estate, under the provisions of this act, or in case real estate is to be sold under the provisions of a will, the court shall require the executor (or admin- istrator) to give further and additional bond, with good and sufficient security, to be approved by the court, in a sum double the value of the real estate of the decedent sought to be sold, and payable to the people of the State of Illinois, for the iLse of the parties interested, in form above prescribed. (^) 2. When security not required. — When any testator leaves visible estate more than sufficient to pay all his debts, and by will shall direct that his executors shall not be obliged to give security, in that case no security shall be required, unless the county court shall see cause, from its own knowledge, or the suggestions of creditors and legatees, to suspect the executors of fraud, or that the personal estate will not be sufficient to discharge all the debts, in which case such court may require security, and the same shall be wiven before or after letters testamentary are granted, notwith- standing any directions to the contrary in the will.(^) 3. Bond of administratok. — Every administrator, except as hereinbefore in Sec. eight (8) provided, shall, before entering upon the duties of his office, enter mto bond, with good and sufficient security, to be approved by the county court, and in counties having a probate court, by the prol)ate court, in double the value of the personal estate, and payable to the people of the State of Illinois, (1) Hurd's R. S., Chap. 3 ? 7, as amended by act of 1881 ; Wyman vs. Campbell, 6 Porter, 219. (2) Hurd's R. S., Chap. 3, 'i 8. OH. III.] administrators' and executors' bonds. 27 for the use of the parties interested, substantially in the followino form, to-wit : Know al! men by these presents, that we, A B, C D and E F, of the SiOunty of. , and State of Ilhnois, are held and firmly bound unto the People of the State of Illinois in the penal sum of dollars, current money of the United States, which payment, well and truly to be made and per- formed, we and each of us bind ourselves, our heirs, executors and admin- istrators, jointly, severally and firmly by these presents. Witness our hands and seals, this. ..day of...,i8... The condition of the above obligation is such, that if the said A B, administrator of all and singular the goods and chattels, rights and credits of J K, deceased, do make, or cause to be made, a true and perfect inventory of all and singular the goods and chattels, rights and credits of the said deceased, which shall come to the hands, possession or knowledge of him, the said A B, as administrator, or to the hands of any person or persons for him ; and the same so made, do exhibit, or cause to be exhibited, in the county court (or probate court) of the said county of. , agreeably to law; and such goods and chattels, rights and credits, do well and truly admin- ister according to law, and all the rest of the said goods and chattels, rights and credits, which shall be found remaining upon the account of the said administrator, the same being at first examined and allowed by the court, shall deliver and pay unto such person or persons, respectively, as may be legally entitled thereto ; and further, do make a just and true account of all his actings and doings therein, when thereunto required by the said court ; and if it shall appear that any last will and testament was made by the deceased, and the same be proved in court, and letters testamentary or of administration be obtained thereon, and the said A B do, in such case, on being required thereto, render and deliver up the letters of administration granted to him as aforesaid, and shall in general do and perform all other acts which may at any time be required of him by law, then this obligation. to be void : otherwise to remain in full force and virtue. * Which said bond shall be signed and sealed by said adminis- trator and his securities, attested by the clerk of the county court or probate court, and filed in his office, and that where it becomes necessary to sell real estate of any intestate for the payment of debts against his estate, under the provisions of this act, the court shall require the administrator to give further and additional bond, with good and sufficient security, to be approved by the court, in a sum double the value of the real estate of the decedent sought to be sold, and payable to the people of the State of Illinois, for the use of the parties interested, in the form above prescribed. And in all cases where bonds shall be taken from any administrator de bonis * Note. — The failure of aii admiuistrator to give boud renders his appointmeut void, but a defect m tlie bond make.s the aiipuintment voidable ouly. Exparte Maxwell, b7 Ala., 362 ; Peebles vs. Watts, 9 Daua, livti 28 administrators' and executors' bonds, [ch. ni. non, or in any other case where a form shall not be prescribed in this act, the same shall be made, as nearly as may be, in conformity with the form above prescribed, with corresponding variations to suit each particular case.(^) 4. Requiring other security — duty of court. — One of the most important duties of a court havin:^ probate jurisdiction, is the taking'and approval of the securities upon the bonds of admin- istrators, executors and guardians. A bond ample for the security of those interested when taken, may, under the nuitations of fortune incident to this day, soon become in part or wholly inadequate for their protection. The statute requires the county court at the January and July terms to inform itself of the condition and suffi- ciency of each bond.(^) When any court grants letters, testamentary or of administration, of the estate of any person deceased, without taking good security as aforesaid, or when any security heretofore or hereafter taken becomes insufficient, the court may, on the application of any person entitled to distribution, or otherwise interested in such estate, require such executor or administrator to give other and sufficient security; and in default thereof the letters, testamentary or of administration, shall be revoked, and administration de bonis non granted ; but all acts done according to law by the executor or administrator so removed prior to such revocation, shall be valid. ('^j 5. Petition of security for release. — Whenever any ^'Urety on the bond of any executor or administrator desires to be released from further liability upon any such bond, he may petition the court in which said bond is filed for that purpose, and upon notice being given to the executor or administrator, as the court may direct, the court shall compel such executor or administrator, vvitliin a reasonable time, to be fixed by the court, to settle and adjust his accounts, and pay over whatever balance may be found iu his hands, and file in such court a new bond, in such penalty and security as may be approved by the court — which being done, the surety may be discharged from all liability on such bond.('*) (i) Kurd's R. S., Chap. 3, ? 23, as amended by act of 1881; VVyman vs. Campbell, 6 Porter, 219. (2) Hurd's R. S., Ciiap. fo3, §4. (3) Kurd's R. S., Chap. 3, 1 32 ; Meek vs. Allison, et al., 67 111., 46 ; Fos- ter vs. Brown, i liailey's Law, 221 ; Bigelow vs. Cigelow, 4 Ohio, 138. (4) Hurd's R. S., Chap. 3, 'i 35. CH. III.] ADMI^^STRATOE.s' AXD EXECUTOPJS' BONDS. 29 When a surety for an executor or an administrator, or his repre- sentatives, may conceive himself or themselves in danger of suffer! nw by the mismanagement of such executor or administrator, and shall petition the county court &r relief, in writing, setting forth th« cause of such apprehension, the said court shall examine such peti- tion, and if the court shall deem the causes therein set forth sufficient to entitle such petitioner or petitioners to relief, if true, he shall summon such executor or administrator to show cause against such j^etition ; and may dismiss the same, or direct such executor or administrator either to give good counter security to save such petitioner or petitiouers harmless, or to give a new bond in the like penalty as the first ; and upon refusal or neglect to give such counter security or new bond, the letters granted to such executor or administrator, may be revoked. (^) The word may, although seeniiug to authorize the use of a discretion by the court, inasmuch as the rights of the securities are imperiled, should, under an accepted rule of construction, always be construed to be shall.i^) 6. Form of xew boxd. — Should a new bond be required bv the court, under either of the above sections, the condition of such new bond will require him to keep and to have kept and performed the condition of his former bond in all respects according to law, and in all respects perform and have performed his duty as admin- istrator, according to law. AVhich bond shall have relation back to the time of granting letters of administration. (^) 7. Two new bonds may be taken. — If, instead of taking one bond, the administrator or executor elects to give two bonds, the aggregate amount of whose penalties equals that of the first bond, this will be a compliance with the law.('*) 8. Release of securities on old bond. — The execution and approval of a new bond as required in the foregoing section of the statute, (Sec. 33) operates as a release of the securities upon the old bond from all liability for past as well as for the subsequent acts of the principal. (^) (i) Hurd's R. S., Chap. 3, ? 33. (2) Glimvater vs. M. & A. Railroad Co., 13 111., i; Ladd vs. Griswold et aL, 4 Oilman, 25; Malcom vs. Rogers, 5 Cowan, 188. (3) Hurd's R. S., Chap. 3, ? 34. (4) People vs. Lett et al., 27 III., 215. (5) Id; Pinkstaffet al. vs. People, 59 111., 148. 30 administrators' and executors' bonds, [cii. iti. 9. Does not release old bond. — A bond given by an executor or administrator, under section 32 above given, upon a requirement originating with the court, does not discharge the securities upon the former bond.(^) 10. Removal for failure to comply. — If such executor or administrator shall fail to comply with such order within the time fixed by the court, the court shall order that such executor or admin- istrator be removed from his office, and shall appoint some other fit person as administrator, with the will annexed, or de bonis non, who shall give a bond as required by law. And in case of the failure of the former executor or administrator to settle his accounts and to pay over to the person so appointed all moneys, effects or choses in action in his hands by reason of his said office, then such successor shall proceed to collect the same by suit against such executor or administrator, or by suit upon his bond ; and upon collection thereof such surety shall be discharged. (^) 11. Death of sole executor, etc. — When a sole or surviving executor or administrator dies, without having fully administered the estate, if there is personal property not administered, or are debts due from the estate, or is anytliing remaining to be performed in the execution of the will, the county court shall grant letters of administration, with the will annexed, or otherwise, as the case may require, to some suitable person, to administer the estate of the deceased not already administered : Provided, that when there is still a surviving executor or administrator, he may proceed to administer the estate, unless otherwise provided. (^) By the enactment of the above section, the legislature did not intend to confer upon the administrator with the will annexed, all the powers given to the executor by the will of the testator.(*) 12. Death or disqualification of executor, etc. — Where the letters of one of several executors or administrators is revoked, or one or more of the executors or administrators die or become disqualified, the court may join otliers in their place, and require additional bonds from the new administrator or administrators, or (i) People vs. Curry, 59 111., 35. ' (2) Kurd's R. S., Chap. 3, ^ 36; Branch vs. Rankin, 108 111., 444. ^3) Hurd's R.S. Chap. 3, ^37. (4) NicoU vs. Scott et al., 99 111., 536; Hall vs. Irwin, 2 Gil., 176. CH. III.] administrators' and executors' bonds. 31 the survivor or survivors, or such as shall not have their powers revoked, shall proceed to manage the estate. When the letters of all of them are revoked, or all of such executors or administrators die before final settlement and distribution of the estate, adminis- tration, with the will annexed or de bonis non, shall be granted to the person next entitled thereto. (^) 13. Joint and several bonds. — When two or more persons are appointed executors or adaiinistrators of the same estate, the court may take a separate bond, with sureties, from each, or a joint bond, with sureties, from all.(^) 14. Bonds filed with county clerk or clerk of county court — JUDGE TO EXAMINE, ETC. — It shall be the duty of the judge of the county court of each county, at the terms of said court to be held in the months of January and July of each year, on the first day of the term, in open court, to examine and inquire into the sufficiency of all official bonds required by law to be filed in the office of the county clerk, or of the clerk of the county court, includ- ing bonds of executors, administrators, guardians and conservators.(^) 15. Record to be made. — It shall be the duty of the said judges to cause to be entered upon the records of their respective courts, at the times hereinbefore prescribed for the making of such examinations, that an examination and inquiry into the sufficiency of the official bonds within their cognizance has been made, and that they are severally deemed sufficient, or insufficient, as the facts may justify. (*) 16. Summons to show cause. — If, upon any examination by either of said judges, he is of opinion that for any reason the bond of any offiaer is insufficient, he shall cause to be issued from his court a summons to such officer to appear before said court on a day fixed therein, to show cause why he should not be required to give a new bond with sufficient surety. (^) 17. When new bond to be required. — Unless it is shown to the court that such bond is insufficient, the court should require a new bond to be given with sufficient sureties, within such time as the court may direct, not to exceed thirty days.(^) (i) Kurd's R. S., Chap. 3,'| 38; Branch vs. Rankin, loS 111., 444. (2) Hurd's R. S., Chap. 3, ^ 24. (5) Hurd's R. S., Chap. 103, | 7. (3) Hurd's R. S., Chap. 103, i^ 4. (6) Hurd's R. S., Chap. 103, § 8. (4) Hurd's R. S., Chap. 103, ^ 5. 32 administrators' and executors' bonds. [CH. III. 18. Failure to give. — A failure to comply with any order of the court requiring a new bond, works a removal of such executor or administrator from his office.(^) 19. Liability under bonds. — All bonds which may at any time be given by any executor or administrator, either with or without the will annexed, or de bonis non, to collect, or public administrator, may be put in suit and prosecuted against all or any one or more of the obligors named therein, in the name of the People of the State of Illinois, for the use of any person who may have been injured by reason of the neglect or improper conduct of any such executor or administrator, and such bonds shall not become void on the first recovery thereon, but may be sued upon, from time to time, until the whole penalty shall be recovered : Provided, that the person for whose use the same is prosecuted, shall be liable for all costs which may accrue in tlie prosecution of the same, in case the plaintiffs fail in their suit ; and certified copies of all such bonds, under the seal of the clerk of the county court, shall be received as evidence to authorize such recovery in any court of law or equity of competent jurisdiction.(*) 20. A l)ond not signed by the administrator is not binding on the sureties.(^) 21. Devastavit. — A devadavit is a mismanagement and waste by an executor or administrator of the estate and effects trusted to him, as such, by which a loss occurs — such as the selling, embez- zling or conversion to his own use by the executor or administrator, of the moneys or goods of the estate. The payment of claims not owing by the estate, or the payment of claims out of their order, or paying legacies before debts, are each recognized as instances of a devastavit. The selling of goods at private sale at inadequate prices, suffering the effects of the estate to become wasted, and the neglect to collect a debt due the estate, whereby it is. lost, are each recognized by the common law as a devastavit. The law requires of these officers, as of all who act in a fiduciary character, due diligence, the want of which and consequent loss to those interested (i) Hurd's R. S., Chap. 103, § 9. (2) Hurd's R. S., Chap. 3, ^ 25 ; People vs. Randolph, 24 III., 324 ; People vs. Summers, 16 111., 173. (3) Wood vs. Wasliburne, 2 Pick., 24. CH. III.] ADMINLSTRATOUS' AND EXECUTORS' BONDS. 33 in the estate, is punished by making tliem responsible for the losses which may be sustained; when, therefore, an administrator or executor has been guilty of a deoastavit, he is required to make up the loss out of his own estate. (^) At common law, in order to charge the sureties on an adminis- trators' bond, it was first necessary to establish a devastavit.[^) In Illinois it is provided that in order to a recovery upon the bonds of administrators or executors, it shall not be necessary to establish a ievastavit against the principal ; but whenever such administrator or executor has violated any condition in his bond, the sureties become liable to answer for the damages, (^) 22. Foe taking insolvent security. — Where an adminis- trator, on sale of personal property belonging to the estate, received the notes of the purchaser with security, and it resulted that the principals and sureties were insolvent, this will show prima facie, that the administrator had neglected his duty, and was guilty of a devastavit. (^) If an administrator neglects to take good security, or if he takes as sureties those who live beyond the jurisdiction of the courts of this state, and a loss thereby occurs, he will become liable.(^) 23. For releasing a debt. — If an administrator or executor compounds or releases a debt, he is responsible at law for the whole amount which was due.(^) 24. For removal of property without the state. — The statute(') forbids the removal beyond this state, by an executor or administrator, of any property of his testator or intestate, wherewith he is charged, and authorizes the summary removal of the offender and a suit upon his bond, as a penalty for such removal. 25. Untrue account. — If an administrator exhibits an untrue account of the personal estate to the court, and so fraudulently obtains a sale of the real estate, he must not only account for the (i) Bouvier's Law Dictionary, Vol. i, p. 417; Curry vs. People, 54 111., '.6y, Estate of Corringiou, 124 111., 363. (2) Biggs vs. Postlewait, Breese, 154. (3) Kurd's R. S., Chap. 103, ? 13 ; Tucker vs. People, 87 111., 76. (4) Curry et al. vs. People, supra. (5) Roberts vs. Adams, 2 S. C, 337; King vs. King, 3 Johns., Ch. 552; Orcutt vs. Orms, 3 Paige, 459. (6) DeDiemar vs. Van Wagenen, 7 Johns., 404 ; i Dane's Ab., 590. (7J Kurd's R. S., Chap. 3, 'i 85. 34 administrators' and executors' bonds, [ch. hi. personal property omitted in the account, but for the value of the real estate at the time of bill filed. (^) 26. Failure to file inventory withtx three months. — An administrator failing to file an inventory as provided by law(^j within three mouths from the date of letters, he becomes liable in a suit on his bond, alleging such failure as one of the breaches ; but .to recover more than nominal damages, the plaintiff must allege and prove substantial injury. (^) In such a suit, evidence tending to prove any particular failure on the part of the administrator to perform the duty imposed upon him by the law, is inadmissible, unless the declaration contains a breach averring such neglect of duty.(^) 27. For suffering judgment on claim barred. — It is the duty of an administrator to interpose the statute of limitations and all known defenses to claims presented against the estate in his charge ;(^) and failing to do so, he is liable upon his bond.(^) 28. Where administrator fails to account for a debt due from himself to deceased. — Where a debtor of the deceased becomes administrator or executor of such decedent, his debt is considered paid, and from that time becomes assets in the hands of the administrator or executor, for the proper application of which the securities on the bond become liable ;(') and a subsequent removal of such administrator or executor, and the appointment of an administrator de bonis non will not revive the debt so as to enable the maintenance of a suit on the original cause of action. (^j* (i) Hart vs. Ten Eyck, 2 Johns., Ch. 62. {2) Hurd's R. S., Chap. 3, 'i 51. (3) People vs. Hunter et al., 89 111., 392. (4) Id. (5) McCoy vs. Morrow, 18 111., 519; Unknown Heirs of Langworthy vs. Baker, 23 111., 484 ; Dawes vs. Shed, 15 Mass., 6. (6) Gold et al. vs. Bailey, 44 111., 491. (7) Bi.ijelow vs. Big-elow, 4 Ohio, i ^S ; Winship vs. Bass, 12 Mass., 198: King vs. Green, 2 Stewart, 133; i Dane's Ab., 562; Beall vs. Hilliary, i Md., 186. (8) Hall vs. Pratt, 5 Ohio, 72. *NoTE. — An Iowa decision, rendered in 18G9, denoii/ices the above rule as " arbitrary, unjust in its effacta, and uusupporfed by reason, and ou^iit oercaialy to be received with 1 ttle favor by the courts of the present day."(l) The decision furt ilm- holds the rule to be, that the liability of the executor is not r^-l ased or discharged, but the debt is, in his hands, general assets of the estate for the benefit of creditors, legatees, and all other parties interested, upon which a subse- queut administrator coming into possession of the evidence of the debt, may maintain a suit. The court cites authorities 21 in support of its position, but the role laid down in Bigelow vs. Biyelow, sujjra., seems to be the better rule. (1) Raster vs. Pearson, 21 Iowa. 90. (•i) Stevens vs. Gaylord, 11 Mass.. 23fi ; Winship vs. Bass et al., 12 Id., 202; Pusey vs. Clemson, 9 Serg., and Eawii. 208: Leland vs. Kelton. 1 AM"ii..^31: Kii'hi-lherEi'r vs. Morri.s. B Watts, 43 ; Hall vs. Pratt, 5 Uammoud, 72 : Gardner vs. Hjer, 19 Johnson, 187; Charles vs. Jacobs, 9 Richardson, (S. C.J, 295 ; see American Probate Keporta, 85, lor brief. CH. ITT.] ADIfrN-JSTTIATnTls' AND EXKCTJTORS' JS0WDS. 25 29. For money recovered for caustnto death. — ^^Vllere money is paid into the hands of an administrator in settlement of a claim made by the administrator for negligently causiog the death of his intestate, under the statute,(') such money becomes assets in the hands of the administrator, to be distributed accordim^ to law among the widow and next of kin, and sureties must respond for any failure to so distribute such inoney.(^) 30. One administrator liable for co-administrator. — One of several administrators is liable for the acts done by either while the relation continues ; but this liability ceases to attach to such of them as are removed from office, for all acts done after the removal.(^) The administrator is liable, if at all, as principal, and not as surety for his co-ailuiinistrator.(*) But in no case is one liable for the torts or waste of tiie other. (^) 31. Liability as trustee or executor. — Wlicre executors are made trustees of a fund ai-ising from the estate, and have received the fund in contemplation of law as trustees, it is demandable from them only in that capacity. (^) As trustees over real est^ate, although made so hy the ^vill of a deceased person^ they are not within the power of the probate court, but of a court of chancery. Where, however, the accounts of such trastees have been received and adjusted in the court of probate, the court of chancery will adopt such action, provided it appears that the rights of infant parties have been properly protected.(''') 32. Extent of mabiuty. — Where the administrator of an estate dies, and his surety on his bond succeeds him, and he is sued as such surety on the bond, he will be liable in such suit only for the acts of the deceased administrator, and not for moneys that came into his hands as such successor.C^) 33. Administrator must use diligence, — If an adminis- trator, when acting for the estate, uses proper diligence, and acts (i) Hurd's R. S., Chap. 70, I i. (2) GoltVa et al. vs. People, 53 111., 224 , Perry vs. Carmichael, 95 III., 519. (3) Marsh et al. vs. People, 15 111., 284; McKim vs. Aulbach, 130 Mass., 481. (4) Id. Crofts vs. Williams, 88 N. Y., 384. (5) Brazier vs. Clark, 5 Pick., 96; see 2 Probate Reports, 256. (6) Jacobs vs. Bull, i Watts, 370. (7) McSorley vs. McSorley, 4 Sand., Ch. 414. (8) People vs. Allen, 86 111., 167. 36 administrators' and executors' bonds. [cH. III. with ordinary care and circani -poction in the discharge of his triist, he should not be held answerable for losses which could not have been foreseen, and which ordinary precaution might not guard against. The general principle which seems to run through all the authorities as to his liability, recognizes the doctrine that if he acts in good faith, honestly and prudently, though there be a loss to, and a diminution of, the estate, he will not be liable. (^) Where money belonging to an estate was stolen by burglars from the safe of the administrator, the court, upon being satisfied that the admin- istrator had been guilty of no want of due ctire, held, that he should be discharged as to the money so lost.^^^j Where a testator had trusted a banker, and at the time of his death had stocks deposited with him, which the executor after svards allowed to remain with him on deposit, and which stocks were lost on account of the subse- quent insolvency of the banker, it was held that the executor should not be chargeable on account of such loss. ^ The deposit of funds in the name of the administrator in a bank outside of the state is illegal, and loss, if any, falls on him.(^) On the other hand, if an administrator fails to make use of that degree of diligence in collecting and caring for the assets of the estate, which a reasonably prudent man would exercise in the care and management of his own affairs, and loss to the estate thereby occurs, he will be held to make good such loss.(^) Where an administrator held money belonging to the estate long after he should have reported it to the court and distributed it, and until the banker holding it as a deposit had failed and gone into bankruptcy, he cannot charge such loss to the estate, although the credit of the bank was good at the time of the deposit.( ^) 34. Redeem mortgaged lands. — Where the real estate of the intestate is mortgaged, or has been sold under execution, the administrator, if he have assets sufficient in his hands to effect a redemption thereof, or if he could have raised money upon the assets of the estate, should redeem from such mortgage, and failing (i) Christy at al. vs. McBride, i Scam., 75; Rowan vs. Kirkpatrick, 14 111., i; Thompson vs. Brown, 4 Johns., Ch., 619. (2) Stevens vs. Gage, 55 New Hampshire, 175; Furman vs. Coe, i Cai. C. 96 ; Raynor vs. Pearsall, 3 Johns., Ch., 578. (3) Rowth vs. Howell, 3 Ves., 565; McCabe vs. Fowler, 84 N. Y., 314; see 2 Probate Reports, 130, for brief; Spaulding vs. Wakefield, 53 Vt., 660. (4) Harward vs. Robinson, 14 111. Ap., 560. (5) Whitney et al. vs. Peddecord et al., 63 111., 249; McElheney vs. Musick, Id. 328 ; see 75 Am. Dec, 799, for brief. (6) Rucker vs. Redmon, 67 111., 187; Williams vs. Williams, 55 Wis.. 300. CH. III.] administrators' and executors' bonds. 37 to do so, becomes liable to those interested who may suffer loss.(*) 35. For failure to pay over.— The statute also provides, that if any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pureuance of the order of the county court lawfully made, within thirty days after demand made, such failure or refusal shall be deemed a devastavit, and an action upon such executor's or administrator's bond, and against his securities, may be forthwith instituted and maintained, and such foilure to pay, shall be a sufficient breach to authorize a recovery thereon. (^) Since the adoption of these provisions, waiving the requirement of the common law, it is no longer necessary to aver and prove ii technical devastavit, but, after reciting the ap; oint lent the execu- tion of the bond and the condition thereof, the pleader mav assign such breaches of the condition of the bond as the natui-e of his case will admit. (^) Under the authority of Section 114 above quoted, it has been held that an order of the county court directing an administrator to pay over money in his hands to the lieir or to the administrator de bonis non, the court at the time having jurisdiction of the person of the administrator, is conclusive upon the sureties upon the bond in a suit to recover against them for a failure of the administrator to comply with such order, and miy not be questioned.(^) No reason is perceived why this rule should not apply to all orders made upon administrators and executors to pay money in their hands to claimants, legatees, &c. By the terms of the condition of the bond, the sureties undertake that the administrator " shall deliver and pay unto such person or persons respectively, as mav be legally entitled thereunto," whatever property or money " shall be found remaining upon the account of the said administrator the same being first examined and allowed bv the court. "(^) 36. Demand. — As a general rule, a demand for the payment of any sum claimed from the administrator as such is necessary (i) McCreedy vs. Mier et al., 64 II!., 495; Kurd's R. S., Chap. 77, | 18; Evartson vs. Tappan, 5 Johns., Ch. 497; contra, Stiger vs. Bent, 11 1 111. 336. (2) Kurd's R. S., Chap. 3, \ 114. (3) Kurd's R. S. Chap, no, \ i\. (4) Ralston et al. vs Wood. 15 III., 159; People vs. Koush, 66 111., 17S; see 58 Am. Dec, for brief of authorities. (5) Kurd's R. S, Chap. 3, I 23; State vs. Holt, 27 Mo., 340. 38 administrators' and executors' bonds. [cH. III. before bringing suit ; (^) but where the administrator is dead,(^) or has removed from the state,(^) a demand being impossible or impracticable, need not be averred. 37. Suit against part of the obligors. — Suit may be maintained against a portion or all of the obligors upon the bond of an administrator or executor, at the option of the plaintiff, and it is no irregularity or error to omit joining all,(*) as in ordinary suits upon contracts. 38. Liability of sureties. — The sureties on the bond of an administrator or executor, are liable only to the extent of sUch assets as properly belong to the estate, which came to the hands of the principal, or might have come to his hands, by the exercise of proper vigilance ; so, where funds come to his hands which are not legal assets, though he charges himself with them, his sureties are not liable for their loss.(^) 39. Voluntary bond. — Any obligation entered into volun- tarily and for good consideration is valid at common law, unless it contravenes the policy of the law, or is repugnant to some provision of the statute. So, where a bond was entered into informally, by which one received the appointment of administrator and the custody of property, neither he nor his securities could plead such informalities as a defense,(^) 40. Surety not in fiduciary relation. — A surety occupies no fiduciary relation to the estate, and may buy up claims against it at a discount for his own advantage.C^) 41. Bond of former executor, etc. — liability. — In all cases where any such executor or administrator shall have his letters revoked, he shall be liable on his bond to such subsequent admin- istrator, or to any other person aggrieved, for any mismanagement of the estate committed to his care; and the subsequent administrator may have and maintain actions against such former executor or administrator for all such goods, chattels, debts and credits as shall (i) Bedell vs. Janney, 4 Gilm., 193. (2) People vs. Admire, 39 111., 251. (3) County of Warren vs. Jeffrey, 18 111., 329. (4) People vs. Miller et al., i Scam., 85; Hurd's R. S., Chap. 3, ^ 25; Curry vs. People, 54 111., 263. (5) Shields vs. Smith, 8 Bush., (Ky.) 601. (6) Pritchett et al. vs. People, i Gil., 525. (7) Halstead vs. Hyman, 3 Brad., 426. CH. III.] administrators' and executors' bonds. 39 have come to his possession, and which are withheld or have been wasted, embezzled or misapplied, and no satisfaction made for the same.(^) At the common law no action could be maintained by an administrator de bo7iis non a:^aiust a former administrator or executor, nor his legal representatives, for an account for any part of the estate sold, converted or wasted. Such goods as remained in specie, and debts due to the testator or intestate, alone came to the hands of the administrator de bonis non. The right of action for money converted or wasted by the former administrator or executor, was in the creditor or heir of the deceased.(2) lu Bowan vs. Ku'kpatnch,{^) and in Ncwhall vs. Turney,{*) where the right of the administrator de bonis non to recover from the legal representatives of the former administrator, for assets of the estate converted by him in his lifetime was involved, the court decided, without discriminating between cases where the adminis- trator was removed by the court, and where he died, that in no case could the administrator de bonis non recover from a prior administrator or his representatives, assets converted by him. In Harsh et al- vs. People,i^) the court, citing the above section of the statute, say that it changes tlie common law so far as to permit the administrator de bonis non to recover the assets of the estate from a former administrator, where he had been removed by order of the court, leaving the common law in force so far as it applies to deceased administrators and their legal representatives. The same court in Stose vs. People,{^) and in McOreary vs. Neiobernj,{') ignoring the above statute, and the decision in Marsh vs. People, supra, held the common law above quoted still in force. The case of Stose vs. People, was specially overruled in Puffin et al. vs. People,{^) citing the case of Marsh et al. vs. People, and the distinction made between cases where the administrator dies, and where he resigns, i^) (i) Kurd's R. S., Chap. 3, ^ 39. (2) 4 Bacon's Abridgement, 24; Slaug-hter vs. Froman. 5 T. B. Monroe, 19; Chamberlain vs. Bates, 2 Porter, (Ala.), 550; Potts vs. Smith, 3 Rawle, 361; Stubblefield vs. McRaven, 5 Smedes & M., 130; Kelley vs. Keiley, 9 Ala., 908. (3) 14111., I. (4) 14 111-, sag- Is) 15 111., 284. (6) 25 111., 600. (7) 25 111., 496. (8) 48 111., 17. (9J Hannifin vs. Needles, loS 111., 403. 40 administrators' and executors' bonds. [cH. III. It may noAV be said, that upon the revocation- of letters and the appointment of an administrator de bonis non, the law requires the former administrator or executor to fully account to the court, and place the new administrator in possession of all assets of whatever nature remaining in his hands, belonging to the estate, and upon his failure to do so, after demand and the expiration of thu-ty days, suit may be maintained upon his bond. An administrator de bonisnon may maintain an action in his own name as such on notes executed to a former administrator as such, and which have come to the hands of the administrator de6o7w's non as assets of the estate. v^/ As it has been held, that the acceptance by the court of the resignation of an administrator, is equivalent to a removal,('^'j the same rule would apply to cases of resignation followed by the appointment of a successor. But in cases where the executor or administrator dies, the administrator de bonis non can only recover such assets as have not been reduced to money, while the unpaid creditor, legatee or heir, may call upon the legal representatives of the deceased executor or administrator for an account of such assets as have been reduced to money or converted. 42. Security for costs. — That in all actions in any court of record on official bonds for the use of any person, actions on the bonds of executors, administrators or guardians, qui tarn actions, actions on a penal statute, and in all cases in law or equity, where the plaintiff, or person for whose use an action is to be commenced, shall not be a resident of this state, the plaintiif, or person for whose use the action is to be commenced, shall, before he institutes such suit, file, or cause to be filed, with the clerk of the court in which the action is to be commenced, security for costs, substantially in the following form : A B, vs. C D— (Title of Court.) I, (E F,) do enter myseif security for all costs which may accrue in the above cause. Dated this. ..day of.-, A. D. i8... (Signed) E F. Such instrument shall be signed(^) by some responsible person, being a resident of this state, to be approved by the clerk, and shall bind such person to pay all costs which may accrue in such action, either to the o])posite party or to any of the officers of the court in (i) Maraman vs. Trunnell, 3 Metcalf, 146. (2) Marsh et al vs. People, 15 111., 2S4. (3) Kurd's R. S., Chap. 33. 'i 1. en. iii.j administrators' and executors' bonds. 41 >vhich the action is commenced, or to which it is removed by change of venue or appeal. (') If any such action shall be commenced without filing such instrument of writing, the court, on motion, shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon, unless the security for costs shall be filed within such time as shall be allowed by the court, and when so filed, it shall relate back to the commencement of the suit ; the right to require security for costs shall not be waived by any proceeding in the cause.( " j Any person who may have been injured by reason of the negli- gence or improper conduct of the administrator, may sue upo;^ the bond in the name of the People of the State of Illinois for his use, and one recovery will not bar a future suit by any other person who has suffered injury ; but he may maintain his suit, and so on, until the entire penalty of the bond shall have bsen recovered,(-') wlic'i a plea of such recovery would bar future suits. To entitle an injured creditor to maintain a suit on such a bond, his claim must have been allowed in some court of competent jur"s- diction, and it need not be in a court of probate/ *) 43. Irregularities in drafting bonds. — The omission of the names of the sureties from the blanks left for them in tJ'e body of the bond, will not invalidate it as to such suretie.- f *) nor will any mistake therein apparent on its fiice, vitiate such bond.( '^) 44. Revocation of letters. — AYhere the letters of "n exec- utor or administrator are revoked by the court, the sureties are released from all future, but not the past liabilities.( ^) 45. Where there are two administrators. — Where a joint bond is given by two administrators, the sureties are not liable to one administrator for property of the estate converted by the other. (") 46. Acting in two capacities. — Where the same person acta as administrator of an estate, and at the same time as executor or guardian of the deceased heir or distributee, after the debts and liabilities of the estate have been settled, or the expiration of the two years allowed for administration, he will be regarded as hold- (i) Hurd's R. S., Chap. 33, § 2. (2) Hurd's R. S., Chap. 33, 'i 3. (3) Hurd's R. S., Chap. 3, § 25 ; People vs. Randolph et al., 24 111., 324. (4) Teople vs. Allen, 8 111. Ap., 17. (5) Neil vs. Morgan et al., 28 111., 524. (6) Moore vs. Chapman, 2 Stewart, 466. (7) People vs. Lott et al., 27 111., 215. (8) Slaughter vs. Froman, 5 T. B. Monroe, 19. 42 administrators' and executors' bonds. [cH. III. ing the p-rrcess in his capacity of executor or guardian of the distributee, although he may not have rendered his final account as adiuini^^trator, and the order of distribution was never made. In such a case, the sureties upon his bond as administrator, are discharged from their liability,(') and the' sureties upon his bond as guardian, become liable for a waste or diminution of the fund.(^) 47. Will being set aside. — Where by a decree of the circui) court, the will of a deceased person was set aside, and the adminis- trator witn the will annexed, was directed by the decree to admin- isi-^r the property as intestate property, such proceedings will not operate to discharge the securities on the bond, if the administrator continues to act as sucli.(^) 48. Right of sureties to appeal. — Sureties upon the bonds of administrators and executors, may appeal fruui any order of the county court which may ultimately effect their liability, in the same manner that the principal may do.(*) 49. Statute of limitations. — Where an administrator suffers a judgment on a claim due from his decedent, barred by the statute of limitations, to be rendered against him, and suit is brought by the owner of such judgment against the bond of such administrator, the securities thereon may insist upon the defense the administrator might have made.(^) 50. Relation changes. — After the settlement of the accounts of an executor or administrator, and an order of distribution, the fiduciary capacity of the officer ceases, and the statute of limitation begins to rnn,(^) but not until then.C') 51. Estoppel. — One who has signed the bond of an executor or administrator, containing a clause reciting such an official character, is estopped from denying the appointment to and acceptance of the office.(, ") So, both the principal and sureties, in an administrator's bond, are estopped from denying the jurisdiction of the court to grant the letters.( 9) (i) Weir vs. People, 78 111.. 192 ; Bell at al. vs. People, 94 III, 230. (2) Carroll vs. Bosley, 6 Yerger, 220; See other authorities in note on page 461, 27 Am. Dec; State vs. Hearst, i2_Mo., 365. (3) Bell etal. vs. People, supra. (4) Rawlston vs. Wood, 15 111., 159. (5) Dawes vs. Shed, 15 Mass., 6. (6) App vs. Dreisbach, 2 Rawle, 287. {7) Bonham vs. The People, 102 111., 439. (8) Arnott et al. vs. Friel, 50 111., 174; Smith vs Whittaker, 11 111., 417- (9) People vs. Falconer, 2 Sand., 8r. OH. in.] ADMrNISTIiATORS' AND EXECUTORS' BONDS. 4' 52. Jurisdiction of chancery. — Where administrators liave given several bonds, and tiiere is a complication of interests, result- ing from the death of one of the administrators and of some of the sureties, whose legal representatives cannot be made parties in a joint action at law upon the bonds, a court of equity will entertain jurisdiction at the suit of any party interested. In such a case, all the securities on all bonds or their representatives if deceased, should by made parties, and upon a final hearing, if anything in the nature of damages be found due the complainant, the same should be apportioned for payment among the different classes of sureties, as would appear equitable and just.(^) The section of the statute, (Sec. 25, Chap. 3,) giving an action against all or any of the obligors, has reference only to actions at law.(^) If an administrator makes fictitious reports to the county court, falsely charging himself with money not in fact due from him, for the fraudulent purpose of making his surety liable, a court of equity would, doubtless, interfere at the suit of the surety on the bond, to correct such reports, and make them conform to the truth as to the amount of money actually owing by the principal. (^) 53. Form of judgment. — Where judgment for the plaintiiF is rendered in a suit upon bonds ordinarily, the judgment should be for the full penalty of the bond, to be discharged by the payment of the damages and costs ;(*) but it has been held, under the peculiar wording of our statute, giving a right of action upon bonds of administrators to any person injured, that this technicality of the common law practice is done away with, and that judgment in debt may be rendered for the entire or a part only of the penalty, to be discharged upon the payment of the damages, or judgment may be rendered for the damages only as in assum23sit.(^) 54. Action of account may be maintained. — The action of account may be maintained by and against executors and admin- istrators, to recover legacies and debts due from the estate of the intestate. (^) (i) People vs. Lett et al., 27 111., 215. (2) Id. (3) Fogarty et al. vs. Ream et al., 100 111., 366. (4) Eggleston et al. vs. Buck, 31 111., 254; i Chitty's Pleadings, 115. (5) Pinkstaff et al. vs. People, 59 111., 148; People vs. Sammers, 16 111., ^7^: People \s, Randol|)!i et al., 24 111., 324. (6) Kurd's R. S., Chap. 2, I i. 14 DUTIES AND LIABIFilT TES. J^. IV CPIAPTER IV. DUTIES AND ETABILriTES OF EXECUTORS AND ADMINISTRATOlt'^. 1. Duties pi escribed by law. 2. Giaiit of letters relates back. 3. Duty of person named as executor in will. 4. Power before probate of will. 5. Administrator an officer. 6. Death of part of executors. 7. Power of one of several executors. 8. Power of administrator with tlie will annexed. 9. Succeeds to title to personalty. 10. Liable for such as by diligence may be received'. 11. Courts to hold them liable for abuse oi trust, but not upoii siiglit grounds. 12. For loss by fire. 13. Should collect foreign debts. 14. Must not continue a partnership relation. 15. Power over real estate. a. How available. d. No power to put one in possession. 16. When ejectment may be maintained. 17. Rents. iS. Must redeem real estate. 19. Liability to third parties. 20. As garnishee. 21. Cannot loan the money of the estate. 22. Not liable for costs. 23. Acting as administrator and gu-i.xlian. 24. Cannot bind heirs by his action. 25. Cannot buy an interest in the estate. 26. Good faith protects him. 27. May compoua J a suit for neg'^i-Mce. 28. Cannot be sued with another. 29. When not liable for interest. 30. Must account for profits. 31. May receive real estate on debts. 32. Contracts of decedent may he performed. 33. May assign note due deceast.a. 34. May sell personal property. CII. IV.] Dl'TIKS AND LIABILITIES. 45 35. Liable for fraud. 36. Not chargeable for mistake. 37. Administrator to collect. 38. His powers. 39. Suits by him. 40. When his powers cease. 41. Administrator de son tort — liability. 42. One acting honestly with him. 43. Court no power to compel an account. 44. How he may discharge himself. 45. Widow not liable as administrator de son tort. 46. Title to property. 47. Suits between executors. 1. Duties prescribed by law. — Tliose accepting tlie importnnt duties incident to the settlement of estates, both testate and intestate, should not forget the governing fact, that they are in all cases to be controlled by the law ; or, in case of testate estates, by the will of the deceased, so far as its provisions may go, and the law as applicable to the same. The wishes of friends of the deceased, the oral "request" of the deceased, and also the oral instructions of the probate judge himself, when improperly wrung from him by the importunities of executors and administrators seeking advice, are alike to be disregarded, except so far as they are justified by the provisions of the statute, for neither will justify a disregard of the plain provisions of the law. 2. Grant of letters relates back. — The g-rant of admin- istration has relation to the death of the intestate, and it legalizes all intermediate acts of the administrator.(') 3. Duty of person named as executor. — It shall be the duty of any person knowing that he is named or appointed as the executor of the last will and testament of any person deceased, within thirty days next after the decease of the testator, to catise such will to be proved and recorded in the proper county ; or to present the will and declare his refusal to accept of the executorship ; and every such executor neglecting so to do, without just excuse for such delay, shall forfeit the sum of twonty dollars per month from and after the expiration of said term of thirty days, until he shall cause probate of said will to be made, or present the same as aforesaid, to bj recovered by action of debt, for the use of the estate, (i) Vroom vs. Van Home, 10 Paige, 549; Rattoon vs. Overacker, S Johns., 126; Priest vs. Watkins. 2 Hil!,'225; Matter of Faulkner, 7 Hill, 181; see 51 Am. Dec, 523, for l)rief; !\1( (rhne vs. People, 19 111. Ap., 105. 3 46 DUTIES AND STABILITIES. [ciI. IV. by any person who will sue for the same in any court having juris- diction thereof.(^) 4. Power of executor before probate of will. — The power of the executor over the testator's estate, before probate of the will and obtaining letters testamentary, shall extend to the burial of the deceased, the payment of necessary funeral charges, and the taking care of the estate ; but in all such cases, if the will is rejected when presented for proljate, and such executor thereby never qualifies, he shall not be liable as an executor of his own wrong, unless upon refusal to deliver up the estate to the person authorized to receive the same : Provided, that this section shall not be construed to exempt any person claiming to be executor as aforesaid, for any waste or misapplication of such estate.(^) 5. Admix[STR.\tor an officer. — An administrator is a mere officer of the law ; his title relates back to the death of the intestate, and cannot be affiicted by any acts of his own prior to his appoint- ment.(^) But, while it is true, that executors and administrators are officers of the law, they are not such in the sense that the de facto principle applies to their official character, and protects those doing business with them to the same extent as the official acts of de facto public officers are protected. Where there is an utter want of jurisdiction in the court appointing them, their de facto character will not give efficiency to their acts.(*) 6. Death, etc., of part of executors. — Where two or more executors are appointed in and by the same will, and one or more of them dies, refuses to take upon himself the executorship, or is otherwise disqualified, letters testamentary shall be granted thereon to the other person or parsons so named, uot renouncing as aforesaid, and not disqualified. (^) 7. Power op one of several executors. — At the common law, where one of two executors named in a will as trustees or merely as executors of the will, died or refused to act, the remaining execu- tor might not execute alone the powors given by the will. By the (i) Kurd's R. S., Chap. 3^2. (2) Kurd's R. S., Chap. 3, ? 4. (3) Gilkey vs Kamilton, 22 Mich., 283. (4) Rodrigas vs. East River Savings Institution, 76 N. Y., 316. (5) Kurd's R. S., Chap. 3, § 5; Shaw vs. Herry, 35 Me., 279; Jennings vs. Teague, 14 S. C, 229; Hodgin vs. Toler, 70 Iowa, 21. CH. IV.] DUTIES AND LIAIULITIES. 47 act of 21, Henry VIII., where lands are devised to be sold by exec- utors, and j)art of tlieui refuse, those who qualify may sell; and by Sec. 93, of Chap. 109, Revised Statutes of 1845, (*S'ec. 96, supra) where a part of the executors die, the survivor or survivors, may execute the power bestowed by the will. Under the authority of these statutes, the English statute having been adopted in this state, it has been held that, where one of two or more executors named in a will refuses to act or dies, the remaining executor may make con- veyances, authorized in the will, and otherwise execute the will of the testator. (^) In order to sustain a conveyance made under a will, by one of two persons nominated in the will as executors or trustees, it must be shown that those not joining, have refused to accept the trust and qualify as executors ; or that they were deceased at the time of the execution of the conveyance ; and a recitation in the record of the court granting letters, that one of those nominated by the will declined to act, was held insufficient to prove the fact. The proof of refusal or death, should be satisfactory and conclusive. (^) In the matter of the personal estate, one of two executors or adminis- trators may sell or transfer, acting alone, and the act of one is the act of both,(^) Where a portion of the estate of a testator was intestate estate by reason of not being disposed of by the will, it was held that the executor should administer thereon ex officlo.i^) 8. Power of an administrator with the will annexed. — Where a testator by his will invests his executor with power to convey the real estate of the testator for any purpose, the power is a personal trust, and cannot be executed by an administrator with the will annexed, either at common law or under the statutes of this state. In such a case, should the person named in the will as executor or trustee, refuse to accept and perform the trust, or die, not having performed it, a court of equity may be resorted to, for the appointment of a trustee.(^) In such a case, the administrator, (i) Clinefelter vs. Ayers, i6 111., 329; Pahlman vs. Smith, 23 111., 448; Wardwell vs. McDowell et al., 31 111., 364; Wisdom et al. vs. Becker, 52 111., 342. (2) Clinefelter vs. Ayers, supra. (3) Wheeler vs. Wheeler, 9 Cow., 34; Hertell vs. Bogert, 9 Paige, 52. (4) Hays et al. vs. Jackson, 6 Mass., 149; i Dane's Ab., 579. (5) Hall vs. Irwin, 2 Gill., 176; Lockwood vs. Stradley, i Delaware Ch., 298; Nicoll vs. Scott, 99 111., 529. 48 DUTIES AND LIABILITIES. [CH. IV. with the will annexed, has such an interest in the execution of the will, as to be heard in a court of equity, upon application for the appointment of a trustee, empowered to make the conveyances provided for in the will.(^) 9. Succeeds to the title to personalty. — The adminis- trator succeeds to the title to the personal estate, and the title takes effect by relation from the death of the intestate f) and the title remains in such administrator until there is an order of distribution.(^) 10. Liable for such as by diligence may be received. — Executors and administrators shall be chargeable with so much of the estate of the decedent, personal or real, as they, after due and proper diligence, might or shall receive.C*) In the prosecution and defense of claims, the administrator is deemed the full representative of the creditors of the estate.(^) 11. Courts to hold them liable for abuse of trust, but not upon slight grounds, — While care must be taken to guard against an abase of their trusts by administrators, courts ought not to hold them personally liable upon slight grounds, lest suitable persons be deterred from undertaking these offices.(fi)^ 12. For loss by fire. — An administrator must be held to adopt such precautions against the loss of property by fire, as prudent men are, under similar circumstances, accustomed to exer- cise. (') 13. Foreign debts. — It is the duty of the personal representa- tive appointed in this state, to endeavor to collect debts due from solvent persons in other states, by procuring himself, if necessary, or some proper person to be appointed administrator there ; and where such a debt was lost by his refusal to take steps in the matter, he was held accountable for the amount.ls) 14. Partnership. — If an administrator of a deceased partner, puts assets of the estate of his decedent into, the hands of the surviving partner to trade with, he will be anwerable for the loss.(^) (i) Wenner vs. Thornton et al., 98 111., 156. (2) Makepeace vs. Moore, 5 Gill., 476; i Blackstone's Com., 510; 4 Bacon's Abridgement, 74; McLean Co. Coal Co. vs. Long;, qi 111., 617. (3) Neubricht vs. Santmeyeretal. ,50111., 75; Hickox vs. Frank, 102 111. ,660. (4) Kurd's R. S., Chap. 3, ? 58 ; Christy et al., vs. McBride, i Scam., 75 ; Spaulding: vs. Wakefield, 53 Vt., 660 ; People vs. Brooks, 123 111., 246. (5) Kennedy vs. Shepley, 15 Mo., 640. (6) Rowan vs. Kirkpatrick, 14 111., i. (7) Rubottom vs. Morrow's Admr., 24 Ind., 202. (8) Shultz vs. Pulver, 3 Paige, 182. (9) Thompson vs. Brown, ^ Johns., Ch. 619. CH. IV.] DUTIES AND LIABILITIES. 49 15. Power over real estate. — The administrator of an intestate estate, as such, has no power over the real estate of his decedent, unless upon failure of the personal estate to pay the debts and liabilities of the estate.(^) He is not bound to pay taxes thereon, which, having accrued after the death of the decedent are, therefore, not a lien upon the personal estate in his ^hands ;(^) it would, however, seem to be a proper exercise of the discretion of the court, to permit the payment of taxes accruing after death, where it is apparent that by reason of a failure of the personal estate, such real estate must be relied upon to furnish the means for paying the residue of debts and liabilities after the exhaustion of the [)ersonal estate, otiierwise such payment might be defeated. (^)* a. To make such power available, he must proceed in the manner [)ointed out in the statute hereafter treated of, and has no power to make a binding private sale of the real estate of his decedent, in contemplation of an order of the court authorizing the sale. Such a sale would be void.(*) But he may be bound personally. (^) The estate cannot be estopped by his conduct. (®) b. Nor has the administrator any power to deal with the posses- sion of the land sold by him, and a party taking possession of such land by consent of the administrator cannot be considered as put in possession by any one authorized to do so. Such an act by the administrator is a violation of trust, from which no one privy thereto can take any benefit. (^) Nor can he mortgage the real estate.(* The administrator of a trustee under a trust deed, authorizing a sale by the trustee or his " legal representative," to pay the debt of (1) Walker et al. vs. Diehl, 79 111., 473 : Walbridge vs. Day et al., 31 111,, 379 ; Le Moyne et al. vs. Quimby et al., 70 111., 400; Harding vs. Le Moyne, 114 111., 65. (2) h'helps vs. l^unkhouser et al., 39 111., 401 ; Smith et al. vs. McConnell et al., 17 ill., 135 ; Stone et al. vs. Wood, 16 111., 177 ; Walker et al. vs. Diehl, siipra\ Stark vs. Brown, loi 111., 396. (3) StilUvell vs. Melrose, 15 Hun., 378, 381. (4) Herrick vs. Grow, 5 Wend., 579; McDermed vs. McCartland, Har- din, 18; I Hilliard on Vendors, 62. (5) Ib.\ Whiteside vs. Jennings, 19 Ala., 784. (6) Lewis vs. Lusk, 35 Miss., 696. (7) Sebastian vs. Johnson, 72 111., 282. (8) Smith vs. Hutchinson, 108 111., 662. *Be i( enacted, 335 ; Colton vs. Field et al., 131 III., 398; Estate of Corrington, 124 111., 363' (3) Stillmanet al. vs. Young et al , 16 111., 318 ; Wadsworth vs. Connell' 104 HI., 370. (4) Seegar vs. The State, 6 Harris & Johnson, 162. (5) Williams et al. vs. Wiggand et al., 53 111., 233. (6) McEldery vs. McKenzie, 2 Porter (Ala.), 33; See also note on page 645, 27 Am. Dec. ; Mason vs. Caldwell, sGilm., 196; Fitzhugh vs. Fiizliugh, II Gratton, 300; Davis vs. French, 20 Me., 21, and note, 37 Am. Dec, 37. (7) Wisdom et al. vs. Becker, 52 111 , 342. (8) Wilcox vs. Smith, 26 Barb., 316. (9) Baxter vs. Costin, i Busb.,262 ; i Hilliard on Vendors, 387. (10) 2 Kent's Com., 505 ; Thompson vs. Brown, 4 Johns. Ch.,619; Short et al. vs. Johnson, 25 III., 489. (11) Rodrigas vs. East River .Savings Institution, 76 N. Y., 316: Bailey vs. Dilworth, 10 Smedes & M., 404. 52 DUTIES AND LIABILITIES. [CH. IV. a pending suit for negligently causing the death of his decedent, for a sum less than the maximum amount given by statute.(^) 28. Can not be joined in a suit with another. — An administrator <>r executor can not be sued as such jointly with another person.^ 29. Not liable for interest. — Where, after the grant of administration upon the estate of a deceased person, the will of the deceased was offered for probate and allowed, after several years' jitio-ation, and letters testamentary issued to the executor, and it appeared that the money of the estate, in the hands of the adminis- trator, was always ready to be paid, whenever a jjroper person was appointed to receive it, the administrator was held not liable to pay interest on such sum,(^) although if 'he detains money belonging to his intestate unreasonably, he is liable for interest.(^) 30. Must account for profits. — An administrator, as to money in his hands as such, is a trustee of the same, and must be held amenable to the law governing such a relation ; accordingly he should be required to account for all profits realized by him or interest received by loaning the money or otherwise. It is his duty to act for the best interest of the estate, and to discharge the debts of the estate with the smallest amount possible.^ ) If he retains money unreasonably, he should be charged interest thereon. (^) 31. May receive real estate. — An administrator may take real estate in payment of a debt due the intestate, and, failing to do so when offered him, he will become liable if the debt be lost thereby. C') When it is necessary, in order to secure the collection of a judg- ment or decree belonging to any. estate, it shall be the duty of the executor or administrator to bid for, and become the purchaser of real estate, at the sale thereof by the sheriff, master in chancery, or other officer. The premises so purchased shall be assets in his (i) Henchey vs. Chicago, 41 111., 136; Washington vs. L. & N. Ry. Co., 136 111., 5>- (2) Eggleston etal. vs. Buck, 31 111., 254. (3) Meek vs. Allison et al., 67 ill., 47- 4) Hough vs. Harvev et al., 71 111., 72; Field et al. vs. Colton, 7 111. Ap 379 • Estate of Schofield, 99 111., 513 ; Troup vs. Rice, 55 Miss., 27acity of administrator, although he may be an administrator de son tort, and not contrary to law, is binding between the parties. A settlement made in good faith with such an administrator is valid. So, where notes made payable to a person afterwards deceased, came to the hands of his widow, who, as administrator de son tort, assumed to accept a renewal to herself, surrendering the old notes to the maker, it was held that the trans- action was proper, and the new note binding upon the maker.(') 43. Court no power to compel an account. — The county court has no power over an administrator de son tort to compel him (i) I Tomlin's Law Diclionary, 721; Brown vs Sullivan, 22 Ind., 359. (2) Mitchell vs. Lunt, 4 Mass., 654; i Dane's Ab., 570. (3) Perry on Trusts, 245; Bailey vs. Miller, 5 Irdell's Law, 444. (4) I Lomax on Executors, 78. (5) Campbell vs. Tousey, 7 Cow., 64. (6) I Lomax on Executors, 80. (7) Riley vs. Loughrey, 22 111., 98; 4 Bacon's Abridgement, 31; Hawkins vs. Johnson, 4 Blackf., 21. ClI. IV.] JnJTIKS AND LIAI5ILITIES. 57 to account ;(') nor can such an administrator sue for and collect a debt, or do anything toward settling the estate.(^) 44. How ADMINISTRATOR DE SOX TORT MAY DISCHARGE HIM- SELF. — The administrator de son tort of a solvent estate may discharge him-elf from the liability im[)osed by his intermeddling, even against the demand of the rightful executor, by showing that he has })aid debts of the deceased to the amount of the value of the goods belonging to the estate, which came to his hands. (^) He may pay the debts of the deceased due to others, but may not retain property of the deceased to pay his own debt.(^) If an administrator de son tort take out letters of administration, it makes legal all acts which were before tortious, but will not operate to discharge him from any personal liability previously incurred by reason of an unlawful intermeddling in the affairs of the estate.(^) 45. Widow as administrator de son tort. — The widow of a decedent does not render herself liable as administrator deson tort by continuing to reside where the family lived at the time of her husbaud's death, nor by taking care of the property of the estate until a legal representative has been appointed (^) 46. Title to property. — A valid title to the property of a decedent can not be obtained from an administrator de son tort as against a subsequently appointed administrator.!^"^) 47. Suits between executors, etc. — 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 pro- portionate share oJ' said estate as shall belong to him ; ai>l every (i) Wever vs. Marvin, 14 Barb., 376. (2) Campbell vs. Sheldon, 13 Pick., 8. (3) McConnell vs. McConnell, 94 111., 296; Weeks vs. Gibbs, 9 Mass., 74; Reagan vs. Long, 21 Ind., 264 ; Tobey vs. Miller, 54 Me.,4So; i Williams on Executors, 267 ; Ccmtra, Hardy vs. Tiiomas, 23 Miss., 544. (4) Glenn vs. Smith, 2 Gill & Johnson, 493. (5) Shellaber vs. Wyman, 15" Mass., 322 ; Rattoon vs. Overacker, S Johns., 126. (6) Ward vs. Bevill, 10 Ala., J97. (7j Rockwell vs. Young, 60 Md., 563. 58 DUTIES AND LIABILITIES. [. Where plaintiff or defendant dies— suggestion and substitution. la. Continuance. lb. Heirs and legatees. £. Void proceedings. d. Death of plaintiff after judgment .g. Foreign administrators included. J. Void sales. •g. Lien not defeated by death. Ih. Death of defendant— copy of letters a. Attachment suit does not abate. j. vCondemnation proceedings. 7. Concealed goods— collection of the same- 8. Jurisdiction of chancery. 9. Books of account. 10. What are personal assets— dividenda a. Rents. b. Legacies. c. Insurance policy. d. Certificate of sale e. Mesne profits. /. Nursery stock. g. Money due from guardian. h. Money paid for causing death. i. Real estate partially paid for. / Surplus money arising from sale under mortgage k. Foreign effects. /. Rails in a pen. VI. Real estate taken by administrator. n. Leasehold. 11. Suits by executors and administrators. a. Proof of official character. 12. Title to property vests in legal representative 13. Actions of covenant. 14. Widow— when liable. 15. Practice. CH. VI.] COLLECTION AND DISPOSITION OF ASSETO. 66 i6. Suit by administrator de bonis non. 17. Set-off not allowed. 18. Payment to an acting administrator. 19. Payment by administrator by mistake. 20. Personal estate first liable for debts. 21. Desperate claims. 22. Avails of desperate claims. 23. Claims may be compounded. 24. Removal of property by executor or administrator. 25. Sale of personal property. 26. Rule of caveat eitiptor. 27. Who may not purchase. 28. Growing crops. 29. Sale. 30. Return of sale bill. 1. Property of deceased bound for debts. — On the death of a party and the grant of letters of administration, the statute imposes a lien, incomplete it may be, on all of his property and credits, in favor of, and for the payment of all his debts, according to the class, and in the manner it prescribes ;(^) but where there is a will, the testator can substitute other funds in place of the personal estate.^*) And where, by will, the entire personal estate is disposed of, leaving the realty intestate estate, the personalty will be held exempt from the payment of debts, until all the realty has been exhausted.(^) 2. Administrator should collect. — The administrator should collect all the goods and chattels inventoried : and to that end, he has very large powers and interests conferred upon him by law; being the representative of the deceased, and having the same property in his goods, as the principal had when living, and the same remedies to recover them.C*) According to a decision in Pennsylvania,(^) he has greater rights, in some cases. For example, where a person parted with the possession of his property for the purpose of defrauding his c'-reditors, he cannot maintain trover to recover it back ; but, after {\) Mack vs. Woodruff, 87 111., 570. (2) Ruston vs. Ruston, 2 Dallas, 243. (3) McCullom vs. Chidester, 63 111., 477; Stires vs. Stires, Halstead's Ch. 224. (4) I Blackstone's Com., 510; Leamon et al. vs. McCubbin et al., 82 111., 263. (5) Stewart vs. Kearney, 6 Watts, 153. 66 COLLECTION AND DISPOSITION OF ASSETS. [CH. VI. his death, if his estate be otherwise insufficient to pay his debts, the action of trover survives to his representatives, who may prosecute it for the benefit of his creditors. 3. Property fraijdulenty transferred. — Where one confessed^!, judgment in fraud of his creditors, under which goods were sold to the plaintiff in said judgment, in satisfaction of an execution issued thereon, after which the defendant in the judgment died, it was held that, while the administrator of the defendant could not lawfully take Vr.^ goods himself, the plaintiff might be held responsible as an administrator de son tort, to any creditor ot the estate. (^) 4. Actions which survive. — 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 con- version of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud or deceit.(^) In the case of ;v mere personal contract, or of a covenant not running with the land, if it were made only with one person, and he be dead, the action for the breach of it, must be brought in the name of his executor or administrator, in whom the legal interest in such contract is vested ;(^) but in case of torts, where the action must be in form ex delicto, for the recovery of damages, and the plea of not guilty, the rule at common law was otherwise. (*) Until the passage of Sec. 122, sujym, actions for trespass to realty did not survive.(^) Action for the seduction of a daughter, does not survive. (^) The action of trover survives.(') 5. Administrators and executors must sue and be sued jointly. — Administrators must be sued jointly and plead jointly, (i) Osborne vs. Moss, 7 Johns., 161. (2) Kurd's R. S., Chap. 3, Sec. 122; Blakeney vs. Blakeney, 6 Porter, 109. (3) I Chitty's PL, 19. - (V Reed vs. Railroad Co., iS III, 403; Taylor vs. Fickas, 64 Ind., 167. (6) 2 Hilliard on Torts, 522. (7) /^- CH. VI.] COLLECTION AND DISPOSITION OP ASSPrrS. 67 and no several judgineut can ba taken against any one of tliem: such a judgment is wholly voi(l.(^) But where one of two executors died, having in his liancls trust funds belonging to the estate repre- sented by himself and Ifs executor, it was held proper for the surviving executor to probate a claim against the estate of the deceased executor, for the funds so held by him.(^) 6. Death of sole plaintiff — reviving suit. — When there is but one plaintiff, petitioner or complainant in an action, proceeding or complaint, in law or equity, and he shall die before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if the cause of action survive to the heir, devisee, executor or administrator of such decedent, but any of such to whom the cause of action shall survive, may, by suggesting such death upon the record, be substituted as plaintiff', petitioner or com- plainant, and prosecute the same as in other eases.(^) a. Upon the death of the plaintiff and the substitution of the name of the personal representative, either party is eiititled to a continuance, and neither party can be forced into a trial at that term.(*) b. Where, during the pendency of an action for trespass to real property, the plaintiff died, it was held that the action must proceed, if at all, in the name of the personal representative of the deceased [)laintiff, and that such action could not be maintained in the name of the sole legatee of the plaintiff'. (^) c. Judicial proceedings commenced and prosecuted in the name of a person deceased, are a nullity, and would constitute no bar to another proceeding in the name of the personal representatives of the deceased, for the same cause.(^) d. The collection of a judgment or decree of a court of record shall not be delayed or hindered, or the lien created by law abate, by reason of the death of any person in whose favor such judgment or decree shall be; but the executor or administrator, or, if the (i) Dickerson vs. Robinson, i Halstead, 195. ,1 (2) Fitzsimmons vs. Cassell, 98 111., 332. (3) Kurd's R. S., Chap. i,l 10; Thorpe vs. Starr, 17 111., 199. (4) Warren vs. Ball, 40 111., 117. (5) McLean Co. Coal Co. vs. Long, 91 111., 617; Bower vs. G. & M. R. R. Co., 92 111., 223. (6) Risley vs. Fellows, 5 Gil ., 531 ; Barbour et al. vs. White et al., 37 [11., 164. 68 COLT.ECTION AND DTSPOSITIO^J OF ASSETS. [CH. VI. decedent was an executor or administrator, the administrator de bonis non, or with the will annexed, may cause his letters testa- mentary or of administration, to be recorded in such court, after which execution may issue and proceeding be had, in the name of tlie executor or administrator as such, in the same manner as if the judgment or decree had been recovered in his name.(^) e. This section is construed to authorize foreign administrators, upon complying with the requirements of Sec. 42, Cliap. 3, to sue out executions upon judgments in favor of their decedents in the courts of this state. (^) But an administrator cannot file a transcript in the circuit court under section 95, chapter 79. (^) /. Sales in the name of a deceased plaintiff are void.(*) g. The lien created by law in favor of a judgment, is not defeated by the death of the plaintiff, unless no execution has been issued within a year ; but the executor or administrator of the deceased plaintiff, may have execution thereon, by filing his letters of administration in the court fur record. The failure of the clerk to record the letters, as required by law, will not defeat a sale made under such execution. ( ') h. When a person shall die after the rendition of a judgment or decree for the payment of money against him is obtained in a court of record, execution may issue against the real estate of such deceased person, or sale may be made under such decree without reviving the judgment or decree against his heirs or legal repre- sentatives : Provided, that no execution shall issue or sale be made, until after the expiration of twelve months from the death of such deceased person, nor shall any sale be had on any such execution or decree, until the person in whose favor the judgment or decree is sought to be enforced, shall give to the executor or administrator, or, if there is neither, the heirs of the deceased, at least three months' notice in writing of the existence of such judgment or decree, before issuing execution or proceeding to sell.(G) i. An attachment proceeding does not abate upon the death of the defendant(') (i) Hiird's R. S., Chap. 77, | 37 ; Letcher et al. vs. Morrison, 27 111., 209. (2) Keefer vs. Mason, 36 III., 406; Contra, People vs. Peck, 3 Scam., 118. (3) Thornley vs. Moore, 106 111., 496. (41 P.rown vs. Parker, 15 111., 307 ; Risley vs. Fellows, 5 Gil., 531. (5) Durham et al. vs. Heatc>n, 28 111., 264; Fitts et al. vs. Davis,42 111., 391. (6) Hurd's R. S., Chap. 77, <; 39 ; Doe e:tr dem vs. Hamillon, 23 Miss., 496. (7) Davis et al. vs. Day, 19 III, 3S6. CH. VI.] COLLECTION AND DISPOSITION OF ASSETS. 69 j. This section docs not justify the substitution of tlic name of an administrator in a proceeding under the statute for condemning a right of way for a railroad, where the owner of the real estate dies. Upon his death, the title vests in his heirs, and the name of the administrator is improperly substituted.(^) 7. Concealed goods, etc. — If any executor or administrator, or other person interested in any estate, shall state upon oath to any county court, that he believes that any person has in possession, or has concealed or embezzled any goods, chattels, moneys or effects, books of account, papers, or any evidences of debt whatever, or titles to lands, belonging to any deceased person, the court shall require such person to appear before it by citation, and may examine him on oath, and hear the testimony of such executor or adminis- trator, and other evidence offered by either party, and make such order in the premises as the case may require. C*) If such person refuses to answer such proper interrogatories as may be propounded to him, or refuses to deliver up such property or effects, or in case the same has been converted, the proceeds or value thereof, upon a requi- sition being made for that purpose by an order of the said court, such court may commit such person to jail, until he shall comply with the order of the court therein. (^) Where a party appears in the county court and goes to trial on the merits, in this proceeding, this will be a waiver of any defects in the affidavit, by which the proceeding is commenced. (*) In such a case, the court is not confined to the examination of the defendant, but either party has a right to introduce any evidence pertinent to the issue. The court is not even bound to examine under oath, but may do so in its discretion. (^) Where a party is cited under such a proceeding, to reach prop- erty in his hands belonging to an estate, denies the charge, and is discharged by the court, it seems that such a trial and discharge, will be a bar to a recovery in another action in respect to the same property.(^) (i) P. & R. I. R. R. Co. vs. Rice, 75 111., 329. (2) Hurd's R. S., Chap. 3, | 80. (3) Hurd's R. S., Chap. 3, § 80; Blair vs. Sennott, 134 111., 78. Steinman vs. -Steinman, i 5 111., 348; Barnum vs. Reed, 136 111., 388. (4) Wade vs. Pritchard, 69 111., 280. (5) Id. (6) Id. 70 COLLECTION AND DISPOSITION OF ASSETS. [CH, VI. This proceeding was not designed to aid in the collection of debts due to the deceased ; but for the purpose of obtaining posses- sion of specific articles. So, where one was cited to appear and answer as to the possession of money belonging to the estate of a deceased person, it was held error to order the payment of a sum of money equal to that received, or any sum, unless the evidence showed the possession of the identical money received. (^) It does not follow, when another party is in possession of goods and chattels of an estate, that the court shall order that they be delivered to the administrator under the above section. If the order can accomplish no substantial good, it should not be made. The court is invested with a discretion, and is not compelled, as a matter of arbitrary law, to make any specific order. This discretion is not unlimited, but should be exercised so as best to preserve the estate, and promote the honest, complete and prompt administration of assets. A court would not require the equitable owner of promissory notes, made payable to a deceased person, to deliver them to the administrator of the estate when not required for the payment of debts of the estate, or for the purpose of distribution. (2) 8. Jurisdiction of chancery. — Where the husband of an administratrix obtains possession and control of the assets of the estate represented by her, and refuses to pay over to claimants, when an order is legally made upon her to do so, it is quite clear that equity would compel him to deliver up the trust funds in his hands for the benefit of the creditors ; or, perhaps, the same end might be attained, by a proceeding against him in the county court under the 80th section. (^) 9. Books of account. — The books of account of any deceased person shall be subject to the inspection of all persons interested therein. (^) 10. What are personal assets. — Dividends in a turnpike company, declared after the death of the testator or intestate, are personal estate, and may be collected by the executor or adminis- (i) Williams vs. Conley, 20 111., 643. (2) People vs. McKee, 105 111., 5S8. (3) Johnson vs. Von Kettler, 66 111., 63. (4) Kurd's R. S., Chap. 3, I 127. CH. vr.] coLLEcrnoN and disposition of assets. 71 trator ; so, also, are dania(>;cs for ojieuing a public road, ordered before, but not paid until after death.!*) a. Rent for the use of realty, falling due before the death of the decedent, is ])ersonal estate, and goes to the administrator ; other- wise if it falls due after the death of the owner. (^) On the_ other hand, if the tenant make an under-lease, reserving rent, the rent accruing to tiie tenant after his death will go to his executor or administrator, and not to his heirs. Where no estate or reversion is left in the landlord, and the rent is reserved to his executors and administrators, it will go to them, and not to the heirs. ^^ b. A legacy to the deceased is personal property, and goes to his administrator, who has a right to it under the terms imposed by the testator. (*) c. A life insurance policy, payable to one's " legal representa- tives,"* when collected, is assets in the hands of the administrator for the payment of debts or for distribution; but when payable to the widow or heirs, it is otherwise. (*) d. Where the deceased held a certificate of sale under execution sale, it descends to his heirs, and the deed must be made to them.C^) e. Mesne profits due a widow for the use of her dower are personal assets, and go to her administrator; but the right to recover dower must be established in the lifetime of the widow.(''') /, Nursery trees growing upon real estate at the time of the death of the owner will descend to the heir, and do not go to the administrator. ^, g. The administrator of a minor may compel a settlement by (i) Welles vs. Cowles, 4 Conn., 182. (2) Green vs. Rlassie, 13 111., 372 ; Foltz vs. Prouse, 17 111., 487; Dixon vs. Nichols, 39 111., 372 ; Wright vs. Williams, 5 Cow., 501 ; Evans vs. Hardy, 76 Ind., 527 ; Cowdrey vs. Hitchcock, 103 111., 262. (3) 3 Cruise's Digest, 321 ; Swan's Manual, 63. (4) Ruffin vs. Farmer, 72 111., 615. (5) People vs. Phelps, 78 111., 148; See 6 Probate Reports, 547, foi authorities ; Alexander vs. Masonic Aid Association, 126 111., 558; Pinneo vs. Goodspeed, 120 111., 524; Cole vs. Marple, 98 111., 58. (6) Potts vs. Davenport et al., 79 ill., 455. (7) Hitt vs. Scammon et al., 82 111., 519. (8) Osborn vs. Rabe, 67 111., ]o8. *The term "legal representatives," means executors, administrators, children, heirs, assignees or grantees, according to the intention of the parties using it. — Warnecke et ai vs. Lembca, 71 III., 91 ; Morehouse vs. People, 18 111., 472. 72 COLLECTION AND DISPOSITION OF ASSETS. [CH. VI. the fill ,r(lian of such minor, and receive from him any balance found (lue.(^) h. Money paid an administrator for wrongfully causing the death of the deceased is assets in his hands for certain purposes.(^) i. Where the deceased has made partial payment for a piece of land, the interest therein goes to the heirs, and if entitled to recover back money paid on the purchase, it must go to the heir.(^) Where there is a contract for the purchase of land, it descends in equity to the heir.C*) A claim occupied by deceased and family is not assets which the administrator is bound to sell and account for.(^) j. Surplus money, arising from the sale of real estate under a mortgage made by the deceased in his lifetime, is considered a part of the realty, and goes to the heirs, and not to the administrator of the mortgagor.(^) k. Property of an intestate situated in another state or country than that granting letters, is not assets for the payment of debts and distribution — the administrator has no authority over, nor is he responsible for any effects of the decedent that may be beyond the jurisdiction.C') Debts due the decedent from those resident in other states are not included in the term " property," as above used, and should be collected as other debts. (") I. Rails used in a stack-pen are personal property, and may be recovered by the administrator. It is otherwise where the rails are laid up in a fence. (^) m. Where real estate is taken by an administrator in ])ayraent of a debt due to the deceased, or where land sold by him in his lifetime and not paid for is recovered back under a power of forfeiture, such (i) Gilbert vs. Guptill, 34 HI-, 112. (2) Goltra vs. People, 53 111., 224 ; Henchey vs. City of Chicago, 41 III., 136. (3) Buck vs. Eaman, 18 111., 529 ; Smith vs. Smith et al, 55 111., 204. (4) Smith vs. Smith et al., supra; Champion et al. vs. Brown, 6 John- son's Ch., 308. (5) Attridge et al. vs. Billings et al., 57 111., 489- (6) Moses vs. Murgatroyd, i Johns. Ch., 119; Bogert vs. Furman, 10 Paige, 466. (7) Judyetal.vs. Kelley, 11 111., 211. (8) Shultz vs. Pulver, 3 Paige, 1S2. (9) Clark et al. vs. Burnside, 15 111.. 62. oil. VI.] COI^LECTION AND DISPOSITION OF ASSETS. 7'^ real estate partakes of the nature of personalty, and will be distrib- uted as such.(^) n. A leasehold interest in land for a term of years is personal estate, and on the death of the owner passes to his executor or admin- istrator, and not to the heir.(^) 11. Suits by executors and administrators. — When the nature of a debt originally due an intestate is changed by contract with the administrator, the latter must sue for the new debt in his own name ; and where the plaintiff styles himself administrator in the declaration on a note, but takes judgment in his own name, such designation will be deemed merely a description of the per- son. (^) An executor or administrator need not sue, as such, upon a contract made by him in his fiduciary capacity, after the death of his decedent, and if he does so, he need not prove that he is executor or administrator. (*) a. An administrator, suing as such, is not required to produce his letters and prove his official capacity, unless his right so to sue is denied by the defendant. In a court of record, the proper manner of denying it is by plea of ne Mw^'we-s administrator. Before a justice of the peace, an oral objection should be interposed. (^) A plea of the general issue admits his official capacity. (®) Where an administrator sues upon a contract made by himself, although in his official capacity, as upon a note made to himself, as administrator, he need not prove his official character, although his right so to sue is denied by special plea. The description given to himself in making the contract, or in bringing the suit, will be regarded as immaterial, and need not be proven. Q 12. Title to property vests in legal representative. — The legal title of a note payable to A. B., administrator, upon the death of the payee, passes to his administrator.(') (i) Leiper's Ap., 35 Pa. St., 420. (2) Thornton, et al., vs. Mehring, 117 III., 55 ; Doe, e:f dem., vs. Peters, Burbee's Law, 457. (3) Helm vs. Van VIeet, t Blackf., 342. (4) Hunter vs. Postlewaite, 10 Martin, 456. (5) Ballance vs. Frisby et a!., 2 Sc^m., 63 ; Collins vs. Ayers, 13 111., 358; Union R. R. Co. vs. Shacklet, 119 111., 232. (6) McKinly vs. Braden, i Scam., 64. (7) Laycock vs. Oleson, 60 111., 30 ; Baker vs. Ormsby, 4 Scam., 325. (8) Nevvhall vs. Turney, 14 111., 33S ; Horskins vs. Williamson, i T. U- P. Charlton (Ga.), 145. 74 COIJ.KOTION AND DLSin)SITI(>N OF ASSETS. [ciI. VI. A devisee or heir of realty cannot be called upon to account for tents to be used in paying; the debts of the testator or ancestor.(^) The executor of a trustee who died in possession of a trust fund, takes it, if at all, not as executor, but as a trustee. (^) 13. Action of coven/.nt. — An administrator or executor may maintain an action for covenant broken in the lifetime of the testator or intestate, tiiouuh it were a covenant real runninld by the intestate to the defendant, the admissions of the former administrator are proper in support of a plea of pay- ment to him.(®) 16. Suit by administrator de bonis non. — An administrator de bo7iis non cannot maintain a suit against a purchaser at a (i) Bucher et al. vs. Bucher, 86 111., 377. (2) Dias vs. Brunell, 24 Wend., 9. (3) 4 Bacon's Abridgement, 126; Mott vs. Mott, 11 Barb., 127. (4) Hurd's R. S., Chap, 3, ? 79. (5) Newhall vs.Turney, 14 111., 330 ; Lacock vs. Oleson, 60III., 30; Helm vs. Van Fleet, i Blackford, 342. (6) Lewis vs. Lyons et al., 13 111., 117. (7) Collins vs. Ayers, 13 III, 358. (8) Eckert vs Triplett, 4S Ind., 174. CH. VI.] COLLECTION AND DISPOSITION OK ASSKTS. 75 sale of personal projierty made by a former administrator. There is no privity of contract between the two administrators. (^) 17. Set-off. — In an action by an executor upon a cause of action arising after the testator's death, tlie defendant cannot set-off a del)t due him from the testator in his lifetime ;(*) so, in a suit upon a debt accruing to the administrator, as such, after the death of the deceased, the defendant cannot offset a debt due to him from the intestate in liis lifetime. (^) To allow this to be done, would interfere with the proper order of distribution.('*) A claim against an administrator personally cannot be offset against a debt due the estate he represents. (^) 18. Payment to an acting administrator. — The receipt of an acting administrator of an estate, under authority of law, regu- larly a{)pointed by a court of competent jurisdiction, is a sufficient acquittance of a debt due the estate, and will bar any action for the recovery of the same, subsequently brought, notwithstanding some irregularities may have intervened in the appointment of the admin- istrator, which would be fatal on appeal or error.(^) But if it subsequently appear that, at the time of the issue of such letters, the alleged decedent was not in fact dead, but alive, then such payment will not acquit a party so I>aying to an acting administrator. ('^) 19. Payment by mistake. — Where an administrator, by mis take, makes a payment out of the assets which ought not to have been made, he may recover it back in his representative character; and this, although such payment amount to a devastaviti^) 20. Personal estate primarily liable. — The personal prop- erty of a deceased person is the primary fund for the payment of debts and legacies not charged upon the real estate ;(^) and this, whether such debts are secured by mortgage or not, and heirs and devisees have the right to compel the payment of a mortgage debt out of the personalty, and thereby relieve real estate of the lien.(^**) (i) Ross vs. Sutton, i Bailey Law, 126; McGarvey vs. Darnall, 134111., 367. (2) Patterson vs. Patterson, 59 N. Y., 574; Harding vs. Shepard, 107 111., 264. (3) Newhall vs. Turney, 14 111., 338. (4) Id.; Bosler vs. Bank, 4 Pa. St., 32. (5) Wisdom et al., vs. Becker, 52 111., 342. (6) People vs. Cole, 84 111., 327. (7) Rodrigas vs. East River Savings Institution, 79 N. Y., 307. (8) 4 Bacon's Ab., 127. (9) McCampbell vs. McCampbell, 5 Littell, 92. (10) Sutherland vs. Harrison et al., 86 111., 363; Diversey vs. Johnson, 93 III., 547. 76 COLLECTIOxX AND DISPOSITION OF ASSP:TS. [oH. VI. 21. Desperate claims. — Upon suggestion made by an executor or administrator to the county court, that any claim, debt or demand whatev^er belonging to the estate in his hands to be administered, and accruing in the lifetime of the decedent, is desperate on account of the insolvency or doubtful solvency of the person or persons owing the same, or on account of the debtor having availed himself of the bankrupt law of the United States, or on account of some legal or equitable defense, which such person or persons may allege an^ainst the same, or for the cause that the smalluess of such claim, debt or demand, and the difficulty of finding the debtors, owing to the remoteness of their residence, or such executor's or administra- tor's ignorance of the same, the said court may order such claim, debt or demand to be compounded or sold, or to be filed in the said court, for the benefit of such of the heirs, devisees or creditors of such decedent, as will sue for and recover the same, giving the creditors the preference, if they or any of them apply for the same before the final settlement of such .estate : Provided, that no order for the sale or compounding of any such debts, claims or demands, or any of them, shall be made until two weeks' public notice shall have been given, to all whom it may concern, of the time and place when the said order will be applied for — which notice shall be inven by the administrator or executor, in a newsp.iper published in the county where such application is to be made, or if no such newspaper is published in such county, then by ])o;^ting up sm-li notices in not less than three public places in the county, of which one shall be at the office of the clerk of the county court— which notice shall be so posted at least two weeks previous to the time of said application. , The executor or administrator shall report to the said county court, for its approval, the terms upon which he has settled or di.-posed of any such claim, debt or demand. (^)* An executor has authority at common law to compound and re'evse a debt due to the estate, and one who settles a debt due the estate in good faith and discreetly, although for less than the whole sum dne, is acct)untable only for the amount received.(^) ?Ie has (i) Kurd's R. S.. Chap. 3, ?. 82 ; Kellar's appenl 8 Pa. St., 288. (2 In the matter of Scott, 5 N. Y., Le^. Obs., 378 ; Moulton vs. Holmes, 57 Cal , 337; See 2 Prubaie Reports, 552, for brief; Conhri, JEina Ins. Co. vs. Sw'ayze, 30 Kansns, 118. *woTF -This section does not apply to claims for the death of the deceased. The adminis- trator liiay compromise such claims without cousent,of the court - W.ishinglon vs. Louisville B. R Co., 136 111., 49. cii. VI.] collec;ti()N and disi'osition of ahsk'1'.s. 77 no authority to receive anything but money iu payment of notes due the deceased. (^) 22. Avails of di-^sperate claims. — And if such claim is compounded or sold, such executor or administrator shall be chargeable with the avails of such compounding, and if the same is taken by any of the creditors, heirs or devisees, he or they may maintain an action for the recovery thereof, in the name of such executor or administrator, for the use hereinafter mentioned ; and upon recovering the same, or any part thereof, he or they shall be chargeable therewith, after deducting his claim or distributive share, with reasonable compensation for collecting the same ; and upon such suits the executor or administrator shall not be liable for costs (^) 23. Court may order certain claims compounded. — The county court may order claims, debts and demands, due at so remote a period as to prevent their collection within the time required for the final settlement of estates, and the collection or disposition of which is necessary to the payment of the debts against the estate, to be compounded or sold in the same manner and upon like condi- tions as though such claims, debts or demands, were desperate or doubtful : Provided, that no such claim, debt or demand shall be sold or compounded for less than ten per cent, below the value thereof.(^) 24. Removal of property by executor, etc. — penalty. — No executor or administrator shall, without the order of the court, remove any property wherewith he is charged, by virtue of his letters, beyond the limits of this state. And in case any such executor or administrator shall remove such property without such order, the court shall, on notice, forthwith revoke his letters and appoint a successor, and cause a suit to be instituted on his bond against him and his security, for the use of the person interested iu the estate ; and if it shall appear, upon the trial of such auise, that the executor or administrator has so removed such jjroperty, judg- ment shall be rendered against the offender and his securities, for (i) Means vs. Harrison, 114 111., 248; see 2 Probate Reports, 552, for brief of authorities. (2) Hurd's R. S., Chap. 3, ? 83. (3) Hurd's R. S., Chap. 3, ? 84. 78 COLLECTION^ AND DISPOSITION OF ASSETS. [CH. VI. the full value thereof, aud such other damages as the parties inter- ested may have sustained by reason thereof.(^) 25. Sale of pp:PuSONAL property. — When it is necessary for the proper administration of the estate, the executor or adminis- trator shall, as soon as convenient, after making the inventory and appraisement, sell at public sale, all the personal property, goods and chattels of the decedent, when ordered to do so by the county court, (not reserved to the widow, or included in specific legacies and bequests, when the sale of such legacies and bequests is not necessary to pay debts,) upon giving three weeks' notice of the time and place of such sale, by at least four advertisements, set up in the most public places in the county where the sale is to be made, or by inserting an advertisement in the nearest newspaper published in this state, to the place of such sale, at least four weeks succes- sively, previous thereto. The sale may be upon a credit of not less than six nor more than twelve months time, by taking note with good security of the purchasers at such sale. The sale may be for all cash, or part cash and part on time : Provided, that any part or all of such personal property may, where so directed by the court, be sold at private salc.(^) This statute requires that security be taken for the payment of deferred payments, whether the property be sold at public or private sale; and the court has no power to direct otherwise. (^) As a general principle, an administrator has power to dispose of the personal effects of his decedent, and the alienee obtains a perfect title thereto by such sale. He has to sell the property in order to pay debts against the estate, and make distribution of the surplus among the heirs, and purchasers would not be disposed to deal with an administrator in the assets of an estate, if they were liable to be afterwards called to account. The statute points out the manner of making a sale, but it is only directory, and a sale of personal property in any other manner by the ndmini:^trator, if not tinctured by fraud, and in good faith, would convey a good title to the .(i) Kurd's R. S., Chap. 3, ? 85. (2) Kurd's R. S., Chap. 3. § 90. (3) Bowen vs. Shay, 105 III., 132. CM. VI.] COLLECTION AND DISPOSITION OF^ ASSF.)-. 79 purchaser.(^) Sliould an administrator take the responsibility of selling the personal property of the deeca.sed in a manner different from that pointed out by the statute, he takes upon himself the responsibility of answering to those interested for all damages to the estate wliich may follo\v.(^) 2G. Caveat emptor. — Purchasers at the sales made by admin- istrators and exeeutors in pursuance of the statute, act at their peril, both as to title and quality of the articles sold. They must inquire into the title, and ascertain the quality before purchasing, for the administrator only sells the interest that was vested in the intestate, and makes no warranty either for himself or the estate which he represents. The rule of caveat emptor strictly applies to all such sales, whether of personal property or real estate. (^) Notwithstand- ing this inflexible rule, where fraud is made use of by the adminis- trators, to effect sales of property of the estate at prices in excess of its value, such fraud may be shown to defeat recovery upon notes given for property sold at such sales.('*) 27. Who may not purchase. — An administrator cannot purchase at his own sale,(^) nor can a firm, of which he is a member.(^) 28. Growing crops. — If any executor or administrator is of opinion that it would be of advantage to the estate of the decedent, to dispose of the crop growing, and not devised at the time of his decease, the same shall be inventoried, appraised and sold, in like manner as other personal property ; but the executor or adminis- trat(^r may, if he believes it would be of more advantage to the estate, cidtivate such crop to maturity, and the proceeds of such crop, after deducting all necessary expenses for cultivating, gather- ing and making sale of the same, shall be assets in his hands, and subject to the payment of debts and legacies, and to distribution as aforcsai(l.(") Crop.-, growin;'- upon lands of a testator Wiiich are devised by (i) Vakepeace vs. Moore, 5 Gil., 474 ; VVal'-er et al. v.=. Craig, i 111. 116; McC 'nnell vs. Hodson, 2 Gil., 640; Bond vs. Zeigler, i Ga., ,24. (2) lUirnap vs. Dennis, 3 Scam., 478. (3) liinglr-m et al. vs. Maxey, 15 111., 295. (4) Welch el al. vs. Hoyt, 24 111., 117 ; Ray vs. Virgin, 12 111.. 216; liamson vs. Walker, 24 Ga., 257. (5) Nelson vs. Hayner et al., 66 111., 48S ; Miles et al. vs. Wheeler e al., 43 111., 123 ; Williams vs. Rhodes et al., 81 111., 572. (6) Harrod vs. Norris, 11 Martin, 297. (7) Hurd's R. S., Chap. 3, ? 93. 80 COLLKCTION AND DISPOSITION OF ASSETS. [CH. VI. will, pass to the devisee, and the executor of the will has no interest in, nor control over them.(/) An administrator who sells property exempt from sale is liable in trover at the suit of the widow and heirs. (^) 29. Clerk — crier. — In all public sales of such property, the executor or administrator may employ necessary clerks, who shall receive such compensation as the court may deem reasonable for their services, not exceeding five dollars per day, and also a crier or auctioneer, who shall receive such compensation as the court may deem reasonable, not exceeding ten dollars per day, to be paid by such executor or administrator and charged to the estate. All such sales shall be made between the hours of ten o'clock in the forenoon and five o'clock in the afternoon of each day ; and any sale made before or after the time herein limited shall be voidable at the instance of heirs, devisees or creditors prejudiced thereby. ^^) 30. Bill of sales — return. — All executors and administrators shall, immediately after making such sales, make, or cause to be made, a bill of the sales of said estate, under oath, describing par- ticularly each article of property sold, to whom sold, and at what price ; which sale bill, when thus made and certified by the clerk of such sale and the crier thereof, if any such was employed, as true and correct, shall be returned into the office of the clerk of the county court, in the like time as is required in cases of inventories and appraisements. (*) (i) Creel vs. Kirkham, 47 HI-, 344- (2) Jackson vs. Bryan, 3 J. J. Marshall, 308. (3) Hurd's R. S., Chap. 3, § 94. (4) Hurd's R. S., Chap. 3, I 95. CII. VII.J PARTNERSHIP ESTATES. 81 CHAPTER VII. PARTNERSHIP ESTATES. 1. Partnership terminated by death of one partner. 2. Must be authority in the will to continue business after such disso lution. 3. Statutory partnership. 4. Proceedings on dissolution. 5. Surviving partner to file inventory, 6. In what county. 7. Survivor continues in possession. a. Survivor must sue alone. 8. Waste by him. 9. Effects must first pay partnership debts. a. How balance disposed of. 10. Statute declaratory. 11. Account. 12. Survivor may purchase. 13. When partnership to be settled. 14. Power of administrator to enforce settlement 15. Final settlement. 16. No compensation to survivor. ' 17. Real estate of partnership. 1. Partnership terminated by death of one partner. — It has long been the law, that the death, insanity or bankruptcy of one partner in a partnership, independent of statutory provisions, iniraediately and inevitably dissolves and terminates such partner- .ship.(^) Some authorities hold that, by a stipulation in the articles of co-partnership, the relation may be perpetuated beyond the death of one of the constituent members, the heirs or personal representa- tives of the deceased, meantime representing him therein ; but the partner being dead — not in existence — he can have no representa- tive. His death has vested the title to his property in others, and if the firm is perpetuated under the agreement that his heirs or representatives shall represent him, it becomes to all intents a new (i) Remickvs. Emig et al., 42 111., 342; Oliver vs. Forrester, 96 111., 315; Griswold vs. Waddington, 15 Johns., (N. Y.) 57; Parsons on Partnership, 466-473 ; Nelson vs. Hayner et al., 66 111., 487. 82 PARTNERSHIP ESTATES. [CH, VIl, firm, organized under a bargain made for that purpose in the old articles of co-partnership (^) Although upon this question there is a conflict of authorities, the better conclusion is consistent with the rule, long observed, laid down above. In ih's case, where the heirs or personal representa- tives, in j)ursuance of the agreement for perpetuating the business, nuule by the old firm, assent thereto and continue the joint relation, a new firm is thereby created, consisting of the surviving members and personal representatives, the new members becoming liable as the old, to all creditors of the firm.(^) An executor or administrator entering into such a relation, as to outside parties, loses his trust capacity, and becomes personally liable for the contracts of the new firm.(^) 2, Must be authority in the will. — It is a rule, without exception, that to authorize executors to carry on a trade, or to permit it to be carried on with the jnoperty of the testator held by them in trust, there ought to be the most distinct and positive authority and directions given by the will itself for that })urpose.(*) A testator's directions to his partner to continue to carry on his business with his surviving partners does not authorize the execu- tors to embark any new capital in the business. (^) But where articiles of co-partnership provide that the death of one of the co-partners shall not terminate the partnership, but the same shall continue, the executor of the deceased' partner to act for him, the general estate of the deceased partner is bound by the obligations of the partnership contracted in the regular course of business, and a pledge of the assets of the estate for firm debts is valid. (®) Whatever powers of this kind are given to an executor, either (i) Burwell vs. Mandeville, 2 Hav., 579; Ex Parte Garland, 10 Vesey, Jr., 119; Story on Partnership, 43S ; Forrester vs. Oliver, i 111. Ap., 259; Buckingham vs. Morrison, 136 111., 439. (2) Colton vs. Field et al., 131 111., 398. (3) Alsop vs. Mather, 8 Conn., 584; Edgar vs. Cook, 4 Ala., 588; Labouchere vs. Tupper, 11 Moore, Priv. Coun., 221, Creagh vs. Creagh, 13 Irish Ch., 46 ; See 2 Probate Reports, 613 for authorities. (4) Kirkman vs. Booth, ii Beav., 273. (5) Smith vs. Smith, 13 Grant Ch., 81. (6) Blodgett vs. Am. National Bank, Sup. Court of Connecticut, 14 Legal News, 112. This decision was made in a case where the e.xecutor had pledged assets of a testator to secure partnership debts, and legatees brought action to recover the assets. In a case where personal creditors should, in like manner, attempt to assert their rights, a different rule might be announced. CH. VII.J ' PARTNERSHIP ESTATES. 83 to become a partner, or, being partner, to carry on the bnsiiiess lor tlie benefit of the representatives of the deceased, orto leave the estate ofthe deceased in the partnership and in the business on any teiins, and for any purpose, these powers would probably be strictly i)ursut'd ; at least they would never be enlarged by implication. Thus it is clear that the deceased may limit the amount or proportion of his estate which shall remain in the partnership, or go into it, at his own pleasure, and the executors or appointees can no more enlarge this than they can violate any other of his directions. Xor will such a disposition or limitation in any way affect the rights of the creditors of the partnership.(^)* 3. Statutory partnership. — The statute of lUinois^^) makes provisions for the formation of what is termed limited partnerships, under prescribed formalities, niider which, when those ])iovisions have been complied with, the rule that the cleatli of one partner dissolves the partnership, may be avoided. What is said above, relates to general partnerships, and not to those formed under this statute. jy 4. Proceedings on dissolution. — Upon the dissolution of a firm by the death of one paimer, the survivor, before the statute and now, succeeds to the eflects of the firm as a trustee.(^) The relation of trustee and cestui que trust, is at once raised by law between the survivor and the legal representatives of the deceased ; the terms of the trust being, that he will close up the business of the firm as required by law.(*) 5. Surviving partner, — In case of the death of one partner, the surviving* partner or partners shall proceed to make a full, true and comj)lete inventory of the estate of the co-partnership within ills knowledge ; and shall also make a full, true and complete list ..)f all the liabilities thereof at the time of the death of the deceased partner. He or they shall cause the said estate to be appraised in like manner as the individual property of a deceased person.(^) 6. Return of inventory. — He or they shall return, under oath, such inventory, list of liabilities and appraisement, within sixty days after the death of the co-partner, to the county court of (i) Parsons on Partnership, 453; Davis vs. Christian, 15 Gratt., 37; Bur- nett vs. Rhodes, 58 Md., 78. (2) Chap. 84. (3) Miller et al. vs. Jones, 39 111., 54; People vs. White, 11 111., 342. (4) Forrester vs. Oliver, i 111. Ap., 259; lb., 96 111., 315. (5) Hurd's R. S., Chap. 3, § 86. *NoTE.— Where a testator orders his partnership business carried on after his death, unless by clear and unambiguous language it is otherwise directed, only the fund employed in the business before his decease is answerable to a subsequent creditor.— iaioAJe vs. Fetry, 32 N. J. Eq., 791 : Brasfield vs. French, 59 Miss., 633. g4 paiitxp:PvSHip estates. [en. vii. the county of which the deceased was a resident or carried on the partnership business at the time of his death ; if the deceased shall have been a non-resident, then such return shall be made to the county court granting administration upon the effects of the deceased. Upon neglect or refusal to make such return, he shall, after citation, be liable to attach ment.(^) 7. Rights of surviving partner. — Such surviving partner or partners shall have the right to continue in possession of the effects of the partnership, pay its debts out of the same, and settle its business, but shall proceed thereto without delay, and shall account with the executor or administrator, and pay over such balances as may, from time to time, be payable to him in the right of his testator or intestate. Upon the application of the executor or administrator, the county court may, whenever it may appear necessary, order such surviving partner to render an account to said county court, and in case of neglect or refusal may, after citation, compel the rendition of such account by attach meut.(^) a. The administrator can not join the survivor in a suit to collect partnership debts — the survivor alone must sue.(^) 8. Waste and remedy therefor. — Upon the committal of waste by the surviving partner or partners, the court may, upon proper application, under oath, setting forth specifically the facts and circumstances relied on, protect the estate of the deceased partner, by citing forthwith the surviving partner or partners to give security for the faithful settlement of the affairs of the co-partnership, and for his accounting for and paying over to the executor or administrator of the deceased, whatever shall be found to be due, after paying partnership debts and costs of settlement, within such time as shall be fixed by the court. The giving of such security may be enforced by attachment, or, upon refusal to give such security, the court may appoint a receiver of the partner- ship property and effects, with like powers aB.i duties of receivers in courts of chancery — the costs of proceedmgs under this section to be paid by the executor or administrator, out of the estate of the deceased or surviving partner, or partly by each, as the court may order.(^) (i) Hurd's R. S., Chap. 3, ? 87. , (2) Hurd's R. S., Chap. 3, ? SS ; Miller vs. Kingsbury, 128 111., 45- (3) Belton vs. Fisher, 44 111., 32. (4) Hurd's R. S., Chap. 3, § 89; Miller vs. Kingsbury, sitpra. CH. VIT. PARTNERSHIP ESTATES. 85 A surviving partner cannot purchase of himself the assets of the firm.(^) 9. Partnership debts. — The surviving partner retains the property of the firm, and settles up aiFairs of the partnership. The effects are first to be applied to the payment of the joint debts : the surplus divided between the survivor and the personal representa- tives of the deceased. (^) a. The surviving partner has not the right, in the adjustment of accounts between himself and the administrator of a deceased ])artner, to have his individual acc^ount against the deceased deducted from any balance which may be found in his hands as surviving partner, although such debt may be secured by a mortgage. (^) 10. Statute declaratory. — The statute in relation to part- nership is but declaratory — providing some additional remedies, but does not change the rights and duties of parties.(*) Nor does, it affect the right of a court of equity to entertain suits for the adjustment of partnership affairs. (^) 1 1 . Taking account. — In taking account of partnership assets, the state of stock is to be taken as at the death of the deceased partner. (^) The remedy given by statute, to compel a surviving partner to account to the county court with the administrator, is to be governed by the same equitable rules and principles as a proceeding in equity.C^) 12. Survivors may purchase of legal representa- tives. — In the absence of 'all fraud, the survivors of a partnershij) may purchase from the executor or administrator, the interest of the decedent in the partnership, so as to bind all persons interested in the estate.(^) 13. When settled. — No time is prescribed by the statute within which the affaii^s of j^artnership estates must be closed and (i) Nelson vs. Hayner et al., 66 III., 4S7. (2) People vs. White et al., 11 111., 341 ; Ladd vs. Griswold et al., 4 Gil., 25; Miller et al. vs. Jones, 39 111., 54; Winslow vs. Leland, 128 111, 304; Moffatt vs. Thomson, 5 Richardson Eq., 155. (3) Berry et al. vs. Powell, iS III., 98; Caskie vs. Harrison, 76 Va., 85. (4) Forrester vs. Oliver, i 111. Ap., 259; Nelson vs. Hayner et -aX., supra. (5) Breckinridge et. al. vs. Ostrom, 79 111., 71. (6) Remick vs. Emig, 42 III, 342. (7) Mack vs. Woodruff", 87 111., 570; Parsons on Partnership, 347 ; Nelson vs. Hayner, supra. (8) Daviesvs Davies, 15 Eng. Ch., 538 ; Chambers vs. Hovvill, 11 Beav., 13; Cook vs. Collingridge, 3 Eng. Ch., 520. 86 PARTNERSHIP ESTATES. [ciI. YIl. the final accountiug l)ad with the administrator; yet, by analogy, to the two years allowed for the presentation of claims against the estates of deceased persons, it is probably safe to say, that, except in extreme cases, requiring more time for an economical administration of partnership estates, surviving partners should be required by courts, to finally account within two years from the dissolution.(') This will enable unpaid creditors of the firm, to avail themselves of their rights against the estates of deceased part- ners, and offer no obstruction in the way of the final accounting of the representatives of the deceased. 14. Power of administrator. — Any dereliction, mismanage- ment or misapplication, on the part of the surviving partner, may be promptly restrained on the application of the personal represen- tatives of the deceased ;(*) or, such survivors may be compelled to give security, upon the motion of the administrator ;(^) or, the survivor may be required to make sale of partnership effects, as the only certain way of ascertaining their value and making a fair division ;(*) or, he may be compelled to file an account of the part- nership, in which respect the power of the administrator is as complete as the right of the deceased while he lived and was partner.(^) 15. Final settlement. — In rendering an account of partner- ship assets, the surviving partner may properly set-off in his favor the amount of any debts due to the firm from the estate of the deceased partner, without having had them first allowed in probate, the account being stated under equitable rules.(^) If partnership property has come to the hands of an adminis- trator, he is responsible only for the interest of the decedent in the property of the firm, after the settlement of the partnership accounts. A fair settlement, made by him with the other partner, will be sustained. (') 16. No COMPENSATION TO SURVIVOR. — A survivor of a partner- ship has no right to demand compensation for his services in settling (i) Miller vs. Jones, 39 111., 54- (2) People vs. White, 11 111., 341 ; Miller et al. vs. Jones, supra. (3) Sec. 89, supra. (4) Parsons on Partnership, 446. (5) Id.; McKean vs. Vick, 108 111., 373. (6) Parsons on Partnership, supra. (7) Montgomery vs. Dunning, 2 Brad., 220. CH. VII.] PARTNERSHIP ESTATES. 87 the aifairs of a partnership, unless under the terms of the articles of copartnership it is provided that compensation shall be paid for such services. (^) 17. Real estate of a partnership. — Where the money of a partnership has been invested in real estate, such property will, for the purposes of the partnership, be treated as personal property, and may be sold by the survivor, like any other property, when necessary, for the payment of partnership debts. What may be left after th< payment of debts is treated like other lands held in common. (^) (i) Buckingham vs. Morrison, 136 111., 437. (2) Slrong vs. Lord, 107 111., 25 ; See 73 Am. Dec, for authorities. 88 AWARD TO WIDOW OR CHILDREN. [CH. VIII. CHAPTER VIII. AWARD TO WIDOW OR CHILDREN. 1. Widow's award. 2. Not affected by renunciation. 3. Allowance to children. 4. Policy of the law. 5. Right to award becomes fixed upon the death of the husband. 6. Right cannot be cut off by will. 7. Nor by an ante nuptial contract. 8. Widow not justified in seizing and holding money to satisfy claim. 9. Widow's claim need not be presented as other claims. 10. None but widows of bo>ia fide residents entitled to it. 11. Definition of "family." 12. Practice. a. Duty of administrator to set-off. b. Legal title to specific articles vests in widow upon death of husband. c. New rule of preference. d. Appraisers to consider her social condition. 13. Power of court over award. 14. Title vests in widow. 15. Widow bound by her relinquishment, 16. Lien upon real estate. 1. Widow's award. — The widow, residing in this state, of a deceased husband whose estate is administered in this state, wliether her husband died testate or intestate, shall, in all cases, in exclusion of debts, claims, charges, legacies and bequests, except funeral expenses, be allowed, as her sole and exclusive property forever, the following, to-wit : * Yi^^t — The family pictures and the wearing apparel, jewels and ornaments of herself and her minor children. Second — School books and family library of the value of $100. lliird — One sewing machine. Pourih — Necessary beds, bedsteads and bedding for herself and family. yiftli — The stoves and pipe used in the family, with the neces- sary cooking utensils; or, in c^se they have none, $50 in money. * NOTK.— The widow's award is barred in 20 years.— Barnes vs. Maring, 23 111. App., 68. CH. VIII.] AWARD TO WIDOW OR CHILDREN. 89 Sixth — Ploiiscliold and kitchen furniture to the vahie of Seventh — One miloh cow and calf/ for every four members of lier family. Eighth — Two sheep for each member of her family, and the floeces taken from the same, and one horse, saddle and bridle. Ninth — Provisions for herself and family for one year. Tenth — Food for the stock above specified, for six months. Eleventh — Fuel for herself and family for three months. Twelfth — $100 worth of other property suited to her condition in life, to be selected by the widow. Which shall be known as the widow's award ; or the widow may, if she elect, take and receive, in lieu of the foregoing, the same personal property, or money in place thereof, as is or may be exempt from execution or attachment against the head of a family residing with the samc.(') The appraisers shall make out and certify to the county court an estimate of the value of each of the several items of property allowed to the widow ; and it shall be lawful for the widow to elect whether she will take the specific articles set apart to her, or take the amount thereof out of other personal property at the appraised value thereof, or "whether she will take the amount thereof in money, or she may take a part in property and a part in money, as she may prefer ; and in all such cases, it shall be the duty of the executor or administrator to notify the widow as soon as such appraisement shall be made, and to set apart to her such article or articles of property, not exceeding the amount to which she may be entitled, and as she may prefer or select, within thirty days after written application shall be made for that purpose by such widow. And if any such executor or administrator shall neglect or refuse to comply with the above requisition, when application shall be made for that purpose, he shall forfeit and pay for the use of such widow the sum of twenty dollars per month for each month's delay to set apart said property so selected, after the said term of thirty days shall have elapsed, to be recovered in the name of the People of the State of Illinois, for the use of such widow, in any court having jurisdiction of the same. When there is not property of the (i) Kurd's R. S., Chap. 3, § 74; Lesher vs. Wirth, 14 111., 39. 90 AWARD TO WIDOW OR CHILDREN. [cH. VIII. estate, of the kinds mentioned in the preceding section, the apprais- ers may award the widow a gross sum in lieu thereof, except for family pictures, jewels and ornaments.(^) 2. Right xot affected by renunciation. — The right of a widow to her award shall in no case be affected by her renouncing or failing to renounce the benefit of the provisions made for her in the will of her husband, or otherwise.^) .3. Allowance to children. — When the person dying is at the time of his death a housekeeper, the head of a family, and leaves no widow, there shall be allowed to the children of the deceased, residing with him at the time of his death (including all males under eighteen years of age, and all females), the same amount of property as is allowed to the widow by this act.(^) The allowance to the widow or children is strictly limited to cases where the deceased resided in this state.C) Where one sojourned temporarily in this state in company with his children, but had a permanent home in another state, and died here, his children were not entitled to the allowance.(^) 4. Policy of the law. — The provisions made for the wife of a deceased resident of this state, is a ben6fit created in her favor by [)0sitive law, and adopted for reasons deemed wise and politic.(^) The allowance is as much for the benefit of the children as for the wife, and where there are children of the deceased residing with the widow, she has no power by an ante nuptial agreement or otherwise, to deprive them of this means of support for their tender years, which the law has given. C^) The design of the law was to furnish the necessary sustenance for such household for one year after the death of the husband, and to enable the widow to keep her domestic circle, as respects the remaining members, unbroken during that time ; and the allowance of bedding, furniture and provisions, should be made upon this basis.(') (i) Kurd's R. S., Chap. 3, ? 75 ; Furlong vs. Riley, 103 III, 628. (2) Kurd's R. S., Chap. 3, § 76; Kellogg vs. Holley, 29 111., 437; Deltzer vs. Sheuster, 37 111., 301. (3) Kurd's R. S., Chap. 3, | 77 ; Lesher vs. Wirth, 14 III, 39. (4) Sec. 74, supra. See post p. 92. (5) Veile vs. Koch, 27 111., 129. (6) Phelps vs. Phelps, 72 111., 545- (7) Id. McAnnulty vs. Mc Annuity, 120 111., 26. (8) Strawn et al. vs. Strawn, 53 111., 263. CH. VIII.] AWARD TO WIDOW OR CHILDREN. 91 6. Her right to the award. — The right of tlie widow to her award is fixed upon the death of the husband, and is not lost by her death before appraisers are appointed. Should she die before the value of her award is determined by the appraisers, her administrator may sue for and recover the value from the husband's estate.(^) A creditor of the widow cannot have allowance set oiF.(^) 6. Right cannot be cut off by will. — The husband cannot, by his will, deprive his wife or children of this allowance,(^) but may, by giving away all of his estate before his deatb,(^) or by encumbering it by a valid lien.(''*) 7. Nor by an ante nuptial contract. — The right of a widow, having in her care dependent children of the deceased, to the wido\^'s award out of the estate of her husband, and to the estate of homestead provided by the statute, cannot be released by her, nor is it affected by an ante nuptial contract entered into between herself and the deceased ;(^) but where the deceased left no children dependent upon the wife, and previous to her marriage she had entered into an ante nuptial contract with him, that at his death she shall receive $1,500 in lieu of dower and all other rights to his property, the payment of that sum by the administrator will be a complete defense to her claim upon the estate for the award. C^) Wiiere an ante nuptial contract providing that the widow should accept a sum named in lieu of the allowance was acted upon by the widow by accepting the sum named, it was held that she was bound thereby, though there were children. (^) 8. Widow not justified in seizing and holding money TO satisfy claim. — While the right of a widow of a deceased resident of Illinois to the award provided by statute is fixed and absolute, yet she is not justified in seizing and holding, as against the heirs of her husband, a sum of money on hand at the time of his death, when there has been no administration upon the estate (i) York vs. York, 38 111., 522. (2) Miller vs. Kingsbury, 28 111. Ap., 532. ( (3) Phelps vs. Phelps, 72 111., 545. (4) Padfield vs. Padfield at al., 78 111., 16. (5) King vs. Goodwin, 130 111., 102. (6) Phelps vs. Phelps, supra; McGee et al. vs. McGee, 91 111., 548. (7) Brenner vs. Gauch, 85 111., 368; Mahill vs. Mahill, 113 111., 465 , Spencer vs. Boardman, 118 111., 553. (8) Weaver vs. Weaver, 109 III., 225. 92 AWARD TO WIDOW OR OIIILDRK.V. [oil. VIII. and no ascertainment of the value of the award in her case, under her statutory right to such award. (^) 9. Widow's claim need not be presented as other claims. Tlie widow's award, although in one sense a demand against the estate of her husband, is not such a demand as is required to be exhibited against the estate within two years or be forever barred. (^) 10. None but widows of bona fide residents entitled to IT. None but the widows or children of decedents who, at the time of death, were bona fide residents of this state are entitled to the statutory allowance provided for Id section 74. (^) 11. Family. — The word " family," as used in this statute, does not include alone the widow and minor child'-eu of the deceased, but includes such persons as constituted the family r>f the deceased at the time of his death, whether servants or children who had attained their majority. In this is not to be included boarders, but only the persons constituting the private household of the deceased. ( ) A son or daughter residing with the father does not cease to be a member of his family when he or she arrives at the age of twenty- one or eighteen years, respectively, by reason of that fact alone.(^) Tlie above definitions of the word "family," as used in this con- nection, may be considered somewhat restricted by the enactment of section 77, supra. 12. Practice. — The law does not require the appraisers to set apart to the widow the articles of specific property ; they are only to fix a value upon such articles as are not given a value by the statute, and certify the same to the court.(^) a. It is the duty of the administrator to set off to the widow the specific articles of personal property, and failing to do so would be evidence of a conversion. (') 6. The legal title to specific articles does not vest in the admin- istrator, but vests in the widow upon the death of the husl)and, and the title does not depend upon the action of the appraisers. i^**) (i) Tyler et al. vs. Daniel et al, 65 111., 316. (2) Miller vs. Miller, 82 111., 463- (3) Veile vs. Koch, 27 111., 129 ; Rock vs. Haas, no III. 528. (4) Strawn et al. vs. Strawn, 53 111., 263. (5) Chicago & N. W. R. R. Co. vs. Chisholm, 79 111., 584 (6) York vs. York, 38 111., 552- (7) ^b. (8) lb.; Cross vs. Carey, 25 111., 562. CH. VIII.] AWARD TO WIDOW OR CIIILDKEN. 93 c. The statute of 1872, supra, makes au exception to the above rule, which prevailed in this state up to that date. The widow now takes her allowance subject to funeral expenses. So, where her award excieeds the value of the personal property which she elects to take, the title thereto becomes vested in her as her sole and separate property forever, subject only to the payment of funeral expenses. (^) Where the widow's claim is not paid by the application of the ])ersoual property, she cannot claim preference over other creditors of the estate, in the distribution of the proceeds of the sale of the real estate. (^) It is held that, under the law of 1872, the above rule, which prevailed under the old statute, is changed, so far as to make the widow a preferred creditor over all except funeral expenses, in the distribution of the proceeds of the real estate, where her award is not met by the personal property. (^j d. In iixiiig the allowance, the appraisers should take into con- sideration the condition and mode of life in which the widow and family were left by the deceased husband — and regard as necessary ihat furniture which is the ordinary and appropriate furniture for such homesteads. (■*) Where there are no stoves in use in the familv, $50 should be allowed — where there are stoves, no estimate is to be made for that item. No estimate is to be made for family jcM^els and ornaments. (^ 13. Power of the court over the award. — The county court, from its general powers in supervising the administration of estates, has the power, for cause shown, to set aside a report of appraisers, making out and certifying to that court an estimate of the value of the items of property mentioned in the statute as the widow's award •,{^} but while the court has this supervisory power, it has no power to revise and modify the estimate, and substitute the judgment of the court for the judgment of the appraisers.^) (i) McCord vs. McKinley, 92 III., u (2) Cruce vs. Cruce, 21 111., 46. (3) Rector vs. Reavill, 3 111. Ap., 232. (4) Strawn et ai. vs. Stravvn, .53 111., 663. (5) Kurd's R. S., Chap. 3, I 75. (6) Miller vs. Miller, 82 111., 463; In re Scoville's estate, 20 111. Ap., 426 ; Boys vs. Rogers, 21 111. Ap., 534. (7) lb. 94 AWARD TO WIDOW OR CHILDREN. [c"JI. VIII. Upon the hearing of a j)ctition of an administrator for leave to sell lands of the deceased to pay debts and liabilities, the allowance to the widow was held not to be final and conclnsiv^e as to the legatees who were made i>arties thereto, but that in such proceeding it miglit be shown to be fraudulent, too large, oppressive or uujust.(^) Unless impeached for fraud, the award as made by the appraisers is con- clusive upon the widow. C*) In such a proceeding, upon cause shown, the court may set aside the award and appoint otiier appraisers to make a new one.(^) On appeal to the circuit court from an order of the county court approving the appraisers' estimate of the value of property allowed as widow's award, the circuit court can only exercise such power as the county court might have done.(*) 14. Title of property vests in widow — The title to prop- erty taken by the widow, whether they be the specific articles named in the statute or others taken in lieu thereof, upon being receipted for by he)-, vest in her as her separate pi'operty, subject, in cases where the estate is unable to |)ay funeral ex})enses, to a lien for the payment of such expenses.i^^j The amount of the award will not draw interest. (*^) J 5. Widow rp:ltnquishing. — Where a widow relinquishes her right to the specific articles allowed by law, and elects to receive others in lieu thereof, she is bound by such action. (''') 16. Lien upon real estate. — As we have seen above, in cases where the widow's award is not paid out of the personal estate, the amount remaining unpaid, after the application of the personalty to the payment of funeral expenses and the award, becomes a lien upon the real estate of the decedent, whether he died testate or intestate, and the widow becomes a preferred creditor to the extent of her unpaid allowance, entitled to be first paid from the proceeds of the sale of real estate.^) To this end, like any other creditor, she (i) Marshall et al. vs. Rose, 86 III., 374; Spencer vs. Boardman, 118 111., 553 ; Goeppner vs. Leitzelman, 98 111., 409. (2) Telford et al. vs. Boggs, 63 111., 498. (3) lb. (4J Miller vs. Miller, 82 111., 463. (5) McCord vs. McKinley, 92 111., 11. (6) Strong vs. Strong, 131 111., 210 ; Lynch vs. Hickey, 13 111. Ap., 139. (7) Telford et al. vs. Boggs, 63 111., 49S. C8) Cruce vs. Cruce, 21 111., 46; Rector vs. Reavill, 3 111. Ap., 232; Telford vs. rJoggs, supra. ClI. VIIJ.] AWAliD TO WIDOW OK CHll.DKKJSI. 95 may compel a sale of the real estate to meet her demand, and such sale will, in cases of intestacy, operate only upon the real estate of the heir, leaving her homestead and dower exempt; but in the case of a testate estate, where the wife took real estate uiKjer her husband's will, it was held inequitable to sell the lands devised in the will t<.) others, for the purpose of realizing money out of which to pay the award, leaving the real estate devised to the widow to bear no ])art of the burden, which should be common to all the real estate of the deceased, except the homestead right. (^) (i) Deltzer et al. vs. Scheuster, 37 111., 30 1. 96 CLAIMS AGAliSST ESTATES. [CH. IX. CHAPTER IX. CLAIMS AGAINST ESTATES. 1. Notice — adjustment. 2. What is a claim. 3. Claim for monument for deceased. 4. Partnership debts. a. Not to be allowed until partnership assets are exhausted. b. Individual creditors first to be paid. c. Excess of individual estate may be applied to pay partnership debts. d. Partnership debts joint and several. e. Allowance of partnership debt evidence of want of partner- ship assets. 5. Court may entertain equitable claims. 6. Funeral expenses. 7. Claim of former executor or administrator. 8. Forfeiture enforcible as a claim. 9. Taxes. 10. How and when claims should be presented. a. Surety discharged if note be not probated against principa''^ estate. b. Filing claim at adjustment term is commencement of a Sfi'i 11. Claim presented after two years. 12. Claims presented after administration is completed 13. Proceedings. 14. Continuance. 15. Costs. 16. Oath of claimant. 17. Judgment as evidence. 18. Offset^udgment for estate 19. Claims not due. 20. Claimant may chose his forum. 21. How allowed. 22. Cannot be submitted to arbitration. 23. Judgments bear interest. 24. Defenses -to claims— duty of administrator. a. Any one interested may defend and prosecute appeals or certiorari. b. Equity will interfere only in cases of fraud. c. Gift cannot be enforced. d. Post mortem charges not enforcible. CH. IX.] CLATA[S AGAINST ESTATES. 97 e. Wife may insist on claim. f. There must be a present debt. g. Claims of foreign administiator. h. Claim not presented to deceased. 25. Defenses to claims — Limitations. a. General statute. b. Filing after adjustment day does not arrest the general statute. c. Six months' statute may be insisted on against material man. d. Claim on guardian's bond not barred by five years. e. Long delay. f. Contingent claim barred. g. In foreclosures. 26. Practice — judgment can not exceed the demand. a. Prosecution of claim not governed by technical rules. b. Judgment which is not a lien has no preference. c. Claims should be proven as alleged. d. Allowance of a claim a judgment, and draws six per cent. interest regardless of what it drew before judgment. e. No particular form necessary. f. Set-offs must be mutual. g. In scire facias the usual judgment should be rendered h. Plene Adniinistravit — burden. i. Allowance without notice — void. j. Debtor can not buy up claims and offset k. Administrator need not offset. /. Writ of attachment — abatement. m. Plene adniinistravit not good plea. n. Claim barred by two-year statute may be offset. o* Judgment against estate not a specific lien. p. Claim of administrator for money overpaid. q. No pleadings are necessary. 27! Change of venue. 28. Judgment conclusive. 29. Demands of executor or administrator, how allowed 30. Insolvent estates. 31. Fees not to be charged. 1. Notice — ad.justment. — Every adminisfrator or executor shall fix upon a term of the court, within six months from the time of his being qualified as such administrator or executor, for the adjustment of all claims against such decedent, and shall publish a notice thereof for three successive weeks in some public news- paper published in the county, or if no newspaper is published in the county, then in the nearest newspaper in this state, and also by putting up a written or printed notice on the door of the couit house, and in five other of the most public places in the county, 98 CLAIMS AGAINST ESTATES. [cil. IX. Dotifying and requesting all persons having claims against such estate to attend at said term of court for the purpose of having the same adjusted, (the first publication of said notice to be given at least six weeks previous to said term,) when and where such claim- ant shall produce his claim, in writing; and if no objection is made to said claim by the executor, administrator, widow, heirs or others interested in said estate, and the claimant swears that such claim is just and unpaid, after allowing all just credits, the court may allow such claim without further evidence, but if objection is made to such claim, the same shall not be allowed without other sufficient evidence. The court may allow either party further time to pro- duce evidence in his favor, and the case shall be tried and determ- ined as other suits at law. Either party may demand a jury of either six or twelve men, to try the issue, and it shall be the duty of the county clerk, when a jury is demanded, to issue a venire to the sheriiF of the county to summon a jury, to be composed of the number demanded, (^) An administrator gives the court jurisdiction of his person by giving notice for the presentation of claims against the estate, and will be bound to take notice of the orders of the court continuing claims filed on or before the day named in his notice.(^) An order for the payment of a claim filed after the adjustment day, where the personal representative has no notice of the proceed- ing, is a nullity. (^; 2. What is a claim against a decedent's estate. — No claims are properly chargeable against the estate of a deceased person , except such as arise out of some contract, express or implied, entered into by him during his lifetime; therefore, a contract entered into by the widow of a deceased person for the erection at his grave of a monumeiii", is not a proper charge for allowance aiiainst the administrator * Nor does the fact that the adminis- trator knew of the contract and of the work being done, without any objection on his part, make the estate liable. (^) (i) Kurd's R. S., Chap. 3, ? 60 ; Walker vs. Alexander, 24 N. E. Rep., 557. (2) Ward vs. Durham, 134 111., 195. (3) Hales vs. Holland, 92 III., 49^. (4) Foley vs. Bushway, 71 111., 3S6; Morgan vs. Morgan, 83 111., 196. (5) ^. en. TX.] CT.ATMS AGAINST ESTATES. 99 The death of a party does not terminate any contract he may have entered iut().(M But it terminates an agency.^) A judgment released without having been paid by the defendant, at his request, is a })roper claim for allowance against the estate of the deceased defendant.(^) Breaches of covenant running with the land, accruing before the death of the covenantor, render the estate of the covenantor liable.(*) Where there is a contract for the purchase of land, it descends to the heirs of the vendee as real estate, and they may call on the executor or administrator to discharge the contract out of the per- sonal estate of the vendee, so as to enable the heirs to demand a conveyance from the vendor. (^) 3. Claim for monument to deceased. — Where the widow of an intestate made a contract for the erection of a monument over the grave of her husband, to be paid for from his estate, the admin- istrator cannot be required to pay it\^) 4. Partnership debts. — Debts against the firm of which the intestate was a member, after the partnership assets have been exhausted in the payment of the firm debts, become an equitable claim against the estate, subject to the individual debts against the estate, all of which must be first paid, before any payment can be allowed upon the firm debts, and this should be provided for in the order of the probate court, in allowing the claim against the estate, or, by order of the circuit court ordering the sale of real estate for the payment of claims against the estate.(') a. No claim should be allowed against the estate for a partner- ship debt till it is shown that all the partnership assets have been exhausted, except the order provide for a preference to individual creditors. (®) (1) Smith vs. Coal Mining Co., 83 111., 498; Rapp vs. Phcenix Ins. Co., 113 111., 390. (2) Rapp vs. Phoenix Ins. Co., supra; Pratt vs. Trustees, 93 IH., 475 ; Lochenmyer vs Fogarty, 112 111., 572. (3) Howell vs. Edmonds, 47 111., 79. (4) I Archibold's Nisi Prius, 356. (5) Champion at al., vs. Brown, 6 Johnson's Ch., 398 ; Strong vs. Lord, 107 111., 26. (6) Foley vs. Bushway, 71 111., 3S6 ; Morgan, vs. Morgan, 71 111., 386. (7) Ladd vs. Griswold et al., 4 Gil., 25. (8) Moline Water Power Manf. Co. vs. Webster, 26 III., 239 ; People vs. Lett et al., 36 111., 447 ; Mason vs. Tiffany et al., 45 111., 392 ; Doggett vs. "Oill 108 111., 560. 100 CLAIMS AGAIN.sr KSTATE.S. [cii. IX. b. Individual creditors of the deceased may insist upon the full payment of their claims before any payment is made upon claims due from a partnership of wliich he was a member; but heirs may not object (^) c. Where a partnership and its members are in insolvency under one commission, and the separate estate of one partner is more than enoui^h to pay his separate debts, the surplus of that estate over such debts is to be added to the partnership estate, and applied to the payment of joint debts, before paying interest on the separate debts. (^) d. Every partnership debt is joint and several, and in all such cases resort may be primarily had for the debt to the surviving j)artners, or, as above stated, to the estate of the deceased. (^) e. The allowance of a ])artnership claim against the estate of a deceased member of the firm is prima facie evidence that partner- .-fhip assets were before then exhausted.!^) 5. Equitable claims. — The county court may entertain and adjudicate upon claims against the estates of deceased persons of a purely equitable character, and is not restricted in its adjudications to those of a legal nature. In the adjustment of equitable claims, the courts may adopt the forms of procedure in equity ; but where third parties are interested in the subject matter, the county court has not jurisdiction. (^) 6. Fuxeral expenses. — The reasonable and necessary expen- ses of the burial of a deceased person are a charge against his estate; the duty of burial is upon the executor, and, in the absence or neglect of the executor, the law implies a promise from the executor to remunerate one who incurs the expense of such burial ; and if he have assets he may be comjielled to do so.[^) Funeral expenses (i) Id ; See 77 Am. Dec, 114. for brief of authorities. (2) Tliomas vs. Minrit, 10 Gray, 263. (3) Ma'-on vs. TitTanv, 45 111.. 392. (4) 3.; McCall vs. Lee. 120 111., 261. (5) Pahlman et al. vs. Grave?, 26 111., 405 ; Moore et al. vs. Rogers, 19 111., 347; Dixon vs. Buel, 21 HI., 203; In Re Steele, 65 111., 322 ; Garvin et al. vs. Stewart, 59 111., 229; Molina Water Power Co.vs. Webster, 26 111. 239; Hurd vs. Slaten et al., 43 111., 348; Jennings et al. vs. McConnel et al., 17 111., 148; I)og^g:ett vs. Dill, 108 111., 560; McCall vs. hee, si/pm; Brandon vs. Brown, 106 111., 519; Wadsworth vs. Connell, 104 111., 369; Wolf vs. Beard, 123 111., 585. (6) Patterson vs. Patterson, 59 N. Y., 574; Rappelyea vs. Russell, i Daily, 214. OH. IX.] CLAIMS AGAINST ESTATES. 101 and expenses of administriition, need not be presented to the court for allowance, but may be paid by the executor or administrator, without being first presented and allowed. The erection of a suitable headstone at the decedent's own grave may properly be considered as a part of his funeral expenses, in a case where the rights of creditors cannot be defeated thereby. (^) 7. Claim of a FOUMEn executor ou admixistrator. — One who has been an executor or administrator of an estate and resio-ned iiis trust, can not maintain a suit either at law or in equity against his successor, to recover a balance due to him from the estate. His remedy is in the settlement of the accounts of administration in the court of probate. (^) 8. Forfeiture enforcible. — Where the deceased in his life- time executed a promissory note, with a clause providing for the payment of ten per cent, interest from date if not paid at maturity, the clause of forfeiture is enforcible against his estate, and this, alihougli ills death occurred before the maturity of the note.Q The death of one who contracts to pay a penalty for the non-per- formance of a legal contract before the time of performance, will not operate to excase the non-performance, and relieve the estate of such pei'son from the penalty. *, 9. Taxes due at the death of the owner are payable from the personal estate, and subsequent taxes are chargeable upon the land.(^) Taxes, insurance and court costs paid in an ejectment suit are not legitimate charges against an estate.(*) 10. How and when pre:>ented. — Claims should be presented against an estate within two years from the date of letters, whether notice for presentation is given or not, or be barred from partici- pating in assets previously inventoried ;(''; and claims presented to (i) Wood vs. Vandenburgh, 6 Paige, 277 ; Samuel vs. Thomas, 5 Wis., 549; Harris vs. Millard, 17 111. Ap., 512; See 2 Probate Reports, 104, for brief ol anihorities; Bendall vs. Bendal!, 24 Ala., 295. (2) Prentice vs. Dehon, 10 Allen, 353. (3) Reeves vs. Stipp, 91 111., 609. (4) Id. (5) Grisvvold vs. Griswold, 4 Brad., 216. (6) Walker etal. vs. Dit-lil, 79 111., 47^ (7) Rowan vs. Kirkpatrick, 14 111., i;\sioo vs. Pool, 15 111., 47; Stillman vs. Young et al., 16 111., 318; Thorn vs. Walson, 5 Gil., j26 ; Judy et al. vs. Kelley, 11 III., 211 ; People vs. White, 11 111., 341 ; Wingate vs. Pool, 25 111., 118; Russell vs. Hubljard et a!., 59 111., 336; Shepherd vs. Rhodes et al., 60 111., 301 ; Blanchard vs. Williamson, 70 III., 647; Baird vs. Chapman, 120 111., 537, lUZ CLAIMS AGAINST ESTATES. [CH. IX. the court for allowance after the expiration of that limit, M^hen properly proven, should be ordered paid out of property belonging to the estate which has not been inventoried, whether found pre- viously or subsequently to the judgment (') The judgment of the court allowing such a claim should be special, and not general. (^) If an administrator does not present an inventory of the real estate within two years from the date of his letters, any creditor filing his claim with the clerk before the presentation of such inventory is entitled to enforce the payment of the same out of such real estate.(^j Formerly a presentation of a copy of the claim to the adminis- trator within two years was a sufficient exhibition of the claim, (^) but it is otherwise under the statute of 1872. A claim filed with the clerk on the day fixed by the adminis- trator for the adjustment of claims, and within two years from the grant of letters, is a sufficient " exhibiting" of the claim within the meaning of the statute, although such claim was not regularly continued from term to term ; and when more than three years after such filing, a trial was had, it was held that such claim was entitled to be paid generally out of the personal assets of the estate, as though allowed at the adjustment terra. (^) a. Where the principal in a note dies, the note must be presented as a claim against his estate within two years of date of letters, or the surety will be discharged to the extent of what might have been received on distribution of the estate.(*) 6. Filing a claim is not regarded as the commencement of a suit, unless it be at the term fixed by the administrator for adjustment of claims and continued from term to term.(^) 11. Claims presexted after tavo years. — To facilitate the settlement of estates, the statute provides that all demands not exhibited to the court within two years from the granting of letters shall be forever barred, unless the creditor shall find other estate of (i^ Bradford vs. Jones, 17 111., 93. (2) Russell vs. Hubbard et al, 59 111., 336. (3) Sloo vs. Pool, 15 111., 47. (4) Wells vs. Miller, 45 111., 33. (5) Barbero vs. Thurman, 49 111., 284; Wallace vs. Gatchel, 106 111., 316; McCall vs. Lee, 120 111., 261; Ward vs. Durham, 134 111., 195; Phoenix Ins. Co. vs. Gudery, 20 111. Ap., 161. (6) Hurd's R. S., Chap. 132, § 3, Brockman vs. Sieverling et al., 6 111. Ap., 512. (7) Reitzel et al. vs. Miller, 25 111., 67. CH. IX.] CI-AIM.S AGAINST E.STATKS. 103 the deceased not inventoried or accounted for by the executor or administrator, in which case the claim shall be paid pro rata out of such subsequently discovered estate.(') This statute is not con- strued by the courts in a ni:inner to absolutely bar any recovery whatever uj)on claiuis exhibited after the expiration of two years, but only so as to prevent the application to their payment of any of the assets of the estate previously inventoried, while, if not otherwise objectionable, the claims are allowed by the court, by special judgment, directing payment to be made from assets discov- ered and inventoried after the lapse of two years from the granting of letters of aduiinistrutiou. And it makes no differL-nce whether such assets are found before or after the judgment is rendered. C*) If a claim is filed within the two years, that statute does not run against it, though it was not sworn to until after the two years. (^) Where the cause of action, as for covenant broken, does not accrue until more than two years after the death of the debtor and the grant of letters and settlement of the estate, the two years limitation of the statute, as to claims against estates, will not apply to an action brought by the creditor against the administrator and lieirs of the deceased debtor.(*) 12. Claims pkesented after admixistratiox co^niple- TED. — The right to present claims to the probate court and have them allowed, if found to be valid, with such a judgment as the time of filing the claim shows it entitled to, is not cut off by the approval of the final account, and discharge of the administrator. Although he may have been finally discharged, he may be again summoned into court to answer to some one holding a claim against his decedent. If the claim is proven to be a valid claim, the claimant is entitled to a judgment, to be jwid in due course of administration, or, out of assets thereafter -discovered, according as it was presented before or after the expiration of two years from the date of letters. (^) . ' (i) Hurd's R. S., Chap. 3, § 70. (2) J'horn vs. Wilson, 5 Gil., 26; Bradford vs. Jones, 17 111., 93 ; Shep- herd vs. Bank, 67 111., 292; Russell vs. Hubbard at al.,59 111., 335; Stone vs. Clarke, 40 111., 41c ; Sloo vs. Pool, 15 111., 47 ; Peacock vs. Haven et al., 22 111., 23; Judy etal., vs. Kelley, 11 111., 211 ; People vs. White, lb. 342; W^in- gate vs. Pool, 25 111., 118. ^3) Wile vs. Wright, 32 Iowa, 451. ^4^ Duggar et al. vs. Oglesby, 99 111., 405. (5) Diversey vs. Johnson, 93 III., 547 ; Blanchard vs. Williamson, 70 111., 647 ; Sutherland vs. Harrison et al., 86 111., 363. 104 CLAnrs against estates. [ch. ix. 13. Claims afterwards presented— process.— Whoever has a claim agauist an estate, aud fails to present the same for adjustment at the term of court selected by the executor or admin- istrator, may file a copy thereof with the clerk of the court ; where- upon, 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.(^) Claims should be presented to the probate court, either on adjustment day or on notice by the claimant; and if not allowed, should be continued to a day certain, or withdrawn, so as not to be allowed without giving the administrator notice, that he may have the opportuuiiy u> ; ppe ir aud contest the clai i (^} 14. Continuance. — If the summons is not served ten days before the first day of the term to which it is returnable, the cause shall be continued until the next term of the court, unless the parties shall, by consent, proceed to trial at the return term.f ) 15. Trial — costs. — Upon the trial of such cause, the same proceedings may be had as if the claim had been presented at the time fixed for the adjustment of claims against the estate, but the estate shall not be answerable for the cost of such proceeding: Provided, that when defense is made, the court may, if it shall deem just, order the whole or some part of the costs occasioned by such defense, to be paid out of the estate.^*) This only applies to such costs as might have been avoided by an appearance at the adjustment term.(^) This section has reference to costs, which accrue in the prosecu- tion of claims presented to the county court for probate or upon appeal therefrom. Where the claimant chooses to litigate the claim before another forum, as he may do, the costs follow the result of the suit as between other suitors, even though the suit is com- menced after the adjustment term j^®) but the above rule, that estates (i) Kurd's R. S., Chap. 3, ? 6r. (2) Propst vs. Meadows, 13 111., 157. (3) Kurd's R. S., Chap. 3, 'i 62. (4) Kurd's R. S., Chap: 3, ? 63. (5) Wallace vs. Gatchel, 106 111., 315. (6) Rosenthal! vs. Magee, 41 111., 370. CM. IX.] CT>\IMS AGAINST ESTATES. 105 are not liable for extra costs accruing in the allowance of claims filed after the adjustment term, is an inflexible one.(^) 16. Oatpi of claimant.— The court may, in its discrotion in any case, before giving judgment against any executor or adminis- trator, require the claimant to make oath that such claim is just and unpaid: Provided, that the amount of such judgment shall not in such case be increased upon the testimony of the claimant.(^) 17. Judgment as evidence. — A judgment regularly obtained, or a copy thereof duly certified and filed with the court, shall be taken as duly proven ; and all instruments in writing, signed by the testator or intestate, if the hand-writing is proven and nothing vis shown to the contrary, shall be deemed duly proved. (^) An authenticated judgment from another state or country, ren- dered against the deceased in his lifetime, makes 2l prima facie case against his estate. But such a judgment rendered against an admin- istrator of the deceased in another state, will not sustain an action against the administrator appointed in this state, but to maintain such action, resort must be hud to original eviilence.(^) Where an administrator appointed in one state goes into another state and is there served with process, he will be bound by the judgment which may be rendered. (^) 18. Offset— judgment for estate.— When a claim is filed or suit brought against an executor or administrator, and it appears on trial that such claimant or plaintiff is indebted to such executor or administrator, the court may give judgment therefor, and execu- tion may issue thereon in favor of the executor or administrator.(8) 19. Claijis not due.— Any creditor, whose debt or claim against the estate is not due, may, nevertheless, present the same for allowance and settlement, and shall, thereupon, be considered as a creditor under this act, and shall receive a dividend of the said (i) Russell vs. Hubbard et al., 59 111., 335. (2) Huni's R. S., Chap. 3, ? 64. (3) Kurd's R.S., Chap. 3, 'i. 65. (4') Stacey vs. Thrasher, 6 Howard, 44; Hobson et al. vs. Payne, 45 111., 158 ; Rosenthall vs. Renick et al, 44 111., 202 ; Judy et al. vs. Kelley,' 11 111.', 211 ; Hill vs. Tucker, 13 Howard, 458 ; As to manner of authentication, see U. S. Rev. Statutes, 1874, title 13, Chap. 17; McGarvey, vs. Darnall 134 111 367- (5) Evans vs. Tatem, 9 Sergeant & Rawle, 252; See note 11, Am. Dec, 723 ; Coates vs. Mackey, 56 Md., 416 ; Price vs. Mace, 47 Wis. 2X (6) Hurd's R. S., Chap. 3, ? 66. lOG CLAIMS AGAINST ESTATES. [CH. IX. decedent's estate, after deducting a rebate of interest for M'liat he shall receive on such debt, to be computed from the time of the allowance thereof to the time such debt would have become due, according to the tenor and effect of the contract.(^) Under the provisions of a prior section of the statute, (Sec. 70) all debts against an estate are required to be exhibited against an estate within two years from the grant of letters, and all demands not so exhibited, shall be barred, unless assets of the estate, not inventoried, are discovered out of which such demands may share in the settlement of the estate. If a claim could not be allowed, until due, and it happened not to become due until the expiration of the two vears from the grant of letters, it might be in tlie power of the administrator by inventorying all the estate, to defeat the col- lection of the claim. (^) 20. Claimant may choose his forum. — A creditor is not compelled to present his claim to the probate court, but may choose his forum, and resort in the first instance to the circuit court.(^) It is a sufficient exhibition of a claim against an estate to file it in the probate court. (^) And it has been held, under the provisions of the statute of frauds of this state,(^) that if no person administers on the estate of a deceased person, within one year after his death, a separate suit mav be maintained against the heirs or devisees of such deceased, on all his contracts and undertakings.(*) 21. How ALLOWED. — Where it is sought to revive a judgment rendered against a deceased person in his lifetime, against his admin- istrator, the judgment of the court should be that the amount of such judgment should be paid in due course of administration, and it is error in such a case to award execution against the goods and chattels, lands and tenements of the deceased. Q 22. Arbitration. — An administrator can not submit a claim against his intestate to arbitrators for their decision, so as to bind the estate. Claims allowed upon an award made by arbitrators, are (i) Hurd's R. S., Chap. 3, 1 67 ; Dunnigan vs. Stevens, 122 III., 397. (2) Hall vs. Hoxev, 84 III., 616. (3) Rosenthall vs. McGee, 41 III., 371; Wells vs. Miller, 45 111., 33; Dar- ling vs. McDonald, loi 111., 370. (4) People vs. White et al., 11 111., 341- (5) Hurd's R. S., Chap. 59, \ 15. , „ , (6) Dodds et al vs. Walker et al., 9 111. Ap., 37; People vs. Brooks, 123 111., 246. (7) Turney vs. Gates, 12 111., 141. C"- 'X-] CLAIMS AGAINaX INSTATES. ]07 v()i(l.(') And \vhore, on appeal to tlie circuit court froir. ihe allow- anop of a claim in probate, the case was by the court referred to arbitrators, and judo;ment entered ujion their award, to be paid in due course of administration, it w'as held that such proceedino^ in the circuit court were void, but did not affect the allowance of the claim in probate from which the appeal was taken. (^j 23. Interest. — When allowed, a claim bears six per cent, interest, like any other judgmeut^\^^j 24. Defenses to claims. — It is the duty of administrators and executors to be vigilant in interposing against claims presented against the estates committed to their care, all legal defenses thereto known to them, or which may be ascertained upon investigation ; and to this end they should interpose the presumptions and limita- tion^ of the law against such claims,('') and cannot waiv^e the benefit thereof.(^) Failing to interpose all lawful defenses to claims, an administrator becomes liable on his bond.i^^j a. Tlieir omission to perform their duty in this respect, will not preclude others affected thereby from doing so; but both the heirs and other creditors of the decedent may appear and defend in the ]>robateponrt, or prosecute appeals from the allowance of a claim. C^) No reason is seen why they may not also prosecute writs of certiorari. h Equity will not interfere to relieve against a judgment in probate, at the suit of an heir, where it appears from the bill that the grounds upon which the impeachment was sought, constituted a good defense, and might have been interposed before the probate judge, and no fraud or collusion is shown in obtaining the judg- ment.(^) But where a judgment in probate has been obtained by fraud, the jurisdiction of a court of equity to grant relief is unques- tioned i^) A claimant is not bound to disclose a defense to his claim ('») (i) Reitzel et al, vs. Miller, 25 III., 67 ; Clark et al. vs. Hoo-le et al <.2 111.. 428. ' ^ (2) Id. (3) Mitchel vs. Mayo, 16 111., S3. (4) McCov vs. Morrow, iS 111., 519; Unknown Heirs of Laneworthy vs Baker et al., 23 111., 484. (5) Dawes vs. Shed, 15 Mass., 6. (6) Ward vs. Durham et al., 134 111., 195. (7) Rawlston vs. Wood, 15 111., 159 ; Motsino:er vs. Wolf, 16 111., 71; M?.son et al. vs. Bair, 2^2) I"-. ^94; Hopkins vs. McCan, 19 111., 113. (8) Gold et al. vs. Bailey, 44 111., 491. (9) Probst vs. Meadows, 13 111., 157. (10) Ward vs. Durham, supra. 108 CLAIMS AGAINST ESTATES. [CH. IX. c. A promissory note, execiital by a party as a gift, but not delivered in his lifetime, is not enforceable against the maker's estate. (^) And so of any other verbal gift.(^) d. Tiie charges of a physician for a post mortevi examination made on a coroner's inquest is not a proper claim against the estate of the deceased. (^) e. Since the married woman's act of 1861, a married woman may insist upon her claim for money loaned to her husband, either before or after the marriage. (*) But she must file lier claim as any other claimant. i^^) /. There must be a present debt or duty, or a demand in presenti, payable, or to be satisfied at all events in J'uturo. ^Yhere there is no subsisting debt or duty, or where the claim, if payable, or to be .satisfied at a future day, rests in a contingency, and it is uncertain whether or not any demand will a jrue, it cannot be allowed. (^) g. Where an administrator of another state had concluded his administration in that state, and upon final settlement a balance was found in his favor, the findings of that court were held res adjudi- cata in this state, in a suit between such administrator and the heirs of I he deceased.!^') h. \Vhere a claim was never presented to the deceased in his lifetime, and not presented for allowance until three years after his death, these circumstances cast suspicion upon it as a meritorious clainii") i. It is no objection to the nllowance and pnvment of ■; claim •lorainst an estate, that it h -ecuvf d by niortgasfe on real estate of tho deceased. The personalty is (he primary fund oul of ;vh\ h all claims must be paid, and it must first '.;? exhausted.^®) 25. Defrnses to cl.atms — two years' ltimitation'^. — Where no inventory is filed l.y the executor or administrator, the two (i) Blanchard vs. Williamson, 70 III., 647; Williams vs. Forbes, 114 111., 167. (2) Barnnm vs. Reed, i-,6 111., 38S. (t,) Smith vs. McLaug:hlin etal., 77 111., 596. (4) Whitford et al., vs. na,o;tjett, 84 Ill.,\44. (^) Barnard vs. Barnard, iig III., 92. (6) Tones vs. Cooper, 2 Aikins, 54; See 2 Probate Reports, 180, for brief aiilhoritips. (7) Frvrear vs. Lav/rence et al.. 5 Gil., 325. (81 O'Connor vs. O'Connor, 52 111., 316. (g) People vs. Phelps, 78 II!., 147. CH. IX ] CLAIMS ..GAINST ESTATES. 109 years' statute does not run against claims existing against the deceased.(') Where letters of administration are granted upon the estate of a deceased persou, supposed to have died intestate, and afterwards upon the discovery and probate of a will of deceased, such letters are revoked, the two years limitation will run from the date of the first letters, and it is error to order a claim, presented after the expiration of two years from the first grant of letters, to be paid generally out of the assets of the estnte;!^) bu; such a claimant is entitled to a judgment, if the claim is not otherwise barred, to be satisfied out of subsequently inventoried estate. (^) Where the judgment does not provide for its payment from assets of the estate not then inventoried, the presumption is, that the claim was exhibited within two years from the grant of letters,(*) a. When a statute of limitations begins to run, it will continue to run until it operates as a complete bar, unless there is some saving or qualification in the statute itself.i^^) The statute begins to run whenever there is a right capable of being enforced, and is not arrested from running by the death of the debtor. (^) Part ])ayment upon a b )nd, by the administrator of one of the obligors, before the statute of limitations has run against it, will preven the running of the statute as to the other obligors ('^) Where a claim for several years' labor was presented against an estate, and the statute of limitations was interposed as a defense, only such services as were rendered within five years were allowed. (^^j In the defen.se of claims against estates, it is not necessary that the statute of limitations be specially pleaded, although it should be relied on as a defense. (^) b. The filing of a claim with the clerk of the court after the adjustment day is not the commencement of a suit, and does not (i) Guy et al. vs. Gerricks, 85 111., 428. (2) Shepherd vs. Rhodes et al., 60 III., 301. ^3) Peacock vs. Haven et al., 22 111., 23; and see ante page 102. (4) People vs. Gray, 72 III., 343. (5) People vs. White, 11 111., 342. (6) Baker vs. Brown, 18 III., 91 ; \an Alstine vs. Lemons, 19 III.. 394; Thompson \s. Reed, 48 III., 118. (7) County of Vernon vs. Stewart, 64 Mo., 408. (8) Freeman vs. Freeman, 65 III., 106; Wernse vs. Hall, loi III., 42:;. (9) Thompson vs. Reed, supra; Bromwell vs. Schubert, 28 N. E. Rep I057- 7 110 CLAIMS AGAINST ESTATES. [CH. IX. arrest tlie running of the general statute of limitations which had previously begun to run, nor prevent it from afterward running upon a claim not due at the time of its presentation. (^) c. A material man, who has furnished lumber for the erection of a building, cannot enforce his lien against the estate of the owner of the building, after the expiration of six months from the time payment is due, so as to cut off the lien of other creditors who have proved their claims, where the personal estate is insufficient for their payment.(^) d. Where a joint claim was presented by certain persons against the estate of their deceased guardian, for a balance of money in his hands, more than five years after the youngest child became of mature age, the claim was held not to be barred by the five years statute, so long as an action might be brought upon the guardian's bond, to enforce a recovery of the same money. (^) Such a claim may be probated against the estate of the deceased guardian, or suit may be brought upon the bond — the ward has a choice of remedies.(*) e. It will be presumed that a debt of twenty-seven years' standing has been paid, without a plea of the statute of liniitations.(^) /. Under our statute, requiring all claims to be presented to the court for allowance, within two years from the granting of letters, it has been held, that where the intestate in her lifetime, executed a bond of indemnity, the damages depending upon a contingency which did not happen until after the lapse of two years from the granting of letters upon the obligor's estate, that the obligee's claim did not accrue within the two years, and no suit could be instituted nnon the bond within that time, and, consequently, the claim was bar >'l, except as to future discovered propeity.(^) In Payson vs Hiidduck,C) decided in the U. S. court for the Nortlieru District of Illinois, where, by bill in equity, it was sought to recover ou a similar (i) Reitzel etal.vs. Miller, 25 111., 67. (2) Rietz et al. vs. Coyer et al., 83 111., 29. (3) Scheel et al. vs. Eidman et al., 77 111., 301. (4) Tracey et al. vs. Hadden, 78 III., 30. (5) Heirs of Langworthy vs. Baker, 23 111., 484. (6) Stone vs. Clarke's Admr., 40 111., 4x1. (7) II Legal News, 57; Duggar vs. Oglesby, 99 111., 405; People vs. Brooks, 123 111., 246. CH. IX.] CLAIMS AGAINST ESTATES. Ill claim against the widow and lieirs of a deceased obligor, Blodgett, J., held that, in such a case, a recovery could be had against distrib- utees under the 12th section of the statute of frauds, notwithstand- ing no claim had been, or could have been presented in probate. g. When the administrator is made a party to a suit to foreclose a mortgage made by intestate, and on sale of the premises, a sum insufficient to pay the debt is realized, it is error to decree the pay- ment of the residue by the administrator in due course of adminis- tration — two years having elapsed after the grant of letters and before the filing of tiie bill (^) In such case, the decree should have directed the payment of the deficiency out of assets subsequently discovered. (^) Whether or not an acknowledgment by a personal representa- tive, of a debt due from the deceased, which is barred by the statute of limitations, will take it out of the statute, has been the subject of much discussion, and of contradictory decisions. The weight of authority justifies the conclusion, that no recognition of the debt or promise to pay by the administrator or executor of an estate, will relieve the claim of the piesuuiptlon of payiueut imposed by the statute of limitations. (^) 26. Practice. — A claimant cannot recover judgment for more than the amount claimed. (*) a. The prosecution of a claim against an estate is not to be governed by all the technical rules which apply to a suit at law \^) hence, where a claim was docketed and a judgment rendered against "the estate of J. S., deceased," without naming the administrator, the proceeding was held good in the supreme court. (^) 6. A judgment against the deceased, which is not a lien upon his property, can only be collected as other claims in due course of administration. C') c. Claims should be proven as alleged, and carefully scrutinized by juries. (^) d. The allowance of a claim against an estate is a ludo-raent. (i) Mulvey et al. vs. Johnson, 90 III., 457. (2) Id. (3) Fritz vs. Thomas, i Wharton, 66; Peck vs Botsford, 7 Conn., 172. (4) Russell vs. Hubbard et al., 59 111., 335. (5) Scheel et al. vs. Kidman, 6S 111., ig^. (6) Id.; West vs. Krebaum, 88 111., 263. (7) Clingman et al. vs. Hopkie, 78 111., 152. (8) Brock et al. vs. Slaten, 82 111., 283; Lill vs. Brant, i 111. Ap., 266. 112 CLAIMS AGAINST ESTATES. [CH. IX. which draws six per cent, interest, without regard to what interest the debt drew (^) e. No particular form is required in rendering judgment in probate. (^) /. In a suit brought by an administrator against a debtor to the estate, the latter cannot set off a claim for money which the debtor has paid as surety of deceased after his death.(^) g. Where a judgment is revived by scire /acfas against an admin- istrator, the judgment should direct its payment in due course of administration, and it is error to award execution. (*) h. On a plea of jplene administravit, the burden of proof lies on the defendant. (^) i. Where a claim was presented to the county court and allowed against an estate, without notice to the personal representative, as required by statute, and without an appearance by the personal representative, the court will have no jurisdiction, and any order made under such circumstances will be a nullity. (®j But it is other- wise where a claim is filed on or before the day of adjustment, and long after that term is allowed. The record failing to show the pres- ence, of the administrator, or objection on his part, it will, in the absence of proof to the contrary, be presumed the case M^as regularly continued from term to term.^'^) j. A debtor, after the death of his creditor, cannot purchase outstanding- claims against the deceased, and offset the same against his liabilities to the estate, to the prejudice of other claimants where the estate proves insolvent. (^) k. An administrator is not coni|)elled to offset a demand of the deceased against a claim presented, but may maintain a separate suit therefor.(^) I. Where a writ of attachment is levied upon the lands of one (i) Wheeler vs. Dawson, 63 111., 54; Mitchell vs. Mayo, 16 111., 83. (2) Johnson vs. Gillelt, 52 III., 35S. (3) Granger vs. Granger, 6 Ohio, 35 ; Walker vs. McKay, 2 Met. (Ky.), 294; Harding vs. Shepard, 107 111., 264. (4) Turney et al. vs. Young, 22 111., 253. (5) Matt vs. Robbin et al., i Johnson's cases, 276. (6) Hales vs. Holland, 92 111., 494. (7) Ward vs. Durham. 134 111., 195; McCall vs. Lee, 120 111., 261. (8) Mack vs. Woodruff, 87 III., 570. (9) Morton vs. Bailey et al., i Scam., 213. CH. IX.] CLAIMS AGAINST ESIATKS. 118 partner and lie dies, no levy being made as to tlie other, the suit abates as to both.(^) m. The plea of plene administravit is not a good plea to an action brought against an administrator upon a debt due by his intestate, (^j n. Although a claim may be barred by the two year limitation, it may be plead as an offset to a suit against the holder by the administrator for money due from such claimant to the estate. (^) 0. A judgment against an estate is not a specific lien to be enforced by execution against the real and personal property of the deceased in the hands of the administrator ;( ) and such a judgment is only prima facie evidence of the existence of the debt as to the heir. * p. A claim allowed an administrator for money jiaid for the estate becomes an equitable lien on real estate, and on bill for dower and partition the widow, who was administrator, was held entitled to a decree for payment of such tilaim out of the proceeds of the sale.(®) q. The statute does not require written pleadings where a claim is presented for allowance in the county court, and, if an appeal is taken from the judgment to the circuit court, the trial is de novo and no written pleadings are there necessary ('^j Amendments may be allowed as in other cases. (^) 27. Changk of venue. — In all cnses or matters pending in the county court, where the judge of that court shall be interested in the same, or is a material and necessary witness, the case shall be transmitted to the circuit court of the proper county, and there determined as in the county court; and the papers, with the order or judgment of the circuit court thereon, shall be duly certified and (i) Ballance vs. Samuel et al., 3 Scam.. 380. (2) Judy et al. vs. Kelley et al., 11 III.. 211. (3) Peacock vs. Haven et al. 22 111., 23. (4) Granjang vs. Merkle, 22 III., 250; Stillman et al. v^s. Young et al., 16 111., 318. (5) Stone vs. Wood. 16 111.. 177; Mason et al. vs. Bair, 33 111., 194; Hop- kins et al. vs. McCan, 19 111., 113. (6) Wheeler vs. Dawson, 63 III., 55. (7) Thorp vs. Goewey, 85 111., 612. (8) McCall vs. Lee, 120 111., 261. 114 CLAIMS AGAINST ESTATES. [CH. IX filed in the county court, and have the same effect as if determined in the county court. (^) 28. Allowance of a claim a judgment. — The order of the county court allowing the debt of a creditor against the estate, is a judgment of a court of competent jurisdiction in favor of the creditor against the administrator, and, as between those parties, it is necessarily conclusive, till reversed by a superior tribunal, unless impeached for fraud.(^) The converse of this would be equally true, and where a claim is disallowed by the court, that order becomes as conclusive between the claimant and the executor or administrator, as any other judgment. Such judgments, as before seen, are not conclusive against the heir.(^) 29. Demands of executor, etc. — When an executor or administrator has a demand against his testator or intestate's estate, he shall file his demand as other persons; and the court shall appoint some discreet person to appear and defend for the estate, and, upon the hearing, the court or jury shall allow such demand, or such part thereof as is legally established, or reject the same, as shall appear just. Should any executor or administrator appeal in such case, the court shall appoint some person to defend as aforesaid. (*) An administrator or executor having a claim against the estate under his charge, accruing in the lifetime of the deceased, may prove the same under this statute, and subject the real estate of the deceased to sale for its satisfaction, the same as if the claim was due to another.(®) The next of kin or other person interested may set up the statute of limitations as a bar to the ndministrator's private account. f^) An administrator pro tem., appo'nted to defend against a claim of the executor or administrator, is entitled to fair and reasonable allow- ance for his services in conducting such defense.C') 30. Insolvent estatpi — If, after the expiration of two years (0 Hurd's R. S., Chap. 3, ? 69. (2) Stone at al. vs. Wood, 16 111., 177 ; Ralston et al. vs. Wood, 15 111., 159; Housh vs. People, 66 III, 178 ; Ward vs. Durham, 134 111., 195; Finley vs. Carrothers, 9 Texas, 517. (3) Ante page 113. . (4) Hurd's R. S., Chap. 3, ? 72. Admniistrators pro tem. may appeal : Bassett vs. Noble, 15 111. Ap..3^o. (5) Johnson vs. Gillett, 52 111., 35S. (6) Treat vs. Fortune, 2 Brad., 116; Batson vs. Murrall, 10 Humphreys, 301. (7) Clark vs. Knox, 70 Ala., 607. CH. IX.] CLAIMS AGAINST ESTATES. 115 from the time administration is granted on an estate, such estate is found to be insolvent, it shall be so entered of record by the county court, and such order [being] made, no action shall be maintained against the executor or administrator of such estate, except at the costs of the party suing ; but persons entitled thereto shall receive their proportions- of such estate as herein provided. (*) 31. Fees not to be charged. — In all cases, in counties of the first and second class, where, by the death of any person, there shall be left surviving such person a widow or children, resident of this state, who are entitled out of said estate to a widow's or child's award, and the entire estate, real and personal, o" such deceased person shall not exceed one thousand dollars, and in case of any minor whose estate, real and personal, does not exceed the sum of five hundred dollars, and whose father is dead, and in all cases of any idiot, insane person, lunatic or distracted person, drunkard or spend- thrift, when such person has a wife or infant child dependent on such person for support, and the entire estate of such person shall not exceed the sum of one thousand dollars, the county or probate judge shall, by an order to be entered of record, remit and release to such estate all of the county or probate clerk's costs now provided for by law.(^) (i) Hurd's R. S., Chap. 3, ? 128. (2) Hurd's R. S., Chap. 54, § 66. 116 CLASSIFICATION AND PAYMENT OF DEBTS. [CH. X. CHAPTER X. CLASSIFICATION AND PAYMENT OF DEBTS. 1. Order of payment at common law. 2. By statute. 3. Order of classification. - a. Order not specifying. .; 4. Conflict of statutes. 1 5. Preferred claims. 6. Classification may be changed. . No preference among clciiiiKinLS of snme cla"^?;. 8. Payment of claims before allowance. 9. Payment by mistake. 1. Classification at the common law. — At the common law and by the laws of some of the states, the debts of a decedent were, and are classified and paid more with regard to the manner of con- tracting them, than with regard to their meritorious character. These are some of the reqnirements : In payment of debts, he (the administrator) must observe the rules of priority : otherwise, on deficiency of assets, if he pays tho^^e of a lower degree first, he must answer those of a higher out of his own estate. And, first, he may pay all funeral charges and expense of proving the will, and the like. Secondly, debts due to the king on record or specialty. Thirdly, such debts as are by particular statutes to be preferred to all others : as the forfeitures for not burying in woolen, money due upon poor rates, for letters to the post office, and some others. Fourthly, debts of record ; as judg- ments, statutes and recognizances. Fifthly, debts due on special contracts ; as for rent, or upon bonds, covenants and the like, under seal. Lastly, debts on simple contracts, viz. : uj^on notes unsealed and verbal promiscs.(') 2. By statute. — Our statute distributes the assets of a decedent upon more humane principles. By it debts of record, debts due upon bonds, covenants, and the like, and debts due upon simple contracts, have equal claims for payment, where all are alike unsecured.(^) The distribution of the effects of deceased persons, is controlled by the law in force at the time of the death of the testator or intes- (i) Wentworth on Executors, 261 ; 2 Blackstone's Commentaries, 511 ; 2 Kent's Com., 416. (2) Paschall vs. Hailman, 4 Oilman, 285. CH. X.] CLASSIFICATION AND PAYMKNT OF DEBTS. 117 tate, and not by that in force at the time tlie debt was contracted.") 3. Dkmands CLASSIFIED. — All demands against the estate ol' any testator or intestate shall be divided into classes, in manner following, to-wit : First — Fu neral expenses. Second — The widow's award, if there is a wiaow; or cliildi-en, if there are children and no widow. Third — Expenses attending the last illness, not including physi- cian's bill. Fourth — Debts due the common school or township fund. Fifth — All expenses of proving the will, and taking out letters testamentary or of administration, and settlement of the estate, and the physician's bill in the last illness of the deceased. Sixth — Where the decedent has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for; the wages due a servant or laborer for labor performed for decedent within six months previous to death. Seventh — All other debts and demands of whatsoever kind, without regard to quality or dignity, which shall be exhibited to the court within two years from the granting of letters as aforesaid, and all demands not exhibited within two years as aforesaid, shall be forever barred, unless the creditors shall find other estate of the deceased, not inventoried or accounted for by the executor or administrator, in which case their claims shall be paid jo?^o rata out of such subsequently discovered estate, saving, however, to femes covert, infants, persons of unsound mind, or imprisoned, or without the United States in the employment of the United States or of this state, the term of two years after their respective disabilities are removed, to exhibit th^'ir claims. (^) All claims against estates, when allowed by the county court, shall be classed and ])aid by the executor or administrator, in the manner provided in this act, commencing with the first class ; and when the estate is insufficient to pay the whole of the demands, the demands in any one class shall be paid, pro rata, whether the same are due by judgment, writing obligatory, or otherwise, except as otherwise provided. (^) The circuit court may also classify claims allowed by it.!*) (i) Paschall vs. Hailman, 4 Gil., 285 ; Woodworth vs. Paine, Breese, 294. (2) Kurd's R.S., Chap. 3, i^ 70; Dunlap et al. vs. McGhee etal., 98 111., 267 (3) Kurd's R. .S.. Chan. 3. <1 7:. (4) Darling vs. McDonald, loi 111., 370; McCall vs. Lee, 120 111., 26I; Howell vs Moores, 127 111., 67. 118 CLASSIFICATION AND PAYMENT OF DEBTS. [CH. X. a. Wlien the order of payment made by the court does not provide that it is to be paid from assets not tJien inventoried, the presumption is, the claim was filed within two years from the grant of administration. (^) 4, Conflict of statutes. — Section 60, of the school law, gives debts due the school fund from estates, a preference over all debts, except funeral and other expenses attending the last sicknci-s, not including physician's bill.(^) As the award is to all intents a debt due from the estate, it would seem that there exists a conflict between the two statutes, to be reconciled by the courts. A conflict between the laws of the domicil of the deceased and the laws of the state where his personal assets may at the time chance to be situated, concerning distribution among creditors, in cases of ancillary administration, has often arisen and caused no little difficulty. As we have seen, different laws prevail in differ- ent jurisdictions, upon the matter of distribution among creditors, and while the law of the domicil may disregard the privileged priority given to bond debts, judgments, etc., as does the law of Illinois, the law prevailing at the place where ancillary administra- tion is had, may adhere to those distinctions of the common law. In such cases, the question often arises : AVliat rule is to govern in the distribution, the law of the domicil, or the law prevailing at the place of ancillary administration ? The established rule now is, that the administration of the assets of a deceased person is to be governed altogether by the law of the country where the executor or administrator acts, and from which he derives his authority to collect them, and not by that of the domicil of the deceased. (^) 5. Preferred claims. — Money in the hands of a guardian is, by statute, made a preferred claim of the third (6th) class, as is money which came to the hands of the deceased from his wife, who was guard i an. (^) The clause of the statute relating to the classification of claims against estates of deceased persons, and which gives a preference in cases where the deceased has " received money in trust for any (i) People vs. Gay, 72 111., 343. (2) Hurd's R. S., Chap. 122, ^ 60; House vs. Trustees of Schools, 83 III., :J-9 (3') Story's Conflict of Laws, | 524; Story's Eq. Juris., I 585; Young vs. Witteiimyre, 123 111., 303. (4) Cruce vs. Crucv ^t al., 21 111., 46; Da\ i.s vs. Harkness, i Gil., 173. CH. X.] CLASSIFICATION AND PAYMENT OF DEBTS. 119 purpose/' does not necessarily extend to and embrace every kind of a trust. It does not embrace trusts implied by law;(^) nor does it embrace a case where a party voluntarily places money in the hands of another to control and mana^-e for him as his agent.(^) A judgment creditor having no Hen at the time of the death of the deceased, has no preference in the payment of claims ;(^) but where there is an execution in the hands of the officer at the time of the death of the defendant, the lien thereby given upon the goods of the defendant, is not affected by the death. (*) The riling of a creditor's bill gives a lieu upon all the property of the judgment debtor owned at the time, from the date of the service of the summons upon the defendant, and this lien is not defeated by the death of the defeudaut.(^) 6. Order classifying may be changed at a subsequent TERM. — Where a claim has been allowed against an estate and classed, the court may, at a subsequent time, by its order, change the claim to another class, if it ap[)ear that it was placed in the wrong claSs.(^) This applies to both the county and circuit courts.C') 7. KO PREFERENCE AMONG CLAIMANTS OF SAME CLASS. The provisions of the statute requiring a classification of the claims allowed against estates- of deceased persons and their payment in such classes, without preference as to creditors of the same class, arc mandatory, and binding upon the courts. In the distribution of the assets of an estate, there can lawfully be no preference of one cred- itor over another of the same class. So, where one creditor, by contesting the final account of an executor, increases the assets liable to distribution, this will give him no preference over other creditors of the same class, as to increased assets-^*) 8. Pay^ment before allowance. — The county court shall make an entry of all demands against estates, classing the same as above provided, and file and preserve the papers belonging to the (i) Wilson et al. vs. Kirby, 88 111., 566; Kirby vs. Wilson et al., 98 (2) Weir vs. Gand, 88 111., 490. [111., 240. (3) Turney vs. Gates, 12 111., 141. (4) Dodge vs. Mack, 22 111., 93. K) National Bank vs. Gageet al., 93 111., 172; Cole vs. Marple et al., 98 (6) Weir vs. Gand, supra. [111., 58. (7) Darling vs. McDonald, loi 111., 370 ; McCall vs. Lee, 120 III., 261. (8) Colton vs. Field et al., 131 III., 398; People vs. Phelps, 78 III., 147. 120 CLASSIFICATION AND PAYMENT OF DEBTS. [CH. X. same. If an executor or administrator pays a claim before the same is allowed as aforesaid, said court shall require such executor or administrator to establish the validity of such claim by the like evidence as is required in other cases, before the same is classed, and he credited therewith. (^) This section of the statute permits the payment of debts con- tracted by the deceased by the administrator, without first being allowed by the court ; but any such payments are made at the peril of the administrator, who assumes the burden of showing to the court, on presentation of his account, and vouchers of payment, that such claims were liabilities against the estate. Payment can not be made after the expiration of two years from the date of letters, and thus relieve the debt from the bar imposed by the statute; nor can debts be paid in full at the expense of other claimants, who have presented their claims and had them allowed. If the administrator has paid in full, and the assets of the estate are insufficient for the payment in full of claims of the same class, the court will only allow for so much as might have beei receiv mI upon a proper (listril)ution ;(^) and this, whethpr fho acco nt of the a 'm'nistrator showing the payment of debts not allowed by the cuiut, with proof of their genuineness, is presented within two years from the date of letters or otherwise. The presentation to and payment by the administrator, within the period of two years, prevents the opera- tion of the bar of the two years statute of limitation, not only as to the claimant, bu as to tlie adniii)i.-itrator.(*) 9. Payment by mistake — recovery. — If an ndministr ^or pays a claim against the estate of his intestate, in the honest belief that the estate is solvent, and the estate is subsequently declared insolvent, and after due proceedings a dividend is declared from all the available assets, among claimants of the same class as those paid in full, the administrator may sue for and recover back the excess so paid above the amount of the dividend, if not barred by the .statute of limitations, which will begin to run against the claim from the date when the dividend was ordered.^) So, also, should (i) Hurd's R. S., Chap. 3, ? 73. (2) People vs. Phelps, 78 111., 148. (3) Millard vs. Harris, 119 III, 1S5; Walkervs. Diehl, 79 111., 474; McNeil vs. McNeil. 36 Ala., 109. (4) Richards vs. Nightingale, 9 Allen, 149; Wolf vs. Beaird, 123 111., 585. CH. X.j CLASSIFICATION AND PAYMENT OF DEBTS. 121 the administrator, anticipatinj^ an order of distribution among heirs, pay to one a sum in excess of what the final order of distribution showed to be his due, tlie administrator may, by the proper action, recover the excess from such Jieir.i^^j (ij Slokcs vi. Guodykuontz, 26 N. E. Reports, 391. (111.) 122 ACCOUNTING AND SETTLEMENT. [CH. XI. CHAPTER XL ACCOUNTING AND SETTLEMENT 1. nccounts — when to be made. 2. Partial distributions. 3. Form of account. 4. Account may be required at any tin.v,. 5. Interest upon balances due to the administrator. 6. Assets to be charged. . 7. Administrator, etc., to be allowed for attorneys' fees. 8. Contingent fees not allowed. 9. Expenses allowed. 10. For board of minors. 11. Costs of administration must be paid before distributiot 12. Order approving accounts conclusive. 13. Final settlement. 14. Effect on claims. 15. Chancery jurisdiction to effect settlements and open the same. 16. Settlements to be enforced by county court. 17. Ten per cent, interest. 18. When account should be rejected. 19. Account fpr monument. 20. Heirs not bound by judgments paid. 21. Order of approval several as to each item of acuount. 22. Appeal from an order rejecting. 23. Errors in account not evidence ot fraud. 24. Failure to pay over as ordered. 25. Enforcement of orders by imprisonment. 26. Duration of imprisonment. 27. .Suit cannot be mainta'ned until order of distribution. 28. Payment of legacies. 29. Bond by legatees. a. Liability thereunder. 30. When bond should be taken. 31. Citation and proceedings thereunder. 32. Court no power to render a money judgment. 33. Refunding by legatees. 34. What will bar claim for refunding. 35. Suits between joint executors and administrators. 36. Sureties not liable. 37. One administrator or executor may have citation against his associa 38. Disposition of unclaimed estate. C f. Xr.] ACCOUNTING AND SETTLEMENT. 123 39. To be deposited. 40. How obtained by claimant. 41. Compensation of executors, etc. 42. Additional allowances. 43. Equitable princi| les io govern accountirg. 1. Accounts to be made. — All executors and ndministrators shall exhibit accounts of their administration for settlement, to the county court from which the letters testamentary or of administra- tion 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 montlis 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. (^) 2. Distribution. — 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 administrator, and the whole amount of debts established against such estate ; and if there is not sufficient to pay the whole debts, the moneys afore- said shall be apportioned among the several creditors j3?'o 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 apportionment. And the court, upon every settlement, shall proceed in like manner until all the debts are paid, or the assets exhausted. (^) It is the duty of the county court to enforce annual settlements by executors and administrators, and to declare dividends among heirs or creditors, as the case may justify.(^) 3. Form of accounting. — The followino; form of account, with such variations as may be fotmd necessary in each individual case, may be used for the first account current made to the court by an executor or administrator : (i) Kurd's R. S., Chap. 3, ? iir. (3) Schofield's Estate, 99 111., 513. (2) Hurd's R. S., Chap. 3, ^ 112. 124 ACCOUNTING AND SETTLEMENT. [CH. XI. A B, Administrator, etc., In account with the Estate of C D, deceased. 1882. Dr. Feb. I. To amount of personal property as shown by appraise- ment bill 51000 GO Feb. I. To cash on hand at decease 50000 Feb. I. To inventory of notes and accounts 1000 00 Feb. I. To increase on sale* 50 00 Total $ 2550 Contra. , June 14, 1882. By cash paid J S, Co. Clerk, in part of costs I5 00 June 14, " By cash pd. 111. Printing Co. for adjustment notice- 5 00 June 14, " By cash pd. same for sale bills 500 June 14, " By cash pd. E F, auctioneer 3 00 June 14, " By cash pd. D L, clerk at sale 200 June 14, " By ca.sh pd. Appraisers 450 June 14, " By property taken by widow 650 00 June 14, " By cash bal. due widow 35000 June 14, " By cash pd. for care of stock 10 00 Dec. 25, " By amount to balance 1515 50 Total ; I2550 00 4. Account may be required at any time. — An adminis- trator or executor may be required to malce either a full or partial account and distribution among the heirs at any time wlienever it shall appear that there are assets in excess of tiie amount required to satisfy all demands against the estate. The .statute requiring an accounting at the first term after the expiration of a year from the grant of letters, does not exclude the court from the exercise of power to compel an earlier exhibit.(^) He has no right to hold (i) Reyn')lds vs. People, 55 111., 328. *NoTE. — This amount is found by deducting the amount of personal property left in the hands of the adiniuistrator after setting otf the widow's selection, from the total amount of the pubUcand private sale bills. Should a comparison of t)ie-ie su us show a loss, the amount of such loss will be carried to the credit side of the account as " loss on sale." Any subsequent account is made by cliargiu^ upon the debtor side the balance shown in the last account, together with the amount of any new iuveutory iiled, or any interest collected which was not computed at the time of filing the first inventory of notes and accounts, and so accounted for in the first account. The balance shown, of course includes all the assets of the estate, wheth- er good or bad, and they may be so carried, until the administrator is ready to make final settle- ment, and have a distribution declared among creditorspr heirs, of the net assets, when, prepar- atory to such a step, a petition may be filed, asking for a credit on account of any notes or accounts due the deceased, which have been inventoried as asuets, and form a part of the balance shown to be in the hands of the administrator, under the provisions of Section 82, a/t(e. At no time should an executor or administrator charge himself in his account current, with separate sums of money paid to him by creditors of the estate. Tuese items form a part of the inventory of notes and accounts, and are properly charged on the debtor side of the account in the third item above charged. To charge each item separately, unnecessarily complicates the account, and leaves the remainder of this class of assets unacouuted for. The account should be accompanied by the receipts taken upon payment of claims of what- ever class. If, at any time, it is deemed expedient to declare a partial dividend among creditors or heirs, the person rendering the account, may append a statement, showing the uncollected assets in lliB bands, from which the cash in his hands subject to distribution, may be ascertained. CH. Xr.] ACCOUNTING AND SETTLEMENT. 125 raouey of an estate in his hands over and above what is necessary for the payment of debts, and deprive tlie heirs of its use, and he may be compelled to make a partial distribution within one year from the grant of letters. (') 5. Interest upon balances. — Where an account shows a balance due to the administrator, for amounts paid out by him in excess of assets which niave come to his hands, he is entitled to interest thereon, until the amount is repaid to him.(^) And where an executor held moneys without investing them and without rendering any account, for several years, he was charged interest at six per ceut., although he had put the money to no use whatever.(^) Use of money by the administrator, may be inferred from long delay in settling his account, if unexplained. (*) 6. Assets. — Money paid to an executor or administrator, by the owners of real estate liable to be sold for the payment of debts, legacies and charges, in order to prevent such sale, is assets of the estate, to be accounted for by him, and paid as assets. (^) 7. Attorneys' fees. — An administrator or executor is entitled to the service and assistance of counsel in the settlement of the estate, whether his accounts and vouchers are litigated or not.^^) Should loss accrue to the estate, by reason of not having taken the precaution to employ such, the administrator would, undoubtedly, have to answer for it. But an administrator can not himself act as attorney and charge and receive compensation therefor. If he chooses to exercise his professional skill as a lawyer in the business of the estate, that must be considered a gratuity.C^) The employ- ment of an attorney by an administrator to attend to business of the estate represented by him, does not create a pe;i'sonal liability against the administrator, but may be enforced against the estate, for which the services are rendered. (^) (i) Curts vs. Brooks, 71 111., 125. (2) Wheeler vs. Dawson, 63 111., 54; Liddell vs. McVickar, 6 Halstead, 44; (3) Hough vs. Harvey, 71 111., 72; Dunscomb vs. Dunscomb i Johns. Ch., 508; Field et al. vs. Colton, 7 111. Ap., 379. (4) Hasler vs. Hasler, i I5rad., 248. (5) Fay vs. Taylor, 2 Gray, 154. (6) Greene vs. Gn'mshaw, 11 111., 3S9,; Sniyley vs. Reese, 53 Ala., 89; Bendall vs Bendall, 24 Ala., 295. (7) Willard vs. Bassett, 27 111., 37; Hough vs. Harvey, Supra. (8) Greene vs. Grinishavv, supra. Contra, see L'arker vs. Kunkel, 14 Legal News, 175. 8 126 ACCOUNTING AND SETTLEMENT. [CH. XI. 8. Attorneys' fees — contingent fee. — There is no question of the power of an administrator to sue for the recovery of any property of the estate, and, as incidental thereto, he is authorized to retiiin and employ an attorney, whose fees must be fixed by the court, and allowed to the administrator as a part of the expenses of administration; but the administrator has no power to make a contract with an attorney binding upon the estate, for the transfer or conveyance of an interest in any of the assets of the estate, for the payment of a contingent fee out of the assets of the estate. To give to administrators authority to pay an attorney in property of the estate for services rendered the estate, would be virtually to surrender to them the unrestricted management and disposal of the entire property of the estates they represent.(^) Nor can an executor give to an attorney or agent employed by him, a lien upon a bond and mortgage of the estate, for services rendered or expenses incur- red, in collecting the interest thereon.(^) 9. Expenses. — An administrator should only be allowed for expendituies made in em^^loying services which he is not competent to render. (') 10. For board of minors. — Where an executor, not being their guardian, and having no authority in the will, paid the board of the minor children of the testator, his action was approved and account allowed. ('') 11. Costs. — It should appear that all costs of administration have been paid by the administrator, before an order of distribution is made to creditors.(^) 12. Res adjudicata. — The adjudication of a county court upon a final account of an executor or administrator, like any other judgment of a court, is binding upon all parties affected thereby, until set aside by appeal from the order or on bill to impeach it. It is final and conchisive in all collateral proceedings, and can not be impeached, exccp for fraud. (^) (i) In the matter of the Estate of Page, (Sup. Court of Cal.) 13 Legal (2) McMahon vs. Allen, 4 E. D. Smith, 519. [News, 270. (3) Teague vs. Dendy, 2 McCord Ch., 207. (4) John.ston vs. Maples et al., 49 III, loi. (5) Peuple vs. Hunter et al., 89 111., 392. (6) Ralston vs. Woud, 15 111., 159; Housh vs. People, 66 III., 17S; Am- mons vs. People, 11 III., 6; Wheeler vs. Dawson, 63 111., 54; Short et al. vs. J(ilinson. 25 1:1., 489; Dicksf.n et al. vs. Hitt, 98 111., 300; Parchervs. Russell. II Cush., 107; Sever vs. Russell, 4 Cush.,513; Fryrear vs. Lawrence, 5 Gil., 325; Wadswurth vs. McConnell, icu 11!.. 869; Wolf vs. Beaird, 123 III., 585. CH. Xr.] ACCOUNTING AND SETTLEMENT. 127 The reasoning upon which the cases cited above were decided would seem to apply with the same force to the judgment of the court upon any interlocutory account a])proved by the court,(/) where the j)arties in interest appear and defend. Items not charged or credited in an account, wlicn they might have been, are not, for that reason, to be excluded from any future account.(^) And, so it was held, that in the settlement of an account by an administrator, in which he does not charge himself with interest on money received by him, does not preclude a subsequent inquiry as to the propriety of charging him with interest, if the question of interest was not a subject of examination, when the account was passed. But if, when the account was settled, the court inquired into tlie liability to pay interest, and decided against it, that decision, unless obtained by fraud, is conclusive against the liability. (■■) So, also, of a fact alleged in connection with the account.(*j The decree of the court of probate, duly allowing the final account of an administrator, cannot be impeached in an action at law against the administrator. Any objections to such an account should be raised by appeal. (^) Tiie language of the statute quoted above (Section 111, ante), and the decisions referred to in the margin, justify the conclusion that the adjudications of the court upon all accounts, interlocutory as well as final, are conclusive upon all parties in all collateral proceedings, until reversed on aj^peal or impeached for fraud ; and further, that while the adjudication upon the final account, notice having been given as required by the court, is final after the adjournment of the term, any interlocutory account may be opened, notice having been given, at any time before the approval of the final account, and the settlement of the estate. But where an order of distribution of a residue of assets left in the hands of an administrator after all debts and charges were paid, was made, without any notice to the heirs, in which an injustice was done, it was held, that at a subsequent term, notice having been given to the administrator, and it appearing that nothing had been done under the order, it was proper for the county court to vacate such order, and that the heirs were not bound by an order (i) Stiles vs. Burch, 5 P'aige, 132. (2) Lidell vs. McVickar, 6 Halstead, 44. (3) Saxton vs. Chamberlain, 6 Pick., 422. (4) Long; vs. Long, 132 111., 72. (5) Parcher vs. Bussell, 11 Cush., 107. ' . 128 ACCOUNTING AND SETTLEMENT. [CH. XI. of distribution made in their absence and without notice to them.(^)* 13. Final settlement. — ^Where an administrator received the title to real estate in payment of a debt due the intestate, and conveyed the same to the heirs, it was held that the assets were properly accounted for.(^) An order declaring an estate finally settled and the administrator discharged, unless cause to the contrary be shown within thirty days, will be considered as final, where no cause is shown within that period. (^) An order discharging an administrator is a nullity until the estate is fully settled according to law.(*) After a final settlement has been made, it will be presumed he has paid out all the assets in his hands, upon claims and to distrib- utees ^^) Ad iiinistra:ion is presumed to be cU sed at the end of the period fixed by hw . '') Claims of an administrator against an estate should be closely scrutinized by the court.C') Where a final settlement is in fact made, but not entered of record, the county court is authorized, upon ])roper proof, to enter and spread of record, nu7}c pro tunc, the preliminary and final settle- ment of such administrator. ^'') , 14. Effect of final settlement as to claims. — The approval of a final account of distribution and an order discharging the administrator, are inoperative to affect the rights of creditors. Although such final drders may have been entered, and the admin- (i) Long vs. Thompson, 6o III., 27. (2) Greer et al. vs. Walker, 42 111., 401. (3) Bucher tA al. vs. Bucher, 86 111., 377. (4) Blanchard vs. Williamson, 70 111., 647. (5) Hales et al. v_s. Holland, 92 111., 494. (6) Easterling vs. Blythe, 7 Texas, 210. (7) Johnson vs. Gillett, 52 111., 358. (8) Frame vs. Frame etal., 16 111., 155. ♦Note. — The case of Wheeler vs. Dawson, cited above, where an order of the county court was hold res adjiidicala, auJ not susceptible of being inquired into in a collateral proceeding, Beoms to be identical with the case of Long vs. Thoniftson, except that in the latter no notice was given, while iu tlie former, tlie statement of the case is silent upon the m itter of notice, and except, also, that the order in the cas>< of Wheeler vs. Dawson, was in furtherance of the right, while iu tlie case of Long vs. Thompson, au appareut injustice had been done ttie heirs. In the latter case, over three years had expired after tne order and before the motion was made to set it aside. The motiou to vacate the ordjr was not a collateral proceeding; but the order not having been in any matter carried out, and no rights having accrued uuder it, it was held to be yet in the hands of the court. How far th-j latter case would have been held res adjudicata, iu a pro- ceeding strictly collateral, is dilKcult to determine from the decisions. In the matter of Selletvs' Aiipiiil, betore the supreiiiL- court of Couiiectiuct, 10 Am. Law Keg., 708, where an executor's final nport showed certaiu sums of money and articles of jiersonal property iu his hauds for distribu- tiou to the residuary leg.Hees, it. was lie.ld, iu a proceediug before the court of probate, to compel liim to turn the property over to the legatees, the executor might show iu excuse of his failure to do so, th.it certaiu of the property had been lost, and certain other taken from him by a para- mount title. CH. Xr.] ACCOUNTING ANT) SETTI.KMENT. 129 istrator fully flischargcd from all his duties as to matters embraced in former accounts, yet a creditor may present his claim and have it allowed, upon taking the proper steps, at any time before it is barred by the general statute of limitations. Upon the discovery of assets not before then invgntoried, the discharged administrator may be called again to administer and distril)ute the same, notwith- standing his final discharge. It would be otherwise, in case of a resignation or removal. (^) 15. Chancery jurisdiction. — Where there arc conflicting and intricate interests to be adjusted, a bill in chancery is the proper proceeding for effecting the final settlement of an estate; if, however, such a case is heard by a judge in probate, he should proceed as though a bill had been filed and he was sitting as a chancellor.(^) Before a court of equity will set aside as fraudulent or illegal a settlement of the accounts of an administrator made more than sixteen years before the filing of the bill, and approved by the court, it will require clear proof of the alleged fraud or illegality. (^) A court of equity will not entertain a bill to impeach a final settle- ment for mere errors in settlement — such as the allowance by the court of too large compensation, or the failure to account for assets with which the administrator is charged — they being errors which should be corrected by appeal from the order approving the report. The j)rinciple of res adjudicata applies to such settlements as against attacks through bills in chancery.(*) Where an administrator, after settlement of an estate and the payment of the balance in his hands to the heirs, is compelled to pay a new claim unknown to him, within two years after the grant of letters, he or his executors may maintain a bill in equity against such heirs, to reimburse him or his estate for the sum so paid, although no refunding bond was taken. (^) 16. Settlements enforced, — The county courts of this state shall enforce the settlements of estates within the time prescribed (i) Diversey vs. Johnson, 93 111., 547 ; Blanchard vs. Williamson, 70 111., 647; Cuthri8:ht vs. Stanford, Si 111., 240; Sutherland vs. Harrison et al., 86 111., 363 ; 2 Redfield on Wills, 411. (2) Heward vs. Slagle et al., 52 111., 336; Russell et al. vs. Madden, 95 111., 485. (3) People vs. Lott, 36 111., 447. (4) Dickson et al. vs. Hitt, 98 111., 300. (5) Cuthright vs. Stanford et al., sn/y/a ; Diversey vs. Johnson, supra; Turner vs. Egerton, i Gill & Johnson, 430. ]30 ACCOUNTING AND SETTLEMENT. [CH. XI. 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 sheriif of the county where the executor or administrator resides, or may- be found, reipiiring 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 adminis- trator foils 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 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 admin- istration, 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.(^) 17. Ten ter cent, interest. — Where an administrator, by his re[)ort, made more than two years after the grant of letters, showed a certain amount in his hands, and no debts remained unpaid, it was held, as it was his duty to have procured an order of distribution, and paid out the same, he was properly chargeable with ten per cent, interest after two years and six months from the date of his letters. In no case should administrators be held liable for interest until after that time, unless it appears that they have received interest on the trust fund before that time.f ) 18. Account should be rejected. — Where an account shows (: I Hiird's R. S., Chap. 3, ^ 113; Hanifan vs. Needles, 108 111., 403. (2) In the matter of the Estate of Schofield, 99 111., 513. CH. XI.J ACCOUNTING AND SKTTI.EMKNT. 131 the payment of some claims in full to the injury of others of the same class, it should be rejected. (^) 19. Account for monument to ijeceased. — A monument contracted for by the administrator, to be erected to the memory of the intestate, is not a proper charge by the administrator against the estate in his account.(''') 20. Heirs not bound. — Where the administrator fails to make any known defense to the allowance of a claim, as the statute of limitations, etc., and afterwards pays the claim, the heirs may insist upon the defense on settlement with the administrator, and are not bound by the allowance of the claim by the court.(^) 21. Order of approval several. — An order of the county court allowing in part the account of an administrator, is a complete and distinct judgment from the order rejecting the remainder of the account ; and an appeal by him from the order rejecting a por- tion of his claim, left in full force the order of approval, and it remains binding alike upon the administrator and heirs. If, instead, the heirs appeal, and the administrator does not, the state of the case is reversed. In either case, the county court may pro- ceed to enforce, by proper means, so much of the order as is not appealed from.(*) 22. Effect of an appeal from an order rejecting. — When some of the items in an administrator's account are rejected by the county court, and he appeals to the circuit court, such appeal does not bring before the circuit court the whole account, but the trial, which is de novo, will be confined to the items rejected by the county court.(^) In such a case, the appeal does not give the circuit court jurisdiction of the whole account, but only of the rejected items, and it can not hear evidence as to any of the items allowed by the county court. (^) 23. Errors in account not evidence of fraud. — Errors (i) People vs. Phelps, 78 111., 147. (2) Morg-an vs. Morgan, 83 111., 196; Foley vs. Bushway, 71 111., 386; Smyley vs. Reese, 53 Ala., 89. (3) Stillman et al. vs. Young et al., 16 111., 318; Gold et al., vs. Bailey, 44 111., 491; Kidd vs. Chapman, 2 Barb. Ch., 414; McGarvey vs. Darnall, 134 111., 367- {4) Curts vs. Brooks, 71 111., 125; Millard vs. Harris, 119 111., 185; Kings- bury vs. Powers, 131 111., 182. (5) Morgan vs. Morgan, supra. (6) Curts vs. Brooks, supra. 132 ACCOUNTING AND SETLEMENT. [CH. XI. in an luroiint mnde out by an attorney, without the knowledge of the aihniuistrator, are not .sulli(;ient to show actual fraud.(^) 24. Failuhe to pay over. — If any executor or administrator shall i'ail or refuse to pay over any moneys or dividend to any |)(>r.son entitled thereto, in pursuance of the order of the county court, lawfully 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, (^r until such delinquent is discharged by due course of law ; and moreover, such failure or refusal on the part of such executor or adminis- trator shall be deemed and taken in law to amount to a devastavit, and an action upon such executor's or administrator's bond, and ao-ainst 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.l^) 25. Imprisonment on failure to pay. — The power given to the county court to enforce obedience to its orders by imprison- ment, is a special statutory power ; and before this extraordinary remedy is resorted to, courts will require a strict and exact compli- ance with all antecedent conditions prescribed by the statute. There must not only be an order to pay to one lawfully entitled to recover money from the estate, but there must be a failure to com- ply with the conditions of the order, and a subsequent demand for payment. So, where the order required the administrator to pay within thirty days, a demand on him within that time, was a nullity, and a failure to comply with such demand, conferred no authority on the court to imprison the administrator. In such a case, in order to give the court jurisdiction to make an order of commitment, the creditor should make his demand after the time limited in the order of payment, and even then, the court could not act until thirty days after such demaud.(^) An order made in euch a ease, acts only upon the person of the administrator, and in no way affects another person, although he (i) Williams vs. Rhodes. 8i 111., 571 (2) Kurd's R. S., Chap. 3, ? 114; People vs. .' dai r , 39 HI-. 251- (3) Pi.u:.?C)tt vs. Ramey et al., i Scam., 145; Ha...cs vs. People, 97 111., 162; Von Kettler vs. Johnson, 57 111., 109; Johnson vs. Von Kettler, 66 111., 63; Johnson vs. Von Kettler, 84 111., 315. CH. XI. ACCOUNTING AND SETTLEMENT. 133 may be pres(!nt when tlie order is made and in possession of the assets of the estate sought to be reached, and although he fraudu- lently withholds such assets. He must be reached by other means, and an imprisonment of such person for a failure to pay, subjects the party instrumental therein to an action of damages. (^) The demand is one of the necessary elements that enters into the offense, and it cannot be dispensed with or waived by the administrator.(^) 26. Duration OF imprisonment. — While this absolute power of imprisonment is given against def uilting executors and adminis- trators, upon a proper case presented, that power is limited by the constitutional prohibition of imprisonment for debt.(^) Where the neglect or refusal to perform the order of the court is not from mere contumacy, but from want of means, the result of misfortune, the party entitled to payment, will be compelled to adopt some other means than imprisonment to enforce the order, as the courts, in obedience to the constitutional provision, will refuse to imprison ; or, having committed the person of the administrator, will discharge him from custody, upon it being made to appear that he is insolvent.(*) It would, however, appear that it is not sufficient for the impris- oned defendant to show that he has no money with which to pay ; but, to purge himself from the contempt, it should appear that the assets which came to his hands, have not fraudulently been con- verted to his own use.(^) 27. Order of distribution. — Until there has been an order of distribution among the heirs of an intestate, they cannot main- tain a suit against a stranger for the recovery of assets of the estate.(®) 28. Payment of legacies. — 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 lieing the first to be satisfied. (^ 29. Bond from legatees. — Executors and administrators shall not be compelled to pay legatees or distributees, until bond (i) Johnson vs. Von K- ♦^'er, 84 111., 315. (2) Haines vs. People. 97 111., 162. (3) Art. 2, ? 12. (4) Dinet vs. People, 73 111., 183 ; Blake vs. People, 80 111., 11. (5) Blake vs. People, supra. (6) Neubrecht vs. Santmeyer et al., 50 111., 74. (7) Kurd's R. S., Chap. 3, ^ 115. 134 ACCOUNTING AND SETTLEMENT. [CTI. XI. and scoui-ity is given by such legatees or distributees, to refund the due proportion of any debt which may afterwards apj^car against the estate, and the costs attending the recovery thereof; such bond sluill be made payable to such executor or administrator, and shall be for his indemnity and filed in the court.(^) a. No liability can arise under such a bond against the legatee and his sureties, unless it subsequently appears that the executor did not retain enough means of the estate in his hands to pay all liabilities against it, and that the claims unprovided for, were at the time the legacies were delivered, unknown to the executor; or, that there has been a depreciation of the assets retained by him by some unforseen calamity. (^) 30. When a bond should be taken. — Where a life estate in personal property is given to the legatee by the will, with remainder over to another, it is proper that the tenant for life, before coming into possession of such property, be required, by the court, as a condition of his receiving it, to enter into bond and secu- rity, to secure the remainder man the full reversion.(^) There are cases peculiar in themselves, where refunding bonds can not and need not be given. {*) 31. Citation. — The citation issued by a county court, to an administrator, to show cause why a settlement of an estate is not made, as well as an attachment issued to enforce an order of the court, should run in the name of the people. (^) Such a proceeding abates on the death of the person against whom it runs, before it is finally disposed of.(^) Lapse of time may bar it.(^) No citation can be ordered against the ])ersonal representative ot a deceased administrator or executor, to enforce a settlement of the estate represented by such deceased officer. (^) If an administrator or executor fail to pay to distributees as ordered, the remedy is by attachment. (^) (i) Kurd's R. S., Chap. 3, § 116; Pelham vs. Taylor, i Jones' Eq., 121. (2) Marsh vs. Scarboro et al., 2 Devereiix Eq. (N. C), 551; See, also, note to same case, 27 Am. Dec, 250; Wolf vs. Beaird, 123 111., 585. (3) Hatfield vs. Fowler et al., 60 111., 45. (4) People vs. Admire et al., 39 111., 252 ; Weir vs. People, 78 111., 192 (5) Reynolds vs. People, 55 111., 328. (6) Harvey et al., vs. Harvey, 87 111., 54. (7) Phillips vs. State, 5 Ohio, 122; See 64 Am. Dec, 636, for brief of authorities. fS) Harvey vs. Harvey, supra. (9) riggott vs. Ramey et a!., i Scam., 145. CH. XI. J ACCOUNTING AND SETTLEMENT. 135 32. No POWER TO RENDER JUDGMENT. — A court of probate har no power to render a money judgment in favor of heirs or devisees, against an executor or administrator, for failing or refusing to pay over to such heirs or devisees, their distributive portions of thh estate of the deceased. Q 33. Refunding by legatees. — 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 accord- ing to the order of the court, within sixty days thereafter, and upon demand made, such refusal shall be deemed a breach of his bond given to the executor or 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 due.(^) A creditor is not a distributee within the meaning of this section. (^) Where, after the settlement of an estate, and the distribution of the surplus personal estate among the heirs at law of the deceased, the administrator was compelled to pay a claim accruing in the lifetime of the deceased, it was held that the administrator might j)ro))erly call upon the distributees by bill in chancery, to refund sufficient to reimburse the administrator. (*) 34. What will bar claim for refunding. — A claim against a distributee for an excess paid upon distribution, like any other money claim, may be barred by the statute of liraitations.(^) 35. Suits between executors and administrators. — 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 (i) Piggott vs. Ramey et al., i Scam., 145; Cagney vs. O'Brien et al., 83 111., 72. (2) Hurd's R. S., Chap. 103, § 117. (3) Wolf vs. Griffin, 13 111. Ap., 559. (4) Cuthright et al vs. Stanford et al., 81 111., 240; Diversey vs. Johnson, 93 111., 547. (5) Shelburne vs. Robinson, 3 Gil., 597. 136 ACCOUNTING AND SETrLEMENT. [OH. XI. 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 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 : Frovided, that before any action shall be commenced for legacies as aforesaid, the court shall order them to be paid.(^) The word "action" in the above statute refers only to the action of account. (^) 36. Sureties not liable. — The common sureties of two or more administrators or executors are not liable to one of the princi- pals for the acts or defalcations of the other.( ^) 37. One administrator may have citation. — Executors may cite their co-executor to account before the Surrogate, for personal estate bequeathed by their testator ; but such accounting is merely for the purpose of a settlement, and he can not be decreed to pay over to his co-executors.(4) 38. Disposition of unclaijied estate. — If any balance of any such intestate estate as may, at any time, be committed to any [)ublic administrator, shall remain in the hands of such adminis- trator, after all just debts and charges against such estate, which have come to the knowledge of such public administrator within two years after the administration of such estate was comn^itted to him, are fully paid, such administrator shall cause the amount tliereof, with the name of the intestate, the time and place of his decease, to be published in some newspaper published in his county, or if no newspaper is published in his county, then in the nearest newspaper published in this state, for eight weeks successively, notifying all persons having claims or demands against such estate to exhibit the same, together with the evidence in support thereof, before the county court of the proper county, within six months after the date of such notice, or that the same will be forever barred; and if no such claim is presented for payment or distribu- tion within the said time of six months, such balance shall be paid into the treasury of said county; and the county shall beanswera- (i) Kurd's R. S., Chap. 3, ? 118; Grain vs. Kennedy, 85 111., 340. (2) Mahar vs. O'Hara, 4 Gil., 424. (3) Slaughter vs. Froman, 5 T. B. Monroe, 19; Atcheson vs. Robertson, 3 Rich. Eq , 132. ;^4J Smith vs. Lawrence, 11 Pni.^o. 206. CH. XI ] ACCOUNTING AND SETTLEMENT. 137 ble for th'j saine, without interest, to such parsons as shall thereafter appear to be le;;a!ly entitled, on order of the county court, to the same, if any sik-u shall ever appear.(') 39. Unclai.mioi) jionev to be deposited. — That whea anj) administrator or executor shall have made final settlement with the county court, it shall be the duty of the court to order said admin- istrator or executor to deposit Avith the county treasurer such moneys as he may have belonging to any non-resident or unknown heir or claimant, taking his receipt therefor, and have the same filed at the office of the county clerk, when such settlement has been made.C*) 40. How OBTAINED AFTER DEPOSFIED. — When money shall be deposited as aforesaid, the person or persons entitled to the same, may at any time apply to the court making said order, and obtain the saniL', u})on making satisl'aetory proof to the court of his, her or their right thereto.{^) 41. Compensation of executors, etc. — Executors and ad- ministrators shall be all(>',\'ed as compensation for their services, a sum not exceeding six per centum on the amount of personal estate, and not exceeding three per centum on the money arising from the sale of real estate, with such additional allowances for costs and charges in collecting and defending the claims of the estate and disposing of the same, as shall be reasonable. (*) 42. Additional allowances. — The provision in the statute for "such additional allowances for costs and charges," means onls- that the administrator may be reimbursed for moneys and costs actually paid by him to others in and about the collection and disbursement of the assets of the estate, and does not justify the allowance to him of an amount exceeding six per centum on the personal estate and three per centum on the amount arising from the sale of real estate, for his own services as agent or attorney of the estate.(^) An administrator is not entitled to compensation for services rendered by himself as attorney for the e.state,('') nor for (i) Kurd's R. S., Chap. 3, P^, ^9. (2) Kurd's K. S., Cha[). 3, ^. 134. (3) Kurd's R. S., Chap. 3, ^ 135. (4) Kurd's R. S., Chap. 3, ? 132; see 3 Probate Reports, s8^ for brief of autlionties. 1.0- (5) Hough vs. Harvey et al.,71 III., 72; Askew vs. Hudgens, 99 111., jGti. (6) /d./ VVillard vs. Bassett, 27 111., 37. 138 ACCOUNTING AND SETTLEMENT. [CH. XI. defending a suit brouglit against him before his appointment as such, even where the money of the estate was involved ;(^) uor is lie entitled to a per diem in addition to his comraissions.(^) But, under a special authority in a will, an executor may be allowed, by his co-executors, a reasonable salary for extra services in the business of the estate. (^) '13. Equitable principles to govern the approval of ACCOUNTS. — The county court, in the settlement of estates, is vested with equitable as well as legal powers. In case of mistake or acci- dent, by Avhich an administrator or executor is charged in his report with too much or too little, the court will be authorized to ascertain the true flicts, and correct the rejiort as the facts may justify and warrant, and charge the executor or administrator with the amount he justly owes.C) The county court may also enjoin parties seeking to interfere with property under its jurisdiction from intermeddling with the same.(^) (i) Allen, Adm., Ex parte, 89 111., 474. (2) Askew vs. Hudgens, 99 111., 468. (3) Clinch vs. Eckford, 8 Paige, 412 ; Lent vs. Howard, 3 Probate Reports, 109. {4) Millard vs. Harris, 119 111., 185 ; Estate of Corrington, 124 111., 363; Brandon vs. Brown, 106 111., 519 ; Winslow vs. Leland, 128 111., 304 ; Wads- worth vs. Connell, 104 111., 369 ; Mock's Heirs vs. Steele, 34 Ala., 198 ; Shepard vs. Speer et al., 29 N. E. Rep., 718, (111.) (5) Farwell vs. Crandall, 120 111., 70. ^ CH. XII.] DESCENT AND DISTRIBUTION. 139 CHAPTER XII. DESCENT AND DiSTJUJfUTlON. 1. Intestacy presumed. 2. Rules of descent. 3. Where will is renounced. 4. Who are next of kin. 5. Meaning of term " children.*' v 6. Children of the half blood. 7. What will bar distribution. 8. Estate of deceased infant. 9. Administrator must collect. 10. Advancements. 11. Value of real property advanced. 12. Value of personal estate. 13. Evidence of advancements must be written. 14. Death of heir. 15. Advancements do not affect widow. 16. When heirs may have distribution. 17. Illegitimate offspring. 18. How legitimated. 19. Rights before the statute. 20. Bastards under the common law. 21. Posthumous child. 22. Heirs at law. 23. Adopted children. 24. Husband and wife. 25. Rules of descent varied by contract. 26. Acceptance under will. 27. Descent not defeated by naked trust. 28. Where heir is indebted to estate. 29. Equalizing legacies. 30. Notice of final settlement and order of distribution. 31. Law in force at time and place of death governs distribution. 32. Debts and charges must be first paid. 33. Order of court necessary. 34. Distribution in kind. 35. Escheats. 1. Intestacy presumed. — When the death of the ancestor is shown, until rebutted, the presumption will be indulged that he died intestate, and that his heirs take his estate under the laws of descent. (^) (i) Lyon vs. Kain, 36 111., 362; Harvey vs. Thornton, 14 111., 217; Pile vs. McBratney et al., 15 111., 314. 140 DESCENT AND DISTRIBUTION. [cii. XII. 2. lluLES OF DESCENT. — That estates, both real and personal, of residents and non-resident proprietors in this state dying intestate, or whose estates or any part thereof shall be deemed and taken as intestate estate, after all just debts and claims against such estates are fully paid, shall descend to and be distributed in manner following to-wit : Ji'lrd — To his or her children and their descendants, in equal parts ; the descendants of the deceased child or grandchild taking the share of their deceased parents in equal parts among them. Second — When there is no child of the intestate, nor descendant of such child, and no widow or surviving husband, then to the parents, brothers and sisters of the deceased, and their descendants, in equal parts among them, allowing to each of the parents, if living, a child's part, or to the survivor of them if one be dead, a double portion ; and if there is no parent living, then to the broth- ers and sisters of the intestate, and their descendants. Third — When there is a widow or surviving husband, and no child or children, or descendants of a child or children of the intes- tate, then (after the payment of all just debts) one-half of the real estate and the whole of the personal estate shall descend to such widow or surviving husband, as an absolute estate forever ; and the other half of the real estate shall descend, as in other cases, where there is no child or children or descendants of a child or children. Fourth — When there is a widow or a surviving husl)and, and also a child or children, or descendants of such child or children of the intestate, the widow or surviving husband shall receive, as his or her absolute personal estate, one-third of all the personal estate of the intestate. Fifth — If there is no child of the intestate, or descendant of such child, and no parent, brother or sister, or descendant of such parent, brother or sister, and no widow or surviving husband, then such estate shall descend in equal parts to the next of kin to the intes- tate, in equal degree, (computing by the rules of the civil law,) and there shall be no representation among collaterals, except with the descendants of brothers and sisters of the intestate ; and in no case shall there be any distinction between the kindred of the whole and the half blood. Sixth — If any intestate leaves a widow or surviving hus]>and and no kindred, his or her estate shall descend to such widow or smviviug husband. CH. Xn.] DESCENT AND DISTRIRUTION. 141 Seventh — If the iutestate leaves no kindred, and no widow or husband, his or lier estate shall escheat to and vest in the county in which said real or personal estate, or the greater portion thereof, is situated. (^) All such estate, both real and personal, as is not devised or bequeathed in the last will and testament of any person, shall be distributed in the same manner as the estate of an intestate; but in all such cases the executor or executors, administrator or admin- istrators, with the will annexed, shall have the preference in administering on the same.(^) 3. In case will renounced — election to TxVke in lieu OF dower. — If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower in the estate of which the deceased husband or wife died seized, (whether the right to such dower has accrued by renunciation as hereinbefore provided, or otherwise,) and of any share of the personal estate wliicli he or she may be entitled to take with such dower, absolutely, and in his or her own right, one-half of all the real and personal estate which shall remain after the payment of all just debts and claims against the estate of the deceased husband or wife. The election herein provided for may be made whether dower has been assigned or not, and at any time before or within two months after notification to the survivor of the payment of debts and claims, and not afterward. (^) In cases where the widow is insane, the court will make choice for her, and enter such choice of record, being guided by what seeui,- lo be for her interest (*) 4. Who are next of kin. — The rule to be followed in deter- mining who are the next of kin of an intestate, in order to determine the fact of descent, is the same as that made use of in determining the right of administration, and to that reference is had.(^) Computing by the rules of the civil law, the maternal grand- (i) Hurd's R. S., Chap. 39, ? i ; Marvin vs. Collins, 98 111., 510; People vs. Brooks. 123 111., 246. (2) Hurd's R. S., Chap. 39, ? 12. (3) Hurd's R. S., Chap, 41, | 12 ; The renunciation must be in person: Milliken vs. Welliver. 37 Ohio, 460; Cowdrey vs. Hitchcock, 103 111., 262 ; Ward vs. Ward, 134 111.. 417; Crihben vs. Cribben, 136 111., 609. (4) State vs. Ueland, 30 Minn., 277; Van Steinwyck vs. Washburn, 59 Wis., 483. (5) See ante pa,i;;e to. 9 142 DESCENT AND DISTRIBUTION. [CH. XII, father is a nearer relative to oue than his paternal aunt — the lurmer being rehited in the second degree, while the latter is related only in the third degree.(') And, by the same rule, the father and mother are related to their chihl in the first degree, while brothers and sisters are related to each other iu the second degree. ^^j 5. Meaning of the avokd children. — It is a rule of con- struction, that the word '' children," as used iu our statute of descents, means lawful children ; and the above use of that term, includes only such children as were born in lawful wedlock, and excludes illegitimate offspring, except as it is modified by Section 2 of this statute.(') Every child born in wedlock is presumed to be legitimate.(*j 6. Children of the half blood. — This term is held to embrace the children of a common mother, who have different fathers, as well as those of a common father, M'ho have different mothers.(*) 7. What will bar distribution. — A child and prospective heir, under no disability, may receive from the ancestor a portion of his estate, and by an instrument of writing, agree that such sum or property shall be in full of his share of his ancestor's estate, and thus bar his right to participate in the distril)utiou of the estate.(^) 8. Estate of a deceased infant. — The estate of a deceased infant, who dies at an age at which it is incapable in law of contract- ing debts, vests immediately in its next of kin, and the appointment of an administrator is unnecessary. ('j And in such a case, the mother, being the only surviving parent, will take two shares in such estate.(^j 9. Administrator must collect. — The personal estate of a person dying intestate, whilst it descends to and is distributed among (i) Barrier vs. Hobbs, 67 III., 592. (2) Hays vs. Thomas, Breese, 136. (3) Blacklaws vs. Milne et al., 82 111., 505; Orthwein vs. Thomas 127 in., 554. (4) Illinois Land and Loan Co. vs. Bonner, 75 III, 315 ; Orthwein vs. Thomas, supra. (5) Oglesby Coal Co. vs. Pasco et al.. 79 111., 164. (6) Bishop et al. vs. Davenport et al., 58 111., 105, and authorities tiiere cited; Kershaw vs. Kershaw, 102 111.. 307; Parsons vs. Ely, 45 111,2-2; Galbraith vs. McLain, 84 111., 379; Simpson vs. Simpson, 114 111., 603: Criun vs. Sawyer, 132 111., 443; Winslow vs. Leland, 128 111., 7,04. (7) Lynch et al. vs. Rotan et al., 39 111., 14; McCleary vs. Menke, 109 111., 294. (8) Voris vs. Sloan et al., 68 111., ^88. CH. XIl.] DESCENT AND DISTKIDUTION. 148 his heirs, after the j)aynient of debts, must pass through due admin- istration, under the direction of tiie {)roj)er court; and an lieir can not maintain a suit in his own name, or by virtue of his heirship, upon a debt due to his: ancestor. (^) 10. Advancements. — Any real or personal estate given by an intestate in his lifetime as an advancement to any child or lineal descendant, shall be considered as part of the intestate's estate, so far as it regards the divisions and distribution thereof among his issue, and shall betaken by such child or other descendant towards his share of the intestate's estate ; but he shall not be required to refund any part thereof, although it exceeds his share.(^) To be considered as advancements, such sums of money or lands must be charged by the ancestor or rccaived by the heir in writing as such.(^) But this requirement may be waived. (*) The value and fact of an advancement to an infant must be |)roven.(^) Where a conveyance is made by a man to his wife or child, the j)resumption of the law is, that such conveyance is intended as an advancement. But that presumption may be overcome by evidence. Whether such a conveyance is an advancement or not, is a question of pure intention, though presumed in the first instance, to be a provision and settlement. (^) 11. Value op real estate advanced. — If such advance- tnent is made in real estate, and the value thereof is expressed in the conveyance or in the charge thereof made by tlui intestate, or in the written acknowledgment thereof by the party receiving it, it shall be considered as of that value in the divisions and distribution of the estate ; otherwise, it shall be estimated according to its value when given. 1^'') 12. Value of personalty advanced. — If such advance- ment is made in personal estate of the intestate, the value thereof to be estimated the same as that of real estate; and if, in either (i) Leamon et al. vs. McCubbin et al., 82 111., 263; McLean Co. Coal Co. vs. Long, 91 111.. 617. (2) Hurd's R. S., Chap. 39, ? 4; Simpson vs. Simpson, 114 111., 603. (3) Bishop et al. vs. Davenport, 5S 111., 105; Wallace vs. Reddlck, 119 II'., 151 ; Wilkinson vs. Thomas, 128 111., 363. (4) Long vs. Long, 132 111., 72. (5) Barnes vs. Hazelton et al., 50 111., 430 (6) Wormley vs. Wormley, 98 111., 544. (7) Hurd's R. S., Chap. 39, ^^ 5. 144 DESCENT AND DISTRIDUTrON-. [CH. XII. case, it exceeds the share of real or personal estate, respectively, that would have come to the heir so advanced, he shall not refund any part of it, but shall receive so much less of the other part of the intestate's estate as will make his whole share equal to the shares of otiier heirs who are in tlie same degree with him (^) 13. EviDEXCE MUST liK WRITTEN. — No gift or grant shall be deemed to have been made in advancement unless so expressed in writino or charged in writing, by the intestate, as an advancement, or acknowledged in writing by the child or other descendant. (^) 14. Death of heir. — If a child, or other descendant so advanced, dies before the intestate, leaving issue, the advancement shall be taken into consideration in the division or distribution of the estate of the intestate, and the amount thereof shall be allowed accordin-ilv bv the representatives of the heirs so advanced, as so nuich received towards their share of the estate, in like manner as if the advancement had been made directly to them.(^) 15. Advancements do not affect widow. — Where the intestate lia.s made advancements to some one or more of his heirs in his lifetime, such advancements do not affect the rights of the widow, as she will take her share of the personal estate, and her dower in kinds, without regard to advancements.^) 16. When heirs may have distribution. — The county court may, at any time, comi)el a distribution, either entire or partial, to heirs, whenever it shall appear that there are assets to satisfy all demands against an estate. (^) But Avhere the estate is involved in litigation, and the amount of its net assets is unknown, or whether tliere are assets in excess of liabilities, the payment to legatees or heirs will not be ordered. (''j 17. Illegitimates. — An illegitimate child shall be heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living ; and the lawful lssuc of an illegitimate person shall represent such person, and take, by descent, any estate which the parent would have taken, if living. (i) Kurd's R. S., Chap. 30, ? 6. (2) Hind's R. S., Chap. 39. ? 7; Wallace vs. Reddick, no 111. isi (3) Kurd's R. S.. Cliap. 39, ^8. (4) Grattau vs. Grattan et al.. iS 111., 167. (5) Reynolds vs. People, 55 111., 328. (6) /ft re Ricaud, Supreme Court of Cal., 13 Le.i^al News, ^26; Peck vs. Peck, 9 Yerger, 304; Andrews vs. Hunnemau, 6 Pick., 128. CII. XII.] DESCENT AND DISTRIBUTION. 146 Second — The estate, real and personal, of an illegitimate person, shall descend to and vest in the widow or surviving husband and children, as the estate of other persons in like cases. Thh'd — In case of the death of an illegitimate intestate leaving no child or descendant of a child, the whole estate, personal and i-oal, shall descend to and absolutely vest in the widow or surviving husband. (') Fourth — When there is no widow or surviving husband, and no cliild or descendants of a child, the estate of such pci .^ou shall descend to and vest in the ni<^ther and her children, and their de- scendants — one-half to the mother, ard the other half to be equally divided between her children and tiieir descendants, the descend- ants of a child takihg the share of their deceased parent or ancestor. Fifth — In case there is no heir as above provided, th(! estate of such person shall descend to and vest in the next of kin to the mother of such intestate, according to the rule of the civil law, ti'ixth — When there are no heirs or kindred, the estate of such person shall escheat to the state, and not otherwise.(^) 18. Child LEGITIMATIZED. — An illegitimatechild, whose parents have intermarried, and whose father has acknowledged him or her as his child, shall be considered legitimate. (^) 19. Rights before the statute. — Before the passage of the statute of descents of 1872 (the above statute), an illegitimate child could inherit property from its mother only in cases where she remained unmarried. (*) Where the father of an illegitimate child contracted with the mother to take the child into his own family and raise it as his own, and to give her i portion of his estate in common with his other children, it was held that the legal oblio-ation of the father to support his illegitimate child, would support the contract, and its specific performance was enforced. {^) (i) Evans vs. Price, ii8 111., 593. (2) Hurd's R. S., Chap. 39, ^2; Bales vs. Elder, iiS 111., 436; Jenkins vs. Drane. t2i III., 217 ; Elder vs. Bales, 127 111., 425; See 72 Am. Dec. for briefof f uuio.'Jties. (3) Hurd's R. S., Chap. 39, ? 3 ; Stolz vs. Doering, 112 111., 234. (4) Blacklaws vs. Milne et al., 82 111., 505; Orthwein vs. Thomas, 127 111., 554- (5) Wallace vs. Rappelye, 103 II!., 229. 146 DESCENT AND DISTRIBUTION. [cH. XII. 20. Bastards under the common law. — By the provisions of the common law, bastards could neither inherit nor transmit property, except to direct issue. Where such a person died having no descendants, his property escheated to the crown, although the mother and other near relatives might be living. Such a person was regarded by that law as the child of nobodj, entitled to noth- ing, uui even a name, until he acquired it l)y usage.('j The statute of Illinois relieves him of these disabilities in part, and enables him to inherit from his mother and her relatives, and to transmit to collateral relatives, the same as other persons.(^) 21. Posthumous child. — A posthumous child of an intestate shall receive its just pro})ortion of its ancestor's estate, in all respects, as if he had been born in the Lifetime of the fatlier.(^) The true construction of our statute of descents, is, that a posthumous child inherits of an intestate father, precisely as do his children born in his own lifetime. On the death of a father, the title to his real estate vests in the posthumous child, precisely as though such child had been previously born.(*) And such interest will not be divested by a decree against the mother and others, under which a sale was made to satisfy a debt against the relatives and ancestor of such child. (^) 22. Heirs at law. — An heir at law, is one who takes from another by descent — upon whom the law casts the estate immedi- ately upon the death of the owner. Where property is devised to the heirs of the testator, without any other designation, such a direction is equivalent to a devise or bequest to those who would take the estate under our statute of distribution, if the estate was intestate. (^) In such a case, where the testator died childless, leav- ing a husband or wife and collateral heirs, such husband or wife> would take, the same as if no will had been made, one-half the real estate, and all the personal property left after the payment of debts (i) I Blackstone's Com., 459, Stolz vs. Doering, 112 111., 234. (2) Miller vs. Williams et al., 66 111., 91. (3) Hurd's R. S., Chap. 39, § 9. (4) Botsford vs. O'Conner et al., 57 111., 72. (5) Detrick vs. Migatt et al., 19 111., 146 ; Smith et al. vs. McConnell et al. 17 111.. 135 ; McConnell et al. vs. Smith, 23 111., 611 ; McConnell et al. vs. Smith et al., 39 111., 279; Kelley vs. Vigas, 112 111., 242; Alexander vs. Masonic Aid Association, 126 111., 558. (6) Rawson et al. vs. Rawson et al., 52 111., 62 ; Richards vs. Miller, 62 111 , 417; Ketteltas vs. Ketteltas, 72 N. Y., 312. CII. XII.] DESCENT AKD DISTRIBUTION. 147 and specific legacies. (^) But where a person dies intestate, leaving children capable of inheriting, his wife cannot be considered as being embraced in a provision made for the benefit of his " legal heirs." She would be considered as specially excluded from such a provision. (^) The distinguishing feature seems to be, that one who is entitled to dower out of the lands of an intestate cannot, at the same time, be his heir.(^) Under the term '' heirs" are comprehended the heirs of heirs ad ivjinilum.[^) 23. Adopted children. — The statute provides for the adop- tion by any resident of this state, l)y proceedings in the county court, of any child, and when so adopted, the child becomes the legal heir of the person so adopting him, which relation becomes reciprocal, the adopting parents and their heirs taking by descent from the adopted child and his descendants, such property as he may have received from or through the adopting parents, or eithei- of them, either by gift, bequest, devise or descent, with the accumu- lations, income and profits thereof, but none other.(^) This relation does not extend to the legal heirs of the ado])ting parents, so as to enable the adopted child to inherit from them.('') 24. Rights of husband and wife. — The husband and wife are, by the statutes of Illinois, placed upon an equality as to their rights in each other's ])roperty,(''') except as to the widow's award. Neither can by will deprive the other of his or her right to dower in the real estate, and one-third of all the personal property, after the payment of debts and costs of administration. And where no provision is made in the will of a decedent leaving descendants, for his or her wife or husband, the estate as to such survivor is intes- tate, and he or she takes one-third of the personal property after the payment of debts and dower in the lauds, according to the pro- visions of the statute. The right of such surviving husband or wife to one-third of the personal estate remaining, rests on a basis (i) Id.; In re Taylor's Will, 55 111., 252. (2) Gauch vs. St. Louis Ins. Co., 88 III., 251. (3) Id. (4) Merrill et al. vs. Atkin, 59 111., 19. (5) Kurd's R. S., Chap. 4. (6) hi re Estate of Michael R. Keegan, 13 Legal News, 161-328; Keegan vs. Geraghty, loi 111., 26; Estate of .Sunderland, 60 Iowa, 732. (7) Hurd's R. S., Chap. 39, \ i ; Id., Chap. 41, \ i. 148 DESCENT AND DISTRIBUTION. [CH. XII. as solid as the riiilit to dower in the lands.(') But the right of the surviving spouse of a person who dies, leaving no deseendants, to the statutory provision of " one-half of the real estate and the wliole of the personal estate," after the payment of debts, provided for in Section 1 above, does not rest upon such sure foundation ; for the deceased, by making such provision, as he or she pleases in his or her will, may eilectually bar the survivor of this right. Where a person having no descendants died, leaving a will, by which cer- tain provisions were made for his wife, which she renounced, and claimed as heir to her husl)and, one-half of the realty and all of the personal estate, it was hold, that she was only entitled to one- half of the realty and one-third of the personal property after the payment of debts, in addition to the award of her sjtecific allowMncc^*) This case was decided under the statute as it existed prior to the revision of 1874, when some difficulty was experienced to settle the law, seemingly contradictory, (^) but the enactment of Section 12 of the Dower act, supra, settles the rule as tliere stated. The personal property being the natural and primary fund for the payment of the debts of the decedent, the widow of a decedent who died without descendants, can only take his personal property with the charge of all his legal liabilities upon it. Though his debts are mortgages upon his real estate, or in that nature, in which the other heirs share equally with the widow, and the payment of such debts will operate to relieve the proiicrty of such other heirs therefrom, yet they have the right to insist upon the payment out of the personal property. And this, too, though the estate has been settled, and the personal property paid over to her, freed, as she supposes, from all further charges. (*) 25. Descent varied by contract. — It is competent for the widow and heirs of a deceased person to make a different disposition of the personal property left by him from that provided by the (i) I/i re Taylor's Will, 55 111., 2.52; Rawson etal. vs. Rawson, 52 111., 62. (2) Lessley et. al. vs. Lessley, 44 111., 527; Henson vs. Moore, 104 111., 403. (3) Tyson vs. Postlevvait et al., 13 111., 727 ; Sturgis et al. vs. Ewing, 18 111., 176; Murphy vs. Boyles et al., 49 111., no; Skinner vs. Newberry, 51 111., 203, Boyles et al. vs. Murphy, 55 111., 236; Rawson et al. vs. Rawson, suprl. — A widow, by accepting the provisions of her husband's will, made in her behalf, will after- ward be barred from claiming the statutory jjrovisions in favor of widows of persons dying in this state, except as to the specific articles.^^) 27. Descent not defeated by a naked trust. — Where no trust is created by a will, but only a naked power given to sell, and no sale having been made, such would not defeat the right of the heirs to take the property as provided by the statute of descents. (^j 28. Distributive share of an heir indebted to the estate. — Where one of the distributees of an estate is indebted to the estate, the county court, under its chancery powers, has the right to order sufficient of the share of such debtor paid over to the other heirs, to make the distribution equitable and just, by considering the amount of such indebtedness in the nature of an advancement.(^j One may offset his distributive share against his indebtedness, but such debt must be considered a part of the assets that go to make up the aggregate fund for distribution. (^) 29. Equalizing legacies. — In all cases where a widow or surviving husband shall renounce all benefit under the will, and the legacies and bequests therein contained to other persons, shall, in consequence thereof, become diminished or increased in amount, quantity or value, it shall be the duty of the court, upon settlement of such estate, to abate from or add to such legacies and bequests in sucli manner as to equalize the loss sustained or advantage derived thereby, in a corresponding ratio to the several amounts of such legacies and bequests, according to the amount or intrinsic value ofeach.(«) 30. Notice. — No final order of distribution should be made (i) Comer vs. Comer, 120 III., 420; Roth vs. Roth, 104 III., 35. (2) Brown et al., vs. Pitney, 39 111., 470. (3) Gill vs. Grand Tower Manf. Co., 92 III., 250. (4) 19 Pick., 167; Ratton vs. Allen, i Halsted's Ch., 99. (5) Anderson vs. Gregg, 44 Miss., 170. (6) Kurd's R. S., Chap. 3, | 78. 150 DESCENT AND DISTRIBUTION. [cil. XII. without notice to those interested, whether they be heirs or creditors; and without notice no one is bound by the order of distribution. (^) 31. Law governing distribution. — Personal estate of a decedent is regarded, for the purposes of succession and distribution, wherever situat^xl, as having no other locality than that of his dom- icile ; and if he di<:s intestate, tlie succession is governed by the law of the place wliero he was domiciled at the time of his decease, and not by the *30nnicting laws of the various places where the property happens to be situated at the tinie.('-*j So, distribution among either creditors or heirs will be made according to laws in force at the time of the death of the deceased, and not according to laws subsequently passed. (') 32. Order of payment and distribution. — Before a distri- bution of the personal assets of an estate can be made among the heirs thereto, it must appear that all debts and charges to which it is subject are either paid or otherwise provided for.C*) 33. Order of court necessary, — Payment of the distributive share of heirs in an estate cannot l)C enforced by the processes of the county court until there has been an order made by that court, and the distributee has executed a bond to refund the money, if necessary, to pay the debts of the estate.(^) Such an order, when made by a court having jurisdiction, is conclusive upon all persons interested. (^) Distribution made without an order is at the risk of the adminis- trator.C) 34. Distribution in kind. — If any testator directs that his estate shall not be sold, the same shall be preserved in kind, and distributed accordingly, unless such sale becomes absolutely neccs- (i) Kurd's R. S., Chap. 3, ? iii ; Long vs. Thompson, 60 111., 27; Slaughter vs. Froman, 5 T. B. Monroe, 19. (2) Hossack vs. Rogers, 6 Paige, 415; Langdonvs. Potter, 11 Mass., 313; Russell et al. vs. Madden, 95 111., 485; Holmes vs. Remsen, 4 Johns. Ch., 460 ; Vroom vs. Van Home, 10 Paige, 549; Sherwood vs. Wooster, 11 Paige, 441 ; Shultz vs. Pulver, 3 Paige, 82; Parsons vs. Lyman, 4 Brad., 269; Wilkins vs. Elliott, 9 Wall., 740; Saurez vs. Mayor of N. Y., 2 Sand. Ch., 173. (3) Pascall vs. Hailman, 4 Gii., 285; Bryan vs. Moore, 11 Martin, 26; See, also, note, 13 Am. Dec, 349; Bales vs. Elder, 118 111., 436; Armstrong vs. Armstrong, i Ore., 207. (4) Hurd's R. S., Chap. 3, ^ 112; People vs. Hunter et al., 89 111., 392. (5) Hurd's R. S., Chap. 3, ^ 118 ; Mahar vs. O'Hara, 4 Gilm., 424 ; Wis- dom et al. vs. Becker. 52 111., 342. (6) Bigelow on Estoppel, 159. (7) Loury vs. McMillan, 35 Miss., 147. CH. Xri.] DESCENT AND DISTRIBUTION. 151 sary for the ])ayment of the debts and charges against the estate of such testator. (') This section is not peremptory. (^) If the sale of the personal property is not necessary for the pay- ment of debts or legacies, or the proper distribution of the effects of the estate, the court may order that the property be preserved and distributed in kind.(^) This docs not include uotes.(*) 35. Escheats. — That if any person shall die seized of any real or personal estate without any devise, and leaving no heirs or repre- sentatives cji[)able of inheriting the same, or the devisees thereof be incapable of holding the same, and in all cases when there is no owner of real estate capable of holding the same, such estate, both real and personal, shall escheat to and vest in the county in which said real or personal estate, or greater portion tliereof, is situated.(^ In case said estate shall consist of personal property, letters of administration shall be granted thereon, as in other cases, and the same shall be administered in conformity with the probate laws of this state. Should there be any balance left in the hands of said administrator after the payment of debts and costs of administration, said administrator shall report the same to the probate court, with a statement of all the facts within his knowledge as to the heirship of said decedent, which facts shall constitute a part of his report, and be spread upon the records of said court ; and it shall be the duty of said court to enter an order directing said administrator to pay over the balance found in his hands to the county treasurer of said county, taking his receipt therefor, which receipt shall be filed with the county clerk and entered of record, and shall be a good and sufficient voucher to said administrator. The said county clerk shall also charge said amount to the county treasurer as an escheat fund, specjially designating from whose estate the same was derived. (®) (i) Kurd's R. S., Chap. 3, ^ 91. (2) Waterman vs. Alden, 115 111., 83. ^3) Kurd's R. S., Chap. 3, I 92. (4) Waterman vs. Alden, supra. (5) Kurd's R. S., Chap. 49, I i. (6) Kurd's R. S., Chap. 49, I 2. 152 SAKE OF REAL ESTATE TO PAY DEBTS. [ciI. XIII. CIIAPTP^R XIII. SALE OF REAL p:STATE TO PAY DEBTb 1. Real estate ultimately liable. 2. When it may be sold. 3. Where executor has exhausted his power in the will. 4. Petition to the court— parties thereto. 5. Proceedings coerced. 6. Form of petition — exhibit of estate. a. Must contain averments showing a statutory right to sell. b. Jurisdictional facts must be stated. c. Statutory averments in the petition invests the court with jurisdiction. d. Unnecessary matter will not defeat jurisdiction. e. Averment of no personal estate m::kes exhibit of account unnecessary. /. Must be allegation of debts. g. Equivalent averment. h. Just and true account. 7. Parties to proceeding under various statutes. a. All parties must be in court. b. Failure to name all parties in tiie petition does not defeat jurisdiction. 8. Description of premises. 9. Summons. a. Form immaterial. 10. Service of suminons. a. Return of sheriff must show legal service b. How service must be proven. 11. Notice by publication — contents of notice. a. How long published. b. Notice must be published for requisite time. c. May be given in any paper published at the county seat. 12. Affidavit of non-residence — may be made on belief. a. Sufficient if necessary facts are stated. b. Whole notice considered together. 13. Where decree shows that notice was given. 14. Parties must be before the court — want of jurisdiction. a. Failure to get jurisdiction of parties fatal. b. Having jurisdiction decree binds in collateral proceedings. c. Presumptions may be rebutted. cii. xrir.] SALE OF reat, estate to pay debts. 153 15. Practice — docketed as in other cases. a. Continuance. d. Decree to pay debts in partition. 16. Guardian ad litem — iiis duties. a. Failure to appoint is error. b. Answer not sufficient evidence. c. Jurisdiction can not be given by guardian's answer. d. Guardian «'/ Ii/ei)i must appear and defend actively. 17. Hearing of cause. iS. Assignment of dower. 19. When dower can not be assigned without injury. 20. Dower may be assigned together. 21. Homestead — sale. 22. Land may be platted 23. Description of land in decree. 24. Extent of sale. 25. Power of court limited. 26. Power to order sale judicial. - 27. Not a chancery proceeding. 28. Administrator no power to remove incumbrance by proceedings in court. 2q. Heirs may interfere to prevent loss, but creditors can not. a. Creditors may maintain bill toset aside fraudulent conveyance. 30. Jurisdiction of chancery courts to order sale of land. 31. Decree can not be attacked. 32. Defenses — heirs may attack judgments. a. Theie must be debts. b. Debts barred by statute. c. Heirs not bound by judgments against administrator. d. Judgments of foreign courts. e. Statute must be pursued. 33. Time of payment. 34. Limitations in absence of a statute. a. Lapse of time may be explained. b. Homestead. 35. Sale, report and confimation. a. Attorney no power to sell. b. Administrator himself must act c. Successor may make sale. d. Failure to advertise. e. Decree must be followed. /. Sale for less than value. g. Requiring deposit. //. Sale must be made in separate tracts. i. Administrator can not purchase. / Irregularity will not vitiate sale. k. T-me of sale. /. Second sale, w. Report of sale. 154 SALE OF REAL ESTATE TO PAY DEBTS. [CH. XIU. 36. Title of purchaser— caveai emptor. 37 Effect on sale of a reversal of the decree. 38. Forgery— fraud— chancery jurisdiction. 39. Conveyance under decree and sale. a. Must be made by administrator in person. b. Formerly must contain copy of decree. c. Purchaser need not look back of decree. d. Deed to another. e. Refusal to consummate sale. 40. Proceeds of sale. 41. Sale of land not fully paid for. 42. Power to sell under a will. 1. Real estate ultimately liable. — Under our statute, the lands of an intestate are held subject to the payment of his debts. After the personal estate is exhausted, it is made the duty of the administrator to apply to the proper court, and obtain a license to sell so much of the real estate, as will be sufficient to dis- charge the residue of the debts. Creditors are not compelled, as at common law, in order to procure satisfaction of their debts, where there is a deficiency of assets for the purpose, to pursue the lands into the hands of the heir ; or to charge the heir with its value, in the case of an alienation by him. They have only to establish their demands against the administrator, and he is required to make pay- ment out of the personal estate ; and when that proves insufficient, to convert enough of the real estate into assets to meet the deficiency. The statute, in effiict, reserves a lien on the lands of an intestate, to secure the payment of any excess of indebtedness beyond the pro- ceeds of the personal estate. This lien is to be enforced by the administrator, for the benefit of the creditors generally. The lien, however, is not perpetual, but may be lost by gross laches or un- reasonable delay. The real estate descends to the heir with this charge resting upon it. He can not encumber or aliene it, to the pre- judice of the rights of the creditors. He acquires a vested, but not un absolute, interest in the land. He takes a defeasible estate, liable to be defeated by a sale made by the administrator in the due (X)urso of administration. He has no just claim to the land, until the indebtedness of the ancestor is fully discharged. He acquires an absolute title only to what remains after the debts are extin- guished. (^) (i) Vansyckle et al. vs. Richardson et al. 13 111., 171 ; Myer et al. vs. McDougal et al., 47 111., 278 ; LeMoyne vs. Harding 132 111., 23. CH. XT II.] SALE OF REAL ESTATE TO PAY DEBTS. 155 2. WiiF.x AND WHAT MAY RE soi-D. — When the executor or administrator lias made a jnst and true account of tlie personal estate and debts to the county court, and it is ascertained that the personal estate of a decedent is insuflicieut to pay the just claims •iffainst his estate, and there is real estate to which such decedent had claim or title, such real estate, or such portion as may be neces- >ary to satisfy the indebtedness of such decedent, and the expenses of administration, may be sold in the manner herein provided.(^) 3. Where executor has exhausted his power under the WILL. — Where power is given in a will to an executor to sell certain lauds of the testator for the payment of debts, and those lauds, upon sale, fail to realize a sufficient amount for the payment of all his debts, the executor may apply to the county court for authority to sell other lands. (^) 4. Petition — parties. — The mode of commencing the pro- ceedings for the sale of real estate in such cases, shall be by the filing (»i a pci i o.i ^> the execuLur or administrator in the circuit ur county court vi' lIic county where letters testamentary or of admin- istration were issued. -The widow, heirs and devisees of the testator or intestate, and the guardians of any such as are minors, and the conservator of such as have conservators, and all persons holding liens against the real estate described iu the petition, or any part thereof, or having or claiming any interest therein, in possession or otherwise, shall be made parties. If there are persons interested in the premises whose names are not known, then they shall be made parties by the name of unknown owners. (^) 5. Sale to pay debts^coerced. — Whenever real estate is required to be sold for the })ayment of debts, the court may make all necessary orders to coerce the executor or administrator to make immediate application for an order to sell such real estate.(*) 6. Form of petition. — The petition shall set forth the facts and circumstances on which the petition is founded, in which shall be stated the amount of claims allowed, with an estimate of the amount of just claims to be ])resented, and it shall also contain a statement of the amount of personal estate which has come to the hands of the petitioner, and the manner in which he has disposed (i) Kurd's R. S., Chap. 3, ? 97; Kenley vs. Bryan, no III., 652. (2) Kinney et al. vs. Knoeiiel, 51 III., 114; 2 Probate Reports, 443. (3) Kurd's R. S., Chap. 3, ? 98; Bovvers vs. Block, 129 111., 424. (4) Kurd's R. S., Chap. 3, ^ 129. 156 SALE OF RKAL ESTATE TO PAY DEBTS. [vll. XIII. of the same, with a statemjut of the amount of claims paid, a par- tii'ulai- description of the real estate sought to be sold, and the nature and extent of all 'iens upon said real estate, so far as the same may be known to the petitioner. The petition shall be signed by the executor or administrator and vei'ified by his affidavit, and shall be filed at least ten days before the commencement of the term of court at which the application shall be niade.(') a. An administrator derives his power to sell lands to pay debts from the statute, and, unless the petition shows, by proper aver- ments, the existence of a state of facts contemplated by the statute to authorize a sale, and those averments are sustained by proof, a decree of sale can not be sustained. (^) h. County courts acquire jurisdiction in a proceeding by an administrator to sell lands to pay debts, from the death of the party seized of real estate, the grant of letters of administration, his indebtedness in excess of the personal estate, and filing a petition showing these facts.(^) The record must show that a petition was filed, or the decree will be reversed. (*) c. Petition need only contain such averments as the statute requires. Followed by such notice to the defendants as the statute requires, the court is invested with jurisdiction, and its decree is binding until reversed, although errors in its proceedings may intervene. (^) d. Where a petition was addressed to the chancellor, it was held that, while the proceeding was in no sense a chancery proceeding, but strictly one of law, yet as the statute prescribed no particular form for the petition, and as it contained all the required statutory averments, it was sufficient, and would be considered as presented and carried on under the statute. (^) e. In the same petition there was an averment that there was no personal estate belonging to the deceased, which statement fully met an objection that there was no averment of a just and true account of the personal estate. (^) (i) Hurd's R. S., Chap. 3, l 99. . (2) Walker etal. vs. Diehl, 79 111., 474 ; Bennett vs. Whitman, 22 111., 448. (3) Bostvvick et al. vs. Skinner et al., 80 111., 147 ; Iverson et al. vs. Loherg, 26 111., 179 ; Young vs. Wittenmyre, 123 111., 303. (4) iMunahan et al. vs. Vandyke, 27 111., 154. (5I Stow etal. vs. Kimball etal., 28 111. ,94; Harding vs. LeMoyne,ii4lll.,65. (6) Hobson etal. vs. Evvan, 62 111., 146; Bowles Heirs vs. Rouse, 3 Gil., 409. (7) Hobson et al. vs. Evvan, supra. CII. XIII.] .SAMO OF REAL ESTATE TO I'AV DEBTS. 157 /. There must be some allegation tli:!t there ai'e debts against the estate, and tliat tlicre is no personal property, or there being such, that it is insuflieient for the ])aynK'nt oi' the debts. Tha: more fornuil allegations may be nec^essary on demurrer, may be true, but thoy do not go to the jurisdiction.'/) g. In the same case the petition stated that there were debts of the decedent, amounting to dollars, and that there were no per- sonal assets with which to pay said debts, which was held a suffi- cient statement of the indebtedness to authorize a decr a. (7) Marshall vs. Rose, 86 III., 374. ^ , 10 158 SALE OF REAL, ESTATE TO PAY DEBTS. [ciI. XUI. siimnioiis.(') A posthumous cliild of the intestate, born after the filini!;of the petition, will not l)e concluded by a decree in the case. (^) 8. Descrittiox of puemisks. — A correct description of the j)reniises sought to be sold is very important, for, where by an error in the petition and snliscqneut proceedings, the wrong tract was sold, the error is such as cannot be corrected subsequently to the sale by any court. (^) 9. Summons. — Upon the filing of the petition, the clerk of the court Avhere the .same may be filed, shall i.ssue a summons, directed to the sheriff of the county in whicii tlie defendant resides, if the defendant is a resident of this state, requiring him to appear and answer the petition on the return da}' of the summons ; and where there are several defendants, residing in different counties, a sepa- rate summons shall be issued to each county, including all the defendants residing therein. Every summons shall be made return- able to the first term of the county court after the date thereof, unless the petition is filed within ten days immediately preceding any term, in which case the summons shall be returnable to the next term thereafter.(^) a. In such a proceeding, a mere informality in the summons, which informs the defendants of the nature of the proceedings against them, Avill not excuse a disregard of it.("^; 10. SePvYICE. — The service of summons shall be made by read- ing thereof to the defendant, or leaving a copy thereof at the usual [)lace of abode, with some member ot the family of the age of ten years and u[)wards, and informmg such person of the contents thereof, which service shall be at least ten days before the return of such summons. (e"^ a. The return of the sheriff upon the summons, must show such a service as the law requires, or else the court fails to get jurisdic- tion of the person of the defendant, and no decree can be rendered which will divest him of the title of his property. (■^) The defect in (i) Bowers vs. Block, 129 HI., 424. (2) Botsford vs. O'Connor et al., 57 III., 72. (3) Ward vs. Brewer, 19 111.. 291; Young et al. vs. Dowling, 15 111., 48: ; Schnell et al. vs. Chicago, 38 111., 382. (4I ilurd's R. S., Chap. 3, | lor. (5) Jetlries etal. vs. Decker etal., 42 111., 519. (.6) ilurd's R. .S., Chap. 3, ? 102. (7) Whitney vs. Porter et al., 23 III, 445. CH. XIII.] SALE OF REAL ESTATE TO PAY DEBTS. 159 service is not cured by recitals in the decree, that due service of process was had, when other portions of the same record contradict such recitals. (^) 6. Where the service is by summons, verbal testimony can not be received to prove or aid it. That can be shown alone by the officer's return. It is otherwise, when the service is by publication. (^) 11. Notice by publication. — Whenever any petitioner or his attorney shall file, in the office of the clerk of the court in which his petition is pending, an affidavit showing that any defend- ant resides or hath gone out of this state, or on due inquiry can not be found, or is concealed within this state, so that process can not be served upon him, and stating the place of residence of such defendant, if known; or that, upon diligent inquiry, his place of residence can not be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, and if there is no newspaper published in his county, then in the nearest newspa- per published in this state, containing notice of the filing of the petition, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case, and a description of the premises described in the petition; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose j^lace of residence is stated in such affidavit. The certificate of the clerk that he has sent such notice in pursuance of this section, shall be evidence. (^) a. The notice required in the preceding section may be given at any time after the filing of the petition, and shall be published at least once in each week for four successive weeks, and no default or proceeding shall be taken against any defendant not served with summons, and not appearing, unless forty days shall intervene between the first publication, as aforesaid, and the first day of the Icrm at which such default or proceeding is proposed to be taken. C) 6. It is error to order a sale of land by an aduiinistrator, when (i) Botsford vs. O'Connor, 57 111., 72; Donlin vs. Hettinger, 57 III., ^ tS ; Clark vs. Tiiompson, 47 111., 27; Johnson vs. Baker, 38 111., 98; Johnson vs. jihnson, 30 111., 215; Matthews vs. Hoff, 113 111., 90. (2) Botsford vs. O'Connor et al., supra. (3) Hurd's R. S. Chap, 3 I 103. (4) Hurd's R. S., Chap. 3, ^ 104. IGO SALE OF REAL ESTATE TO PAY DEBTS. [CTT. XTTl. the notice has bcca published only for a period less than the time specified in the statute.(') c. Publication in any ncwipapor ptiblished at the county seat, will meet the re(piircnn'iit of the statute.(^) 12. Affidavit of non-uesidexce. — The affidavit required by the statute, showing; the no:i-residence of the defendants, may be made by any person having the requisite knowledge : the affi- davit may be made upon information and beiief.(^) o. It is not necessary that the affidavit should be entitled in the ca.so. It will be sufficient if it states the necessary facts, and is filed in the case, even if not entitled at all and without a caption. ('') b. It is not essential that the name of the county in which th? court is held, should be naiued in the notice — the name of the county and state may be inferred from the fact that the notice was published in the county ii!tenik'd,(^j Nor is it uece.>sary to specify any particular day of the terui u^ion which the petition will be presented. In determining the suffi(^ieucy of a notice, courts will consider whether a reasonable person, in the exercise of his ordinary facul- ties, on reading the notice, would be apprized by it, in what court, and at what time the petition would be presented. C^) Where notice does not specify any day of the term, petition may be presented on any day of the term.('') 13. Where decree shows notice. — Where in the decree it appears that notice of the pendency of the proceedings was given to the defendants, according to the provision of the statute, such a re(;ital will conclude the defendants, unless this recitation is contra- dicted by other portions of the record. (^) And such a recital is not overcome, in a collateral proceeding, by the production of a print- (:) Monahon et al. vs. Vandyke, 27 111., 154 ; Gibson vs. Roll, 30 111., 172 ; Madden vs. Cooper, 47 111., 359. (2) Stcwe et al. vs. Kimball et al., 28 111., 106. (3) Rowand et al. vs. Carroll et al., 81 111., 224. (4) Harris vs. Lester et al., 80 111., 307. (5) Moore et al. vs. Neil et al., 39 111., 257. (6) Finch vs. Sink, 46 111., 169; Goudy et al. vs. Hall, 35 111., 313; Mad- den vs. Cooper, 47 111., 359 ; Hobson etal. vs. Ewan, 62 111., 147. (7) Cromine vs. Tharp, 42 111., 120; Shoemate vs. Lockridge, 53 III ,503. (81 Andrews vs. Bernhardi, 87 111., 365; Uovven et al. vs. Bond et al., 80 III..3.S1; Botsford vs. O'Connor, 57 III, 72 ; Harris vs. Lester, .y/z/'ra,- Mickel vs. Hicks, 19 Kansas, 57S; Monk vs. Home, 38 Miss., 100; Mathews vs. Hofl", 113 III., 90. en. XTTT.] SAT.E OF P.EM. F.f^TATE TO PAY DEBTS. lOl er's certificate, from the files in the cause, showirif^ defective and insufficient notice. In such a case, it will be presumed tlitvt evi- dence of the publication of a legal notice was before the court.(') 14. Parties must be before the court. — Unless the mode pointed out by the statute for bringing the parties interested before tlie court is pursued, there will be such a want of jurisdiction as will vitiate the order of sale.(^) a. Where the court fails to obtain jurisdiction of the persons of the defendants in some manner known to the law, a decree licensing the administrator to sell lands of the deceased to pay debts, is void, and may be questioned in both direct and collateral proceedings. (^) b. On the other hand, where by proper averments in the peti- tion filed in court, the court had jurisdiction of the subject matter, and the record showed jurisdiction of the parties by legal service of process or by publication, it matters not how erroneous the findings, judgments and decrees of a court of general jurisdiction may bo, when drawn in question collaterally. They can not be questioned collaterally for mere irregularities,(^) Courts will not overturn titles acquired in good faith upon mere technical grounds. (^) c. In all collateral })roceediugs, the presnmj)tions of the law in favor of jurisdiction of the person where courts of general jurisdic- tion have assumed to adjudicate, are liable to be rebutted; and when the record shows service which was insufficient, and there is no finding by the court, from which it may be inferred that there was other service, or appearance, then the presumption that the court had jurisdiction of the person, is rebutted, and it must be held that the court acted upon the insufficient service. (^) 15. Practice. — Such application shall be docketed as other causes, and the petition may be amended, heard or continued for notice or other cause, and the practice in such cases shall be the same as in cases in chancery. The court may direct the sale of such real estate, disincumbered of all mortgage, judgment or other money (i) Sloan vs. Graliam et al., 85 111., 26 ; Hobson et al. vs. Ewan, 62 111., 146; Moore vs. Neil, 39 111., 256; Ki gour vs. Gockley, S3 111., 109. (2) Herdman et al. vs. Short, iS 111., 59; Clark \s. Thompson, 47 111., 25; Fell vs. Young, 63 111., 106. (3) Morris et al. vs. Hogle et al., 37 111., 150; Herdman et al. vs. Short et al., supra. (4) Hobson et al. vs. Ewan, supra; Goudy et al. \s. Hall, 36 111. 313 ; Moore et al vs. Neil et al., supra ; Iverson et al. vs. Loberg, 26 111., 179. (5) Finch vs. Sink, 46 111., 169. (6) Clark vs. Thompson, supra; Donlin vs. Hettinger et al., 57 111., 348. 1G2 SALE OF REAL ESTATE TO PAY DEBTS. [CH. XIII. lii'iis that are due, and may provide Ibr the satisfactiou of all such liens out of the proceeds of the sale, and may also settle and adjust all equities and all questions of i)riority between all parties inter- e-;ted therein ; and may also investigate and determine all questions of conflicting or controverted titles arising between any of the parties to such proceeding, and may remove clouds from the title to any real estate soup-ht to be sold, and invest purchasers with a good and indefeasible title to the premises sold. The court may, with the assent of any moi'tgagee of the whole or any part of such real estate, whose debt is not due, sell such real estate disincumbered of such mortgage, and provide for the jiayment of such mortgage out of the proceeds of such sale ; and may also, with the assent of the person cjititled to an estate in dower, or by the courtesy, or for life or for vears, or of homestead to the whole or in part of the premises, who is a party to the suit, sell such real estate with the rest. But such assent shall be in writing and signed by such person, and filed in the court wherein the said proceedings are pending. When any such estate is sold, the value thereof shall be ascertained and paid over in gross, or the proper proportion of the funds invested and ihe income paid over to the party entitled thereto during the con- tinuance of the estate. (^) a. If the administrator files his petition and has the cause dock- eted at the term named in his notice, there is no doubt it would be competent for the court to continue the cause to a subsequent term, and then grant an order to sell.(^) b. A\'here in a partition suit the land was reported by the com- missioners not susceptible of a division, and ordered sold, it is proper vor the court where the matter is pending, to decree the payment of debts of the ancestor which have bceu allowed iu probate and are a lien upon the land.(^^j 16. Guardian AD LITEM appointed. — When it appears that any of the persons required to be made parties defendant, who have been served with summons or notified as aforesaid, are minors, under the age of twenty-one years, if males, or eighteen years, if females, without a gu u'dian resident in this state, or are persons (i) Hiiro's R. S., Chap. 3, § 100; Newell vs. Montgomery, 129 III., 58. (2 1 Schnell et al. vs. Chicago, 38 111., 382. (3j Labad'.e et al. vs. Hewitt, 85 111., 341 ; Wheeler vs. Dawson, 63 111., 54. Cir. XIFT.] SAT.E OF P.EAL ESTATE TO PAY DEBTS. ] G3 having conservators, or where sucli guardian, if any, or conservator, shall not be personally served with suintnons or shall not appear, the court shall appoint a guardian ad litem, who shall appear and defend in behalf of such minors, and be allowed such compensation as may be fixed by the court. ( ' j a. The failure to appoint a guardian ad litem, and require an answer by him, is such error as, in a direct proceeding by appeal or writ of error, would cause a reversal of the proceedings ; yet, if the court had acquired jurisdiction of the subject matter by the filing of a petition containing proper averments, and by such notice to the infant defendants, as the law requires, a sale made under its decree would be sustained in all collateral proceedings. (^J 6. The answer of a guardian ad litem is not sufficient foundation for an order of sale. The record should show further that the court heard i)roof, which satisfied it of the truth of the allegations of the |K'tition.(^) c. When the service is insufficient, jurisdiction cannot be given of the minors by the appearance and answer of their general guard- ian, nor by the appointment of a guardion ad litem, and his answer for such minors — as to them, a decree in such a case is a nullity. C) Nor can the appearance of the regular guardian for such minors confer jurisdiction of the minors.(^) Where sufficient service has been had upon minors, the faikireof a guardian ad litem to answer for them does not dein-ive the court of its jurisdiction, (^j . but it is error for the court to enter a final decree against such minors, without first having on file the answer on their behalf, of the guardian ad litem.C) d. The appointment of a guardian ad litem is something more than a mere form. The rule is inflexible in this state, that the guardian ad litem shall not only file his answer as required by the rule of the court, but attend at the trial of the cause, and make a (i) Kurd's R. S., Chap. 3, ^ 105. (2) Gage et al. vs. Shroeder, 73 111.. 44; McDaniel vs. Correll, 19 111., 226; Harris vs. Lester et al., 80 111., 308; Herdman et al. vs. Short et al., 18 111., 59! (3) Fridley et al. vs. Murphy, 25 111., 146. (4) Donlin vs. Hettinger et al., 57 111., 348; Clark vs. Thompson, 47 111., 25; Greenman et al. vs. Harvey, 53 111., 386. (5) Id. (6) Goudy et al. vs. Hall, 36 111., 313. (7) Rhoads vs. Rhoads et al., 43 III., 239. JGt SAT.E OF HEAT. ESTATE TO PAY DEi;!?;. [lTT. XIIJ, defense of tlie interests of the infant, us vigorous as the nature oi the case will admit. It is his special duty to submit to the court, for its consideration and decision, every question involving the rights of the infant affected by the suit. In no case, can a default be (,'ntcred against a minor. Nothing can be admitted as against an infant, by the guardian or othei-s, and the record must show that evidence was heard, and it must furnish proof to sustain a decree against him, whether he is defended by his guardian or not.(,^j 17. Hearing — decree of sale — overplus. — Upon hearing the cause upon the i&sues formed or taken, the court shall hear and examine the allegations and proofs of the parties and of all other persons interested in the estate, wlio may appear and become parties; and if, uixin due examination, the court shall fin 1 tliat the executor or administrator has made a just and true account of the condition of the estate, and that the personal estate of the decedent is not snfiicient to pay the debts against such estate, tiie court shall asc(!rtain, as nearly as can be, the amount of deficiency, and how much of the real estate described in the ])Gtiti(m it is necessary to sell to pay such deficiency, with the expenses of administration then due or to accrue, and make a decree for the sale thereof: Providal, th'it where any housss and lo!:s, or otlior real estate, arc so situat<'(l that a part thereof can not be sold Avithout manifest prejudice to the heirs, devisees or owners, the court may order the sale of the Avholc or such part as it may deem best, and the overplus arising from such sale, shall be distributed among the heirs and devisees, owners, or snch other jiersons as nay be cntithd thfretn.,^ 18. Assignment of dower. — Whenever application is made to a county court for leave to sell real estate of a deceased person for the payment of debts, or for the sale of real estate of any ward, as authorized by law, and it appears that there is a dower and home- stead, or either, interest in the land sought to be sold, such court may, in the same proceeding, on the petition of the executor, administra- tor, guardian or conservator, or of the person entitled to dower and homestead, or either, therein, cause the dower and homestead, or either, to be assigned, and shall have the same power and may take like proceeding therefor as hereinbefore provided for the assign- ment of dowet '. (i) Rhoads vs. Rhoads et nl., 43 111., 239; Sconce et al. vs. Wliitnev. 12 111., 150; Enos vs. Capps, lb., 255; Stark et al. vs. Brown etal., loi 111., -95. (2) Hurd's R. S., Chap. 3, I 106. (3) Hurd's R. S., Chap. 41. I 44 ; Walker vs. Doane. 108 III., 236. c'tt. xrit.] sat-e of real estate to pay debt55. 1 05 19. When ddwer cannot be assigned without injury. — Wlieii the estate consists of a mill or other tenement, which cannot he divided without dam:i'^e to the whole, and in all cases where the estate cannot be divided without great injury tiiereto, the dower may be assii^ned of" the rents, issues and profits thereof, to be had by the person entitled to dower as tenant in common with the owners of the estate ; or a jury may be empanneled to inquire of the yearly value of the dower therein, who shall assess the same accordingly, and the court may thereupon enter a decree that said premises be sold free of claim for dower, and that there be paid to the person entitled to dower during life, on a day to be named, by the purchaser at the sale, the sum so assessed as the yearly value of dower, and may make such sum a lien upon the premises, or cause the same to 1)6 otherwise seen red. (') 20. Dovvi':r may be assigned together. — The dower need not be assigned in each tract separately, but may be allotted in a body out of one or more of the tracts of land, when the same can be done without prejudice to the interest of any person interested in the premises. (^) 21. H )MESTEAD SALE. — The Surviving husband or wife shall h ive ihe homestead or dwelling house, if he or she desires, and such allotment shall not affect his or her estate of homestead therein ; but if the dower is allotted out of other lands, the acceptance of such allotment shall be a waiver and release of the estate of homestead of the person entitled to such dower, and liis or her children, unless it shall be otherwise ordered by the court.(^) Should the commissioners appointed by the court report that the premises are of such a nature th:it a iiomestead of the value of ^ 1 ,000 cannot be set off, as in case of a building of much greater value than the exemption allowed by law, the county court, in the exercise of its chancery [)owers in the settlement of estates, (") may, for the purpose of the enforcement of the lieu of creditors of the estate against such real (i) Kurd's R. S., Chap. 41, ^ 39. (2) Hurd's R. S., Chap. 41, § 36; Rovvand vs. Carroll, 81 111., 224; Kenley vs. Bryan, no 111., 652. (3) Hurd's R. S., Chap. 41, | 37. (4) VVadsworth vs. Connell, 104 111., 369 ; Winslow vs. Leland, 12S III,, 304; Millard vs. Harris, 119 111., 1S5; Shepherd vs. Spremout, in 111., 631. lG(i SAT.E OF REAL ESTATE TO PAY DERTS. [CH. XIII. estiite, or Mc2;ainst so much as exceeds the excmptiou, order a sale of tlie wliole estate, free from the homestead rights, and the payment of the amount of the exemption to the person entitled thereto. The decree should ])rovide that no sale of the premises should be made unless a trreater sum than $1,000 is bid therefor; and should no greater sum be offered at a sale, the decree of the court should be modified, and the premises be released from present claims of cred- itors.!^^) Any judicial sale of premises in which is an estate of homestead, without the observance of these preliminaries, is void (^) 22. Court may order land platted. — That in any proceed- ing in any court of record in this state, by executors or administra- tors, for the sale of lands of decreased persons, or by guardians, for the sale of lands of their wards, or for partition of lands, when such lands are to be sold in parcels, or actual partition thereof shall be made, it shall be competent for the court to order such executor or administrator, guardian, master in chancery, special commissioner, or other officer or person authorized to sell the lands in question in any such proceeding, or commissioners authorized to make partition of such lands, to cause such lands to be surveyed and subdivided, and a map or plat of the same to be made, showing the lots or pur- cels of such subdivision or partition designated by numbers or let- ters ; which map or plat shall be acknowledged by the person or persons so causing the same to be made, in like manner as is now required by law in cases of plats or maps made by owners of lands, and shall, in like manner, be certified by the surveyor or engineer making the same; which certificate shall contain, among other things, an accurate and definite description of the lands so sub- divided or partitioned; and such map or plat shall be submitted to the court for his approval, and if appro'/ed by the court, shall be recorded in the recorder's office of the county or counties in which the lands in question in any such proceeding, are situate. (^) 23. Decree which directs a sale of the land named in the peti- tion is sufficiently certain. C) (i) Hurd's R. S., Chap. 52, ? 8 & 9. (2) Hartwell vs. McDonald, 69 111., 293; Ilartm.iii vs. Schultz, loi III., 437. (3) Hurd's R. S., Chap. 109. 'in. (4) Slow et al. vs. Kimball et al., 28 111., 93. CTT. XIII.] SALE OF REAL ESTATE TO PAY DEBTS. 1G7 24. Extent of salk. — Uiuh r the law, the court is only aiithoi'- izcd to license a sale of" so mucli real estate as is necessary to pay the debts not shown to he provided for by the personal estate. and it is error to license the sale of so much as the executor mny deem for the best interest of the estate.(^) A decree which author- ized a sale of the wiiole of the lands of the deceased, or so much thereof as would pay the debts found by the decree to be unprovided for, was held to be correct. (^) 25. Power of the court limited. — The power to order a sale of land to pay debts of a decedent, is given by statute, and is tlicrefore limited to the powers expressly delegated by that statute, or given by implication. In such a proceeding, the court has no power to interpret the will of the deceased, to excuse the executors IVom the performance of any duty imposed by the will, nor to order a sale of real estate for the maintenance of the widow and family. O But where the heir has alienated a part of the land, the court may order the residue to be first sold.(^} 26. Power to order sale judicial. — An act of the legisla- ture authorizing the sale of the land of a deceased person to pay debts which are thereby assumed to be due, without providing that such debts shall be judicially ascertained, is an invasion of the powers of government expressly conferred by the constitution, upon the judiciary department of the state government, and unconstitu- tional. The right of inquiring into and determining facts between debtor and creditor, belongs to the judicial, and not to the legisla- tive department of the government. (^j 27. Not in chancery. — A proceeding to subject the lands of a decedent to the payment of debts is a statutory, and not a chancery proceeding ;(^) therefore, in reviewing the decrees rendered in such proceedings, the supreme court will presume there was proof of indebtedness before the court to sustain the decree, although the (i) Morris et al. vs. Hogle et al., 37 111., 150. (2) Bowles et al. vs. Rouse, 3 Gil., 409. ^3) Bennett et al. vs. Whitman et al., 22 111., 44S. (4) Eddy vs. Traver et al., 6 Paige Ch., 521. (5) Cooley's Cont. Lim., 107; Lane et al. vs. Dorman et al., 3 .Scam., 23S; Rozier vs. Fagan et al., 46 111., 404; Davenport vs. Young, 16 III., 548. (6) Moline Water Power Manf. Co. vs. Webster, 26 111., 233. 108 ;,\LE OF r.EAL ESTATE TO PAY DEHTS. [OTT. T.Ur, evidencu was not preserved in the record. (^; Such a proceeding is a proceeding in rem.O 28. Administrator no power to remove incumbrances.— An administrator has no power to remove incumbrances he finds u[)on the hinds of the intestate. He must sell them as he finds them.(^) Nor can an administrator maintain a bill, the purpose of which is to remove a cloud from the title of deceased to the real estaUi, prei)aratory to selling the same to pay debts. The lands descend to tlie heir, subject to the payment of debts, and may afterwards be divested by a decree and sale of the administrator. The adminis- trator therefore takes neither estate, title nor interest, in the realty- he takes simply a power, and nothing more. He must take it as he finds it.(*) He derives all his power from the statute, and it only authorizes him to sell the lands of which his intestate died seized. A conveyance in fraud of creditors being binding, inter jxiHles leaves no estate, legal or equitable, in the grantor.(5) 29. How to proceed. — If it becomes necessary to exjiose the property so incumbered or clouded to sale, for the j^ayment of debt's, the administrator should obtain an order to sell it, and, to prevent the anticipated sacrifice, the heir might enjoin the sale until he could make an elfort to set aside the incumbrance or cloud. We see no other course, as the law now stands, which could be adopted, to prevent the disastrous consequences likely to result from a sale of pro})erty, the title to which is clouded ;(^) but a creditor can not maintain such a suit, unless the title to the estate is clouded by fraudulent conveyances. C;* (i) Shoemate et al. vs. Lockridge, 53 111., 503; Wolf et al. vs. Ogden, 66 111., 224. (2) Mickel vs. Hicks, 19 Kansas, 578. (3) Sebastian vs. Johnson, 72 111., 282; Gridley vs. Watson, 53 111., 186; Stark vs. Brown, loi 111., 395. (4) Phelps vs. Funkhouser, 39 111., 402; Cutter vs. Thompson et al., 51 111., 390-531 ; Le Movne et al. vs. Quiniby et al., 70 111., 400; Smith et al. vs. McConnell et al., 17 111., 135; Shoemate et al. vs. Lockridge, supra; Ryan- vs. Duncan, 88111., 144; Choteau vs. Jones, 11 111., 300. (5) 15eebe et al. vs. .Saulter et al., 87 111., 518; Martin vs. Martin, i Vt., 91; Van Wicklevs. Calvin, 23 La. An., 205; Harding vs. LeMoyne, 114 111., 65. (6) Phelps vs. Funkhouser et al., 39 111., 401. (7) Le Moyne et al. vs. Quimby etal., supra. •Note— By the rassage of the amendment of 1887, permitting county coni-ts. upon appHcn- tionB to anil lands for payment of debts, to adjust equities and remove clouds upon title, ail questions of conflicting titles affecting lands of decedents may now be settled in the county court —llurd's R. S., Chap. 3, § 100; NeweU vs. Monlfiomery, 129 lU., 58; Bowers vs. Block, U9 III., 424. err. xni] sale of jikat, est\tk to pay jjkt.ts. ](]d a. A creditor of the deceased, wlio lias Iiad his claim allowed ill prol.'ate, wiiere there is no persoii.i! estate with which to discharge such ch'.iiu, may m.uiKaiii a bill to set aside a fraudulent and co'or- able conveyance of ij.ii estate made by the decreased in his lifetime. (^) 30. Jurisdiction of a court of changrky to order sale OF LAND, — A court of cliancevy has no ori^-inal jurisdiction to order the sale of real estate to })ay deou^, or for any other purpose, so as to bind the infant's legal estate. The power is derived from legis- lative authority, and does not exist except in cases where tlie statute expressly confers it.(^) The same court which pronounced tlie above rule, has since, when uisi ussing the same question, said that the doctrine as above stated, has for its support, tlic best authorities, and its correctness is not to be questioned; but its aj)plicaLlon is limited to proceedings adverse io the interests of the infants owi!fii«- the estate. (^) Courts of chancery, howove", having obtained jurisdiction of an estate for any other proper purpose, as for the pur])ose of construing a will and advising the execatcr'; as to their duties, may in the same proceeding, enter a Naliu decieij for a sale of the real estate to J lay debts. (*) 31. Dr-TR' E OF COUNTY COURT COI.IATSRAL PR0CE:;I)- INGS. — As the jurisdiction of the county court over the sale of real estate to pay debts of deceased pcio^ns, is concurrent with, and as large as that of the circuit court, its decrees, in a collateral proceed- ing, can only be attacked for want of jurisdiction. Mere errors can only be urged in a direct projoeding to reverse.(^) 32. Defenses. — The heirs, devisees or alienees, when called before the court, may show in defence of the application for leave to sell lands to pay debts, that iiu debts exist; or they may show anything which will reduce the amount of the debt, in order to lessen the quantity of laud which it may be necessary to sell. The general rule to direct these inquiries, is the following : Whatever defense an administrator niay be allowed to make against the claims or demands of creditors, may be made by any person interested in the realty against an application of this nature. So, if the adniin- (i) /(/.,• McDowell vs. Corlirnii, 1 1 III., 31; Chateau vs. Johnson, Z^/., 300; Beebe et al. vs. Saulter et al., 87 Ih., 51S; While vs. Russell et al., 79 111., 155. (2) Whitman vs. Fisher, 74 111., 147. (3) Allman et al. vs. Taylor et al., loi 111., 1S5. (-1) Bridges vs. Rice, 99 111., 414. (5) Moffatt et al. vs. Moffatt, 69 111., 641 ; Rhorer on Judicial Sales, 122. 170 SAI.K OF REAL ESTATE TO PAY DEBTS. [CH. XTIl. istrator has recolved mesne profits enough to pay the debts, it is a good dcfcnse.(') a. An order to sell real estate, will not be made, unless it is shown that debts contracted by the deceased in his lifetime, remain unpaid.^) Where an administrator, there being no debts of the deceased in existence, created debts, by making costs of administra- tion, and obtained an order of sale to meet such only, the order was lield to be erroneous and void.(^) The fact that the debts claimed to exist, had not been presented r.nd allowed by the county court, is no ground upon which to imi^each a decree of sale : if they are shown to exist and are bona fide, it is suuicient. Nor does it matter that such debts were secured.C') But where administration was granted in this state upon the estate of a person who died intestate in the state of Kentucky, where letters of administration had l)reviously been granted, it was not sufficient for the resident administrator to show that debts existed in that state only, to entitle him to an order of sale. The creditors there should have presented their claims to the administrator and court here, and had them allowed. Better evidence of their existence than the certificate of the Kentucky administrator, was held necessary. (^) Where ancillary administration is taken in this state upon the estate of a person domiciled elsewhere, and a petition filed to sell land to pay claims allowed here, it is not necessary to show that the personal estate at the domicil of the deceased is exhausted, to justify a decree to sell the real estate. (^) 6. If an administrator having no, personal assets, voluntarily l)ays debts which are barred by the statute of limitations, he can not have a sale of land for his reimbursement.(') But the admin- istrator may pay any just debts due by the intestate, and have knds sold to reimburse himself, even though there be no other debts.(^j (i) Dorman et al. vs. Lane, i Gil., 143; Stone vs. Wood, 16 111., 177; Helm vs. Cantrell et al, 59 111., 524; Goeppner vs. Leitzelmann, 98 111., 409; Ward vs. Durham, 134 111., 195; Young vs. Wittenmyre, 123 111., 303. (2) Dorman et al. vs. Tost et al., 13 111., 127; Wood vs. Byington, 2 Barb. Cli.,3b7. (3) Fitzgerald vs. Glancy, 49 111., 465; Dorman vs. Tost et al., supra; Walker et al., vs. Diehl, 79 111., 473; Rhorer on Judicial Sales, 174. (4) Willianjs vs. Riiodes et al., 8r 111., 571. (.s) Hobson et al. vs. i ayne, 45 III., 158; Lowe vs. Bartlett, 8 Allev., 259. (6) Rosenthal vs. Remick, 44 111., 202. (7) Giiliiand vs. Rea, 9 P?iige, 66; Campau vs. Gillett, i Mich., 416. (8) Guodbody et al. vs. G.udbody et al., 1^5 111., 456. C'll. XTir] SALE OF RKAL ESTATE TO PAY DEBTS. 171 c. The judgment of tlie county court allowing the debt of a creditor, against an estate, is, as between the creditor and the ad- ministrator, conclusive, until reversed or impeached for fraud: but when the administrator applies for leave to sell the real estate for the purpose of paying such judgment, it is not conclusive as against an heir, and he may contest the application, unless he has been made a party to the judgment, by joining in taking an appeal from it. An heir is not privy to a judgment against an administrator. A judgment against an adminl. ..ator, is ou]y prima facie evidence of the existence of a debt against an estate, as against the heir;(^) but heirs should contest in the name of the administrat()r.(^) There is no privity between the heirs of an intestate, and the administrator of his estate.(^) d. A judgment rendered against the administrator of an estate in a court of the state where he was appointed, to be paid there in due course of administration, is no evidence of indebtedness against another administrator of the same decedent in this state, for the l)urpose of affecting assets received by the latter under his adminis- tration. The administrators are not regarded as in privity with each other; and where it was sought to sell lands in this state to pay a claim allowed upon such a judgment, it was refused.(*) e. Special statutory powers affecting real estate, must be strictly pursued and so appear upon the face of the proceedings, or the power is not well executed. (^) A court ordering a sale of real estate, has no power to direct payment to be made in any other than legal currency of the country .(^) The decree should specify the terms of sale.(") 33. Time of payment. — The provision in Section 108, per- (i) Mason et al. vs. Bair, 33 111., 194; Helm vs. Cantrell et a)., 59 III., 524; Stone et al. vs. Wood, 16 111., 177; Gibson et al. vs. Gibson et al., 82 111., 61 ; Moline Water Power Manf. Co. vs. Webster, 26 III., 233 ; Hopkins et al. vs. McCan, 19 111., 113; Marshall et al. vs. Rose, 86111., 374; McConneil \'s.Smitii,23 lll.,6ii ; Goeppner et al. vs. Leitzelmann, 08 111., 40-1 ; O-i'-ocjdvs. Manhattan Co., 3 Cowan, 612; Bailey's Exrs. vs. Staley, 5 Gill & Johnson, 432; McGarvey vs. Darnall. 134 III., 367. (2) Motsinger vs. Coleman, 16 111., 71; Gibson vs. Gibson, 82 III.. 61. (3) Hopkins et al. vs. McCan, supra; McGarvev vs. Darnall, supra. (4) Rosenthall vs. Renick et al., 44 III., 202; Judy et al. vs. Kelley, 11 III , 211; Story's Conflict of Laws, \ 522; Stacy vs. Thrasher, 6 Howard, 44; Low vs. Bartlett, 8 Allen, 259; Biyelow on Estoppel, 256; Wernse vs. Hall, 101 III., 423; Ward vs. Dnrham, 134 111., 195. (5) Reynolds vs. Wilson et al., 15 111., 394; Donlin vs. Hettinger et al., 57 III., 34R; Smith et al. vs. Hileman, i Scam., 323; Fell vs. Young, 63 III., io6. (6)' Id. (7) Moline Water Power Manf. Co. vs. Webster, supra. 172 SAT.E OF REAT. ESTATK TO PAY DEBTS. [CH. XHI. mitting a sale of real estate made by an administrator, to be made upon not less than six nor more than twelve months, applies only to cises where the decree is silent as to the credit to be given. The decn-ce may direct a longer time or reqnire part of the payment to be made for cash.(^) ?A. I^lMiTATioNs. — There is no statutory limitation of the time beyond which limit decrees for the sale of real estate to pay the debts of a deceased debtor will be refused, yet the supreme court of Illinois has repeatedly held, that by analogy to the statute of limitations relating to judgments, and under certain circumstances to bringing the action of ejectment, the period of seven years sho.ild bo adopted by the courts, as the time within which the application should be made. But while this is the general rule where the delay is unexplained, every case depends much upon its own circum- stances, and if the delay is satisfactorily explained, the mere lapse of time is not a reason why the order of sale should not be madc^ a. But if it ajipears that such lapse of time has been caused by necessary delay in adjusting the claims against the intestate, and the lands remain in the same condition as when the decedent died, the mere lapse of time will not bar the application.^ ) The evidence heard 1)y the court to explain the delay, should be preserved in the record. C) 6. Where at the time of the death of the intestate, the real estate was the homestead of the family, and the period of thirteen years elapsed before the particular estate was terminated, this fact was held to sufficiently explain the delay in asking a sale of the real estate, and to avoid the limitation fixed by the supreme court.(^) 35. Sale, report and confirmation. — No lands or tene- ments shall be sold by virtue of any such order of the county court, unless such sale is at public vendue, and between the hom-' of ten o'clock in the forenoon and five o'clock of the afternoon of • (i) Reynoldsvs. Wilson et al., 15 III., 394; Moffitt vs. Moffitt,69 111., 641. (2) Ikirsen et al. vs. Goodspeed, 60 111., 278; Bishop et al. vs. O'Connor et al 69 111,, 432 ; McCoy vs. Morrow, 18 111., 519; Myer et al. vs. McDougal, 47 Ili'., 278; Heirs of Langvvorthy vs. Biiker, 23 Ill.,484; Fitzgerald vs.G'.u - cy, 49 111.. 465; Wolf et al. vs. Osrden, 66I1I., 224; McKean vs. Vick. loS iil , ■173; Fnrlnng vs. Riley, 103 111., 628. ^, , , n • (3) Moore et al. vs. Ellsworth et al, 51 111., 308; Clark et al. vs. Hog e et al.,'52 111.. 427. (4) Wolf et al., vs. Ogtlen, si/pra. ' (5) /'^- CH. XIII.] SALE OF REAL ESTATE TO PAY DEBTS. 173 the same clay, nor unless the time, place and terms of holding such sale, were previously publislied for the space of four weeks, by putting up notices thereof in at least four of the most public places in tlie county where such real estate shall be sold, and also by caus- ing 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, sliall sell the same contrary to the provisions of this act, he shall foi'feit 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 parson 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 administra- tor 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 mortgage, or sale mortgage, on the premises sold, to secure the pay- ment of the purchase money. It shall be the duty of the executor or administrator making such sa?e, on or before the first day of the next term of the court thereafter, to file in the office of the clerk of sa'd court, a complete report of said sale, giving a description of the premises sold, to whom, where, and upon Avhat 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, 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 resold. (*) Until the passage of the foregoing section, in 1875, no report of the sale to the court, and no confirmation of the sale was necessary, although by the usual practice, sales were generally reported to the court rendering the decree.(^) A confirmation of a sale of a tract of land not described in the petition, is void, and confers no rights upon the purchaser.(^^) (i) Hurd's R. S., Chajx 3, § 108; Hart vs. Hart, 39 Miss., 221. (2) Stowe et al. v.s. Kitnbali et al., 28 111., 93 ; Moore et al. vs. Neil et al., 39 111., 256. (3) Means et al. vs. Means, 42 111., 50; Hig^genbotham et al. vs. Black- ledge et al., 54 III., 316. 11 J 74 SALE OF REAL ESTATE TO PAY DEBTS. [CTI. XIII. a. An attorney employed by an administrator to procure a decree for the sale of renl estate to pay debts, is not, by virtue of such employment, authorized to make a sale under the decree and receive the purchase money. (') 6. The authority given an administrator to sell real estate to ])ay debts, is a personal trust, which he cannot delegate to another : while he may employ an auctioneer for that jiurposC; he must be pres- ent at the sale.(^) c. AVhere, after a decree had been rendered authorizing a sale, the administrator died, it was held that his successor might com- plete the sale.(^) So, where, pending the proceedings to sell land to pay debts, one administrator is removed and another is appointed, the proceeding need not be dismissed, but may proceed in the name of the last administrator.^^'') d. A failure to advertise a sale of real estate by an administra- tor, will not vitiate the sale.{^) e. Where an order of court directs the manner of sale, or the time in which the notice shall be published, such directions must be strictly conformed to.(^) /. The fact that laud sold for less than its real value, is no ground for setting aside the sale.(') g. Requiring a deposit by the bidder of some part of his bid, is no ground for refusing to approve the sale.(^) h. As in all judicial sales, lands or lots sold under these decrees, should be offered and sold in separate tracts. (^) i. The purchase of real estate belonging to the deceased by the administrator, directly, or through another person, at his own sale, is fraudulent pei' se, and it matters not that the sale is made at public auction for a fair price.(^'') This rule is violated, if the administrator (i) Nolan vs. Jackson, 16 II!., 272. (2) Sebastian vs. Jolnison, 72 111., 282; Chambers vs. Jones, 72 111., 275 ; Taylor vs. Hopkins, 40 111., 442. (3) Baker vs. Bradsby et al., 23 111., 632. (4) Steele vs. Steele et al., 8q 111., 51. (5) Hurds's R. S., Ch. 3, Sec. 108 ; Botsford vs. O'Connor et al., 57 111., 72. (6) Reynolds vs. Wilson etal., 15 111., 394; Selb vs. Montague, 102 111., 446. (7) Allen etal. vs. Shepherd, 87 111., 314. (8) /(/. (9) Schnell etal. vs. Chicago, 38 111., 383; Rowand vs. Carroll, 81 III., 224; Kenley vs. Bryan, 1 10 111., 652. (10) Williams vs. Walker et al., 62 111., 517; Coat et al. vs. Coat et al., 63 111., 73; Thorp et al. vs. McCullum, i Gil., 614; Krusc vs. .Steffens et al., 47 111., 112; Miles et al. vs. Wheeler et al., 43 111., 123; Williams vs. Rhodes et al, 81 111., 571; Ebelmesser et al., vs. Ebeimesser et al., 99 111., 541; Borders vs. Murphy, 125 111., 577. [CH. XTII. SALE OF RAI. ESTATE TO PAV DEBTS. 175 becomes interested at any time before a confirmation of the sale, although not until after the property was struck off.{') Such a sale is not void, but voidable only, and if proceedings are not instituted in apt time to set aside the sale, by those having the right to contest the same, a ratification of the sale will be presumed. (^) j. An irregularity in making an administrator's sale of real estate, by failing to comply with the statute, or a failing to give the further bond required iu cases where it is necessary to sell lands to pay debts (ante page 26) will not invalidate the sale. If proper notice is not given of the sale, it can be taken advantage of only on a motion to set aside the sale.(') k. A requirement in the decree that the administrator should report the sale at the next term, does not limit the exercise of the power of sale within that time.(*) I. AYhere, at the first sale the property named in the decree is not all sold, the power of sale is not thereby exhausted, but another sale may be had;(^) but where a sale of sufficient lands to pay all the debts, for the payment of which the sale was ordered, is had, and a report thereof made, the decree is satisfied and the case ended, and the court has no power or jurisdiction at a subsequent term, without a new notice, to order a sale of more land for the payment of addi- tional debts which had been proven against the estate.(^) m. On a motion made to confirm a sale made by an administra- tor, the court can not consider questions raised upon the ap])oint- ment of the administrator, the propriety and legality of the decree directing the sale, nor the legality of debts allowed in probate against the estate. The matters before the court upon such a motion, relate solely to the transactions which take place in the attempt to execute the decree. On such a motion, the court can not go behind the order of sale.(^) (i) Tervvilliger vs. Brown, 5 Hand, (N. Y.), 237. (2) Sloan vs. Gralam e al , 85 111., 27; Bland vs. Muncaster, 24 Miss., 62. (3) Motfatt et al. vs. Mol'fatt, 69 111., 641 ; Harris vs. Lester et al., 80 111., 307 ; Goodbody et al. vs. Guodbody et al., 95 111., 456 ; Wyman vs. Campbell, 6 Porter, (Ala.) 219. (4) iJowen et al. vs. Bond et al., 80 111., 351. (5) Stow et al. vs. Kimball et al., 28 111., 93. (6) Crotnine vs. Tharp, 42 111., 120. (7) Allen et al. vs. Shepherd, 87 111., 314. 17G SAI>K OF REAT^ ESTATE TO PAY DEBTS. [CH. XIII. The failure of the administrator to report the sale to the court will not invalidate the sale.(') 'Mi. Title. — In all judicial sales, of which administrators' sales of real estate of deceased persons to pay debts are instances, the rule of ccurat emptor applies with full force. It is the policy of the law to invest administrators in making sales of real estate under such decrees, with a mere naked power to sell such title as the deceased had, without warranty, or any terms except those im])osed by the law. They are the mere instruments of the law to pass such, and only such title as was held by the intestate.(^) A purchaser, who, at such a sale, buys land to which the deceased had no title, is abso- lutely without any relief, unless a fraud has been practiced upon liim .(') And an admini.strator who enters into covenants of warranty of the title of his intestate, although they are expressed to be made in his character of administrator, does not thereby bind the estate by til - -^'^vf^nant, but becomes personally liable for a breach thereof.!*) 37. Effect on the sale of a reversal of decisee. — The mere reversal of a decree under which an administrator has sold land, docs not divest third persons of the title. If a court has jurisdic- tion over the parties and subject matter, acts performed and rights acquired by third persons under its judgment or decree, and while it remains in force, must be sustained, notwithstanding a subsequent reversal. If the proceedings are erroneous, the error is not to be corrected at the expense of the purchaser who relied upon the order of a competent court.(^) 38. Forgery — fraud — chancery jurisdiction. — Where letters of administration were obtained for the purpose of enforcing the payment of a forged note purporting to have been made by the intestate — the claimant and the administrator being in collusion — and a sale of real estate made for the payment of such claim, it was held a proper case for the intervention of a court of equity to pre- vent the payment of the money realized from the sale of real estate (i) Stowetal. vs. Kimball etal., 28 111., 93; Moore etal. vs. Neiletal., 39 111., 256. (2) Bishop et al. vs. O'Connor et al., 69 111., 432; Bingham et al. vs. Maxey, 15 111., 295; Walden vs. Griclley, 36 111., 523, Bond el al. vs. Ramsey, 89 11!., 29; McConuell vs. Smith, 39 111., 279; Brandon vs. Brown, iu6 111., 519; Tilley vs. Bridges, 105 111., 336. (31 liund et al. vs. Ramsey, supra. (4) Snmner'.s. Williams, 8 Mass., 162 ; Vincent vs. Morrison, Breese, 175. (5) Goudy et al. vs. Hall, 36 111., 313; Guiteau vs. Wiseley, 47 111., 433; Fergus et al. vs.Woodvvorthet al., 44 111., 374; Perkins vs. Fairtield, 11 Mass., 227; Stow et al. vs. Kimball et al., supra; Smith vs. Brittenham, 109 111., 540. CII. Xril.] SALE OF REAL ESTATE TO PAY DEBTS. 177 to the claimant, and direct its payment to the heirs who had been divested of their iuheritance.(^) 39. Conveyances. — All such sales of real estate shall be made and conveyances executed for the same, by the executor or admin- istrator upj)lylng for such order, and shall be valid and eifectual against the heirs and devisees of such decedent, and all other per- sons claiming by, through or under hira 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.(^) a. A person authorized by a decree of court to sell lands and make the conveyance, must execute the power himself. He can not appoint an attorney to execute the deed for him.(^) 6. Conveyances made prior to 1872, which fail to recite the decree of the court, are insufficient, and can not be received in evidence. (^) c. Purchaser at an administrator's sale of real estate under a decree, is only bound to know that the court ordering the sale, had jurisdiction of the subject matter and of the persons of the heirs of the intestate.(^) d. The title of the heirs is divested by the sale, and it is no objection that the deed is made to an assignee of the purchaser. (^) e. Where a purchaser at a sale by an administrator, of real estate, refused to consummate the purchase by giving note with security and mortgage, but did sign a note, the administrator, after having advertised and sold again, recovei'ed the damages caused by such failure to consummate the sale from the tirst purchaser — the signing of the note by the first purchaser, being held sufficient to take the case out of the statute of frauds.C') Where, at such a sale, the purchaser refuses to comply with the terms of sale, no memorandum in writing of such sale having beeu (i) Whitlock vs. McClusky et al., 91 111., 5S2. (2) Hurd's R. S., Chap. 3, ^ 107. (3) Mason vs. Wait et al., 4 Scam., 127 ; Kellogg vs. Wilson, 89 111., 357. (4) .Smith et al. vs. Hileman, i Scam., 323. (5) Myer et al. vs. McDougal, 47 111., 278. (6) Hobson et al. vs. Ewaii, 62 111., 146. (7) Work vs. Covvhick, Si III., 317; Le Moyne vs. HarJing, 132 111., 23. 178 SALE OF TvEAI. ESTATE TO PAY DEBTS. [CH. XIII. signed by him, the administrator can not enforce the verbal contract to purchase, against the purchaser, it being considered within the statute of frauds, as much as if the sale had not been made under the decree of a court coni})etent to render a valid decree of sale.(^) Due precaution, therefore, on the part of executors or administrators, making such sales, will require a memorandum of the sale to be made and signed by the purchaser immediately upon the fall of the hammer. 40. Proceeds of sale. — When real estate is sold, the money arisiuo- from such sale shall be received by the executor or admin- istrator applying for the order to sell, and the same shall be assets in his hands for the payment of debts, and shall be applied in the sauie manner as assets arising from the sale of personal property. (^j 41. Sale of land Nor fully paid for — completing the PLRCHASE. — In all cases where a decedent is seized of the legal or equitable title to real estate, the payment whereof has not been com- pleted, 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 haiids 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 with- out 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 heiis 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 sec- tion shall, in no wise, interfere with the provisions of any last will or tcstament.(^) 42. Power to sell under a will. — Where power is given in a will to the executor to make sale of the lands of the deceased for the purpose of paying debts, or for any other purpose, the exec- utor may make sale and conveyances without first resorting to a (i) Bozza vs. Rowe, 30 111., 198. (2) Hurd's R. S., Chap. 3, § 109; Millard vs. Harris, 119 111., 185. (3) Hurd's R. S., Chap. 3, § no. CIT. XIII.] SALE OF KBXh ESTATE TO PAY DEBTS. 179 court. This power may be given by the testator either expressly or by implication. Where the will directed the lands of the testa- tor to be sold, and the executor to distribute the money, it was held, that the executor was invested with power to sell and convey by implication. (') In all such cases, the power of the executor over the real estate of the testator, depends upon the construction of the will of the deceased, which is the measure of his authority. In all cases, where power is given in any will to sell and dispose of any real estate, or interest therein, and the same is sold and disposed of in the manner and by the persons appointed in such will, the sales shall be good and valid ; and where one or more executors shall fail or refuse to qualify, or depart this life bofoi'e such sales are made, the survivor or survivors shall have the same power and their sales shall be as good and valid as if they all joined in such sales.(^) An administrator with the will annexed, must procure an order of sale like any other administrator, before he can sell land to pay debts, although there may be express power given in the will to the person nominated as executor to make such sale. Such powers do not pass to the administrator with the will annexed. (^) If a testator empower his executor to sell lands for the payment of debts, the purchaser holds them discharged against creditors otherwise, if the power be to sell to pay legacies. (■*) In such a case the title to the real estate vests in the heir, subject to be defeated by the sale; it is otherwise where the devise is to the executor to sell.(^) (i) Rankin et al. vs. Rankin, 36 111., 293 ; Kurd's R. S., Chap. 3, § 96; Bates vs. Woodruff, 123 111., 205; Hale vs. Hale, 125 III, 399. (2) Kurd's R. S., supra; Wardwell vs. McDowell et al., 31 111., 364; ^ ^Ciinefelter vs. Ayers, 16 l\\.,^2g; Pahlman vs. Smith, 23 Ill.,*448; Hamilton vs. Hamilton, 98 111., 254; Ely vs. Dix, 118 111., 477; Chappell vs. McKnight, 108 II!., 570. (3) Hall vs. Irwin, 2 Gil., 176; Lockwood vs. Stradley, i De'. Ch., 298; VVenner vs. Thornton et al, 98 111., 156; Nicoll vs. Scott, 99 111., 529. (4) Hannum vs. Speer, 2 Dallas, 291. (5) Ware vs. Murph, Rice's Law Reports (S. C), 54. 180 wiiJ-s. [on. XTV. CHAPTER XIV, 1. Scope of the chapter. 2. Origin of the testamentary power. 3. Definition. 4. Who may make wills— what may be dispnccrl oF, a. Married women. b. Of sound mind. 5. How made and declared— declaration of witnesses. a. Presence of witnesses. b. Publication. c. Changes must be witnessed. d. Signature of witnesses. e. Executed in foreign state. f. Joint will. 6. What may be disposed of by will— may tot^Hy fT'^Tn!ierIt clindreO. a. Devise may limit the estate to devisee, b. Future acquisitions. 7. Probate of will — custodian to produce iu a. Place of probate. b. Attendance of witnesses. c. Necessity of probate. d. Non-resident witnesses. e. County judge witness. f. Handwriting of deceased witnesses. g. Character of evidence. ]i. What must concur. i. Court witliout discretion. j. When ministerial. k. Competency of witnesses. 8. Appeals — evidence on appeal. 9. Custody of probated will. 10. Issue of letters testamentary — refusal of executor, a. Who may be e.xecutors, etc. b. Effect of appointing creditor. 11. Contesting wills in chancery. a. Who may contest. b. Part only of any will may be contested. c. Burden of proof in such a case. d. Undue influence. e. Practice. 12. Wills proven without tlie state —admission to probate. a. Effect upon properly in tliis stale. CTT. XTV.] WILLS. 181 13. Revocation — not revoked by words. a. Erasure does not revoke. b. Declarations. c. Birth of child or marriage of testator. 14. Nuncupative wills. a. Proof of same — when made. b. .Statute must be complied with. c. Effect on property. 15. Lost will. 16. What law governs bequests. 17. Mortgage of real estate by executors— effect of same. a. Foreclosures. b. Not in fee simple. 18. CoiisLiLiction of wills — intention. a. How intention to be ascertained. b. Extrinsic evidence inadmissible. c. Whole instrument construed together. d. Construction by a court of equity. 19. Where land devised is sold by testator before death, 20. Legacies charged upon real estate. 23. When title vests. T''. Against whom wills are fraudulent. 23. Trustees to receive compensation. 1. Scope of the ciiapti<:r. — The limits of a-single chapter are too contracted to admit of more than a passing notice of the aggre- gation of legal kncvledge which pertains to the execution, probate and construction of wills. Therefore the writer will not essay to enter the field of testamentary jurisprudence any further than may be necessary to present, with conciseness, the statutes and adjudica- tions of Illinois, bearing upon the execution of wills, their admission to probate and contest ia the county and circuit courts, leaving the practitioner and student to seek from the able treatises, to be found in every library, for greater details of the branch of the law under consideration in this chapter. 2. Force of the statute. — The power to dispose of and con- vey land by will, is a statutory, and not a common law power, and must, therefore, depend for its extent, upon legislative intention as indicated and contained in the frame of the act.(^) 3. What a will is. — A will or testament is the legal declara- tion of one's intentions of what he wills to be performed after his death. (^) AVheu the will operates upon personal property, it is (i) Peters et al. vs. Spellman, iS 111., 370; Evans vs. Price, iiS 111., 593. (2) I Inst., Ill; See 5 Probate Reports, 41, for brief of authorities, as to what instruments have been held to be wills; also, 2 lb., 24. 182 wrTj,s. [CH. XIV. sometimes called a testament, and when npon real estate, a devise.(^) 4. Who may make a will. — That every male person of the ao"C of twenty-one years, and every female of the age of eighteen years, being of sound mind and memory, shall have power to devise all the estate, right, title and interest, in possession, reversion or re- mainder, which he or she hath, or at the time of his or her death sliall have, of, in and to any lands, tenements, hereditaments, annu- ities or rents, charged upon or issuing out of them, or goods and chattels, and personal estate of every description whatsoever, by will or testa ment.(^) a. Under the statute as it existed prior to 1861, a married woman could only dispose of her separate property by will ; but that law, in effect, made all her estate her separate property, and since that date, married women have possessed the same testament- ary power as other citizens.(^) b. It is not necessary that a testator possess the highest degree of mental capacity to qualify him for the execution of a will. It is enough that he had sufficient understanding to enable him to know and understand the business in which he was engaged at the time he executed the will. If he have such understanding as would enable him to do any binding act, he can execute a willl^^j If the testator at the time of the execution of the will, was affected by no morbid or insane delusion, as to some one of those natural objects of his bounty, and understood the nature of the business about which he was engaged, of the kind and value of the property devised, and of the persons who were the natural objects of his bounty, and of the manner in which he wished to dispose of his property, he may be said to have testamentary capaclty.(^) Want of mental power must be such as to render the testator incapable of acting rationally in the ordinary affairs of life, or incapable of understanding the effects and consequences of his act.!^*^) Like all other matters relating to the human mind, it is difficult (i) 4 Kent's Com., 555. (2) Kurd's R. S., Chap. 148, Z i; Freeman vs. Early, 117 111., 317; Sc'niieider vs. Manning, 121 111., 376; Campbell vs. Campbell, 130 111., 466. (3) In re TuUer, Deed., 79 111., 99. (4) Brown vs. Riggin, 94 111., 560; Yoe vs. McCord, 74 111., 33 ; Meeker et al. vs. Meeker, 75 111., 260; Rutherford et u.x. vs. Morris et al., 77 UK, 397; Carpenter et al. vs. Calvert, S3 111., 62; Bice vs. Hall, 120 111., 597. (5) Roe et al. vs. Taylor, 45 111., 4^5 ; Trish et al. vs. Newell et al„ 62 Hi., 196. (6) Lilly vs. Waggoner, 27 111., 395. CH. XIV.] WILT.S. 183 to fix any precise, iindevlating rule, by wliich it can he determined when a perscni lias mind and memory. Tlie law luis adopted the rule that, "where persons have arrived at full age, the presumption must be indulged, that the party has the requisite capacity to enter into, and bind himself by all lawi'ul engagements, and, amono" others, may dispose of his property by testament; and to avoid these acts, the presumption must be rebutted by sho'vlng a want of ronicient intellectual capacity to make the agreement or disposition o: his property by will ;(^) but where it is shown that the testator was insane, except at intervals, the proof to establish the will should show that it was executed while the party had a lucid interval. (^) 5. How MADE AND DECLARED. — All wills, testaments and codicils, by which any lands, tenements, hereditaments, annuities, rents or goods and chattels are devised, shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by iiis or lier direction, and attested in the pres- ence of the testator or taslatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of said will, testament or codicil, to admit the same to record : Provided, that no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of said conuty court, shall be deemed sufficient to invalidate or destroy the same ; and every will, testament or codi- cil, when thus proven to the satisfaction of the court, shall, together with the probate thereof, be recorded by the clerk of said court, in a book to be provided by him for that purpose, and shall be good and available in law for iiia granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and cliattels therein and thereby devised, granted and bequeathcd.(^) a. It is not necessary to the proof of a will, that it be signed by the testator in the presf^nce of the attesting witnesses, nor that (i) Meeker vs. Meeker, 75 111., 260. (2) Emery vs. Hoyt, 46 ill., 258. (t,) Murd's R. S.,Chap. 146, 'i 2; Comer vs. Comer, 120 111., 420; Canotsey vs. Canatsey, 130 111., 397. 184 WILT^S. [CH. XIV. they sliould sign it in the presence of each other. If he acknowl- edge its execution in their presence, or does some act, without saying anything, Avhich is equivalent to an acknowledgment of the instru- ment, this will be sufficient.(^) b. Our statute of wills no where makes the publishing of a will necessary, nor any declaration of the party executing it that it is his will.!'*) The execution of a codicil effects the republication of the \vill.(^) c. Any change in a will, after being executed and witnessed, to be effective, must be witnessed with the same formality as the will.(^) (1. If the attestation takes place where the testator might, if he chose, witness the act, though actually in another room, it is to be regarded as taking place in his presence, within the meaning of the statute. (5) e. Where a will is executed in a foreign state, according to its laws, and there admitted to prol:)ate, such will, although not executed according to the laws of this state, will be effective to dispose of estate in this state, when properly certified. (^) /. There cannot be a joint or mutual will in which two persons unito in disposing of property. Such an instrument is unknown to th • Imw-D 6. What may be disposed of by will. — The right of testa- tors to dispose of their real and personal property as they please, by will, is unlimited, provided no perpetuity is created — by which term it is meant that property can not be so devised as to take the subject out of commerce for a longer period than a life or lives, in being, and twenty-one years beyond. They may pass by their own children, if they choose. (^) a. A testator has power to bequeath his proj)erty, real or per- sonal, to one for life, and to provide that such estate should not be (i) Allison vs. Allison, 46 III., 61 ; Yoe vs. McCord, 74 111., 3,2,; Flinn et al. vs. Owen et al., 58 111., iii ; Biattner vs. Weis et al., 19 111., 246. (2) Dickie vs. Carter, 42 111., 376; Holluway et al. vs. Galloway et al., 51 111-, 159- (3) Hatcher vs. Hatcher, 80 Va., 169; See 5 Probate Reports, 445, for brief of authorities. (4) Wolf vs. Bollinger, 62 111., 368; Swinton vs. Bailey, 33 L. T. (English) Rep., 695. (5) Ambre vs. Weishaar, 74 111., 109. (6) Kingsbury vs. Burnside et al., 58 Iii., 311; Shepherd vs. Carriel, 19 I . .V3 ■- Gardner vs. Ladue, 47 111., 211. (7) Lomax on Executors, 3. (S) Rhoads vs. Rhoads et al., 43 III., 239; Waldo vs. Cummings, 45 111., 423; Hale vs. Hale, 125 111., 399; Lunt vs. Lunt, 108 111., 307. CH. XIV.] wrrT.s. 185 liable for the debts of the legatee — the probate and record of such a T/ill is notice to all pcsrsons of the tenure by which the lop:;atco holds the property, and that no credit is to be given him on account of itS'po.ssession.(^) h. The 2)ower of a testator to dispose of Iiis property by avIII, is not limited to that possessed or owned by him at the time of exe- cuting the will, but by the .same instrument lie may dispose of after acquired property. The question in relation to a bequest in such cases, is one of intention, not of power.(') 7. Custodian of will to deliver — penalty. — Any person or persons who may have in his or her possession, any last will or testament of another, for safe keeping or otherwise, shall, immedi- ately upon the death of the testator or testatrix, deliver up said will to the county court of the proper county; and upon a failure or refusal so to do, the county court may issue attachment, and compel the production of the same ; and the person or persons thus with- holding any such will, testament or codicil, as aforesaid, shall forfeit and pay twenty dollars per month, from the time the came nhall be thus wrongfully withheld], to ]je rcc;t)vcred Iby acLion of debt for the use of the estate, by .any ])erson who v/illssue for the same, "in any court having jurisdiction .thereof; and if any ])ersou to v.'iiom a will, testament or codicil lliath 'ibeeu or shall be delivered by the party making it, for GaTe;custody.as aforesaid, shall alter or destroy the same without thje ichvectiou >oT ithe said party, or shall wilfully secrete it for the space of ; six auonins after the death of the testator or testatrix shall beU?no\vn .to'hini or her, the person so offending, shall, on conviction thereof, be sentenced to such punishment as is or shall be inflicted by law, in cases ioflarceuy.(^ a. If any testator or testatrix shall have a mansion house or known place of residence, his or her will shall be proved in the court of the county wherein such mansion house or place of resi- dence shall be. If he or she has no place of residence, and lauds be devised in his or her will, it shall be proved in the court of the county wherein the lands lie, or in one of them, where there shall be land in several different counties ; and if he or she have no such (i) Waldo vs. Cummings et al., 45 111., 423; Hetfield vs. Fowler et al., 60 111., 45; Boyd et al. vs. Strahan, 36 III., 355; Trogdon vs. Murphy et al., S5 111., 119; Burnett vs. Lester, 53 III., 325. (2) Willis vs. Watson, 4 Scam., 64; Peters et al. vs. Spellman, 18 111. ,370; Williams vs. Johnson, 112 111., 61 ; Decker vs. Decker, 121 111., 341 ; Byrnes vs. Barr, 86 N. Y., 210; See 2 Probate Reports, 390, for brief of authorities; Also, 5 lb., 4^?. (3) Hurd's R.S., Chap. 148, I 12. 186 wiT,r,s. X^'"- '^^^ known place of resideuce, and there be no lands devised in sucl: will, the same may be [)rovcd either in the county where the testatoi or testatrix shall have died, or that wherein his or her estate, or th( greater part thereof, shall lie.(')* b. It shall be the duty of each and every witness to any will, testament or codicil, made and executed in this state, as aforesaid, to be and ai)})ear before the county court on the regular day for the probate of such will, testament or codicil, to testify of and concern- ing the exccuti(jn and validity of the same ; and the said court shall have power and authority to attach and punish, by fine and impris- onment, or either, any Avitnes.s who shall, without a reasonable excuse, fail to appear when duly summoned for the purpose afore- said: Provided, the said punishment by imprisonment shall in no case exceed the space of twcuty days, nor shall a greater fine be assessed, for any such default, than the sum of fifty dollars. (^) c. A testator has no power to waive the probate of his last will. If it is to be a will at all, it is indispensable that it should be admit- ted to probate. (^) d. AVhen any will, testament or codicil shall be produced to the county or probate courts for probate of the same, and any witness attesting such will, testament or codicil, shall reside without the limits of this state, or the county in which such will, testament or codicil is produced for probate, or shall be unable to attend said court, it shall be lawful for such county or probate court, upon application of any person asking for probate thereof, and upon such notice to persons interested as such county or probate court may, by special order, direct, to issue a dedimus potestatem, or commission, under the seal of the court annexed to such will, testament or codi- cil, together with such interrogatories in chief and cross interroga- tories as may be filed in said court, or as said court may direct, to be propt)Uudcd to such witness or witnesses, touching the execution of such will, testament or codicil, which commission shall be directed to any judge, master in chancery, notary public, justice of the peace, mayor oi- other chief magistrate of a city, United States consul or vice consul, consular agent or secretary of legation, (i) Kurd's R. S., Omp. 148, g 11. {2) Hiird's R. S., Chap, 148, 'i 3. (31 Harris vs. Douglas et al., 64 111., 466. *NoTE. -There is no law in this state limiting the time ot probating a will to any given number of years. -i?e67ian vs. MitcUer, lU 111., 313; Ha ock vs. R. R., 14C Mass., 155. r:T. xrv.] •\vtt.t,s. 187 autliorizing and requiring him to cause such witness or witnesses to come before him at such time and place as he may designate and appoint, and faithfully to take his, her or their depositions on oath or affirmation, u])ou all such interrogatories as may be enclosed with, or attached to, such commission, and none other, and certify the same, Avlien thus taken, together with the said commission and interrogatories, into the court, out of wliich such commission issued, with the least possible delay. When so taken and returned unto the court, such deposition or depositions shall have the same opera- tion, force and effect, and such will, testament or codicil, shall be admitted to probate in like manner, as if such oath or affirmation had been made in the court from whence such commission issued. Whenever a commission shall issue to any officer, above men- tioned, not by name, but simply by his official title, then the seal of his office, attached to his certificate, shall be sufficient evidence of his identity and official character.(^) e. In all cases where a county judge, or such other person as may be authorized by law to grant probate of wills and testaments, may and shall have become a witness to any will or testament which is required by law to be proved before him as such county judge or person authorized to grant probate, as aforesaid, and the testimony of such witness is necessary to the proof of the same, then, and in such case, it shall be his duty to go before the circuit court of the county in which such will is to be admitted to record, and make proof of the execution of the same, in the same manner that pro- bate of wills is required to be made in other cases. And it shall be the duty of the clerk of the circuit court aforesaid, forthwith to certify such will, proven as aforesaid, to the county court of the county ; and said will sJiall, thereupon, have the same force and effect that it would have had if it had been proven by one credible witness before the county court ; and if there are other witnesses to said will, the county court shall take their evidence in support of said will, as in other cases.(^) /. In all cases where any one or more of the witnesses to any will, testamont or codicil, as aforesaid, shall die or remove to parts unknown to the parties concerned, so that his or her te-^imony can (i) Hiird's R. S., Chap. 148, ? 4, as amended by act of ibSi ; In tlie matter of Noble, 124 111., 266. (2) Hui-d's R. S., Chap. 148, g 5. 188 Wlt,T,S. ^ [CIT. XIV. not be j)rocnrc(l, it shall be lawful for the county court, or other court havini^ jurisdiction of the subject matter, to admit ])roof of the handwriting of any such deceased or absent witness, as aforesaid, and such other secondary evidence as is admissible in courts of justice to establish written contracts generally, in similar cases; and may thereupon proceed to record the same, as tliougli such will, testa- ment or codicil had been proved by such subscribing witness or witnesses, in his, her or their proper persons.(') q. On probate of the will of a deceased person, it is proper to exclude all evidence of the execution of the will and of the state of mind of the testator, except the testimony of the subscribing wit- nesses; but where probate of the will has been refused in the county court, and uj)on appeal to the circuit court, a trial de novo is had, for the purpose of establishing the sanity of the testator, resort may be had to the same character of evidence as upon a hearing of a bill in chancery, filed under the statute, to set aside a will. Where, however, the will is admitted to probate in the county court, and an appeal is ])rosecuted by those contesting the will, the rule is different.f^ This rule, however, will not prevent the production of evi 111., 493; Shaw vs. Modervvell, 104 ill., 64; Wilbur vs. Wilbur, 129 111., 392; I'endlay vs. Eaton, J30 111., 69. (2) Wulfvs. Bollinger, 62 HI., ^68. (3) //a (41 Kigg ct al. vs. Wilton et al., 13 111, 15; Tate vs. Tate. 89 111., 42; Trish et al. vs. Newell et al., 62 111., 196; Carpenter vs. Calvert, 83 111., 62. CH. XIV.] WILLS. 193 ure to do so, unexplained, might be regarded as a suspieions cir- cumstance. It is cnoiigli that the jury are convinced, from any legitimate testimony, of the sanity and capacity of the testator.(*) d. The influence to avoid a will must be such as to destroy the freedom of the testator's will, and thus to render his act obviously more the offspring of the will of others, than of his own. It nmst be an influence specially ply the moneys to be raised upon such mortgage or lease to the payment of the debts of the testator ; and all money so raised, shall be assets -in the hands of su(!h executor for the payment of debts, and shall be subject to the order of the court in the same manner as other assets. (^) (i) Morgan etal. vs. Stevens, 7S 111., 287; Harrington etal. vs. Steesetal., 82 111., 51; Arnett vs. Arnett, 27 ill., 247; Carroll vs. Bonham, 42 N. J. Eq.,625. (2) McCullom vs. Chidester, 63 111., 477. (3) Foster's Appeal, 87 Pa. St., 67; /?ire Page, 118 111., 576. m) Mills vs. Fogal, 4Edtv., 559. (5) Hurd's R. S., Chap. 3, § 119; Smith vs. Hutchinson, 108 111., 662 ; VVilbourn vs. Shell, 59 Miss., 205 ; Foster's Appeal, 5?i!/)ra/ See i Probate Reports, 439, for brief of authorities, and 4 Ji., 90; ins. Co. vs. A.spinaU, 44 Mich., 330. CH. XIV.] WILLS. 199 a. Foreclosures of such mortgages shall only be made by petition to the county court of tlic 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 confirm- ation, be set aside by the court for inadequacy of jjrice or other good cause, and shall not be binding upon the executor until con- firmed by the court.(^) 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 judgmeiits.(*) 6. A statute similar to the above in the Revised Statutes of 1845,(^) was construed by the supreme court to authorize a mort- gage which should only aifect the title during the minority of the ward, and not to authorize a mortgage of the fee.C) 18. Construction of wills. — There is no branch of the law in which the student will find greater difficulty in fixing with definitencss rules to guide to correct and satisfactory conclusions, than in this one of the right construction of the language employed by testators in formulating their wills. Upward of two hundred years ago, Lord Coke made the observation, which is nearly as true now as it was then, that " wills and the construction of them do more perplex a man than any other learning ; and to make a certain construction of them, exceeds the art of j urisprudence.'\^) The first and great rule in the exposition of wills, to which all others must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. This principle is asserted in the construction of every tciita- mentary disposition. It is emphatically the will of the person who makes it, and is defined to be the legal declaration of a man's inten- tions, which he wills performed after his death. These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with la\v.(^) a. Generally a will is not to be construed by anything dehors, (i) Hurd's R. S., Chap. 3, § 120. (2) Hurd's R. S., Chap. 3, \ 121. (3) Revised Statutes of 1845, Chap. 109, § 134. (4) Merritt vs. Simpson et al., 41 111., 391 ; Webster vs. Conley, 46 111., 13. (51 Roberts vs. Roberts, 2 Bulst., 130. (6 Chief justice Marshall in Smith vs. Rell, 6 Peters, 74; Rountree vs. Talbott et al., 89 111., 246; Willis et al. vs. Watson, 4 Scam., 65; Taubenhan vs. Diinz, t25 111., 524. 200 WILLS. [CH. XIV. where there is no latent ambiguity, and parol evidence is not ad- missible to show the intention of" tlie testator against the construetion on the face of tiu; will, and the state of his property can not be resorted to, to explain the intention. (') b. The law requires that all Malls of lands be in writing, and extrinsic evidence is never admissible, to alter, detract from, or add to, the terms of a will. To permit evidence, the eifect of which would be to take from a will plain and unambiguous language, and insert other language in lieu thereof, would violate the foregoing well established rule.(^) There is no other class of written instruments known to the law in M liicli so little importance is attached to the technical sense of language, in comj)arison with that sense in which the apparent object of the writer indicates his words to have been used.(^) e. It is obvious from the haste in which such instruments are frequently prepared — the fact that they are often written by persons wholly unacquainted with the technical language of the law, and frequently by persons who have an imperfect uiKlerstanding of the use of language, and unaccustomed to prepare such instruments — that it is frequently a matter of no small difficulty to ascertain that meaning; but it is a rule, that the whole instrument must be con- sidered, in ascertaining the meaning of its various parts; otherwise, in many cases, the intention of the testator would be defeated, rath- er than eifectuatcd.C) d. Trhen no trust is created by a will, neither the executor nor the heir or devisee who claims only a legal title in the estate, will be allowed to come into a court of equity for the purpose of obtain- ing a judicial construction of the provisions of a will. Where purely legal titles are involved and none other relief is sought, a court of equity will not assume jurisdiction to construe the will, but will remit the parties to their remedy at law.(^) But where a trust was imposed by the^will of a deceased person upon the executors nominated in the will, in the matter of the sale (i) Heslop vs. Gatton, 71 111.. 528; People vs. Jennino;s, 44 111., 4S8; Decker vs. Derker. 121 111., 341; Smith vs. Dennison, 112 111., 367; Rowen vs. Alien. 113 111., 53. ^ (2) Kurtz et al. vs. Hil)ner et al., 55 111., 514 ; 10 Law Reg., 97, note by Judge Rei-Tield. (3) Royd et al. vs. Strahan et al., 36 111., 355. U) Markillie vs. Ragland, 77 111., 98 ; Smyth vs. Taylor, 21 111., 296 ; Boyd et al. vs. Strahan et al., supra; Lunt vs. Lunt, 108 111., 307. (5) Whitman vs. Fisher, 74 III., 147; Strubher et al. vs. Belsey, 79 111., 307; Longwnrth vs. Riggs, 123 111., 258. CH. XIV.] WIM-S. 201 of certain real estate, it Avas lield proper for the circuit court in chummery to entertain a bill hy the executors asking tlie advice of the court as to the manner in which the trust resting upon them should be performed, the trust being embarrassed by circumstances not foreseen or provided against by the testator.(^) 19. Where land devised is sold. — Where a testator devises land, the legal title to which is in him, but which he has sold and given to the purchaser a bond for a deed thei'efor, the purchase money, when paid by the purchaser, will belong to the devisee.(*) 20. Charge of legacies upox rkal estate. — Unless there ap})ears on the face of a will an intention on the part of a testator to charge his real estate with the payment of legacies bequeathed therein, such real estate will pass to the heir or devisee free from any charge on account of such legacies. (^) 21. Title vests in devisee, — Where lands are by will given to trustees during the minority of the children of the testator, then to be divided between the survivors of them, the legal title vests at once in the children named, upon the death of the testator.('*) 22. Wills, etc., against whom fraudulent. — All wills and testaments, limitations, dispositions or appointments of, or con- cerning any lands and tenements, or of any rent, profit, term or charge, out of the same, whereof any person, at the time of his decease, shall be seized in fee simple, in possession, in reversion, or remainder, or have power to dispose of the same by his last will or testament, shall be deemed and taken (only as against the person, his heirs, successors, executors, administrators or assigns, and every of them, whose debts, suits, demands, estates and interests, by such will, testament, limitation, disposition or appointment as aforesaid, shall, or might be in any wise disturbed, hindered, delayed or de- frauded,) to be fraudulent, void and of no effect, any pretense, color, leigued or presumed consideration, or any other matter or thing, to ;he contrary notwithstanding.(^) Every devise of real estate is fraudulent and void as against the (i) Bridges at al. vs. Rice, 99 111., 414. (2) Wriglit vs. Minshall, 72 111., 584. (3) Heslop vs. Gatton, 71 111., 528 ; Gill vs. Mining Co., 92 111., 249 ; Funk ct al. vs. Eggleston et al., 92 111., 515. (41 Htini>.5'Lead et al. vs. Dickson, 20 111., 193. (5j Kurd's R. S., Chai?. 59, § 10. 202 WILLS. [CH. XIV. existing creditors of the devisor. It is fraudulent in law, without regard to the question of intention. . The devisee has no just claim to the lands; until the debts of the testator are fully discharged. Nor has the heir any superior right to the lands of his ancestor. They both acquire the lands subject to the payment of the debts of the former owner, and are only entitled to the surplus that may remain after those debts are discharged.(^) 23. Trustees to receive compensatioxV. — That where a trustee or trustees shall hereafter act under any power or ni>p()int- ment given or created by any will, testament or codicil, anil in such will, testament or codicil, except in case of trusts for ch.iritable, religious or educational purposes, shall bo contained no provision respecting the compensation to be allowed or paid such trustee or trustees, a reasonable compensation may be charged and allowed, demanded and collected therefor.(^) (i) Ryan vs. Jo^e^., 15 HI., i. (2) Hurd's R. S., Ch<.«). 3, 'i 136; Sherman vs. Leman, 137 HI., 94. CH. XV.] FOKEEGN EXECUTORS AND ADMINISTRATORS. 208 CHAPTER XV. FOREIGN EXECUTOP.S AND ADMINISTRATORS. 1. Power of executors and administrators in other jurisdictions under the common law. 2. Powers in this state of those holding authority from other states. a. F"oreign administrator need not account here. 3. Exceptions. 4. Authority local. 5. Authentication of letters. 6. Certificate. 7. How right to sue must be questioned. 8. May sue out execution. 1. Power of executors and adjiinistrators in other JURISDICTIONS under THE COMMON LAW. — A grant of administra- tion in one state or country, does not, at the common law, confer on an administrator any title to the property of the intestate situated in another state or country.(^) He has no authority over, nor is he responsible for any effects of the estate that may be beyond the jurisdiction. In administering the estate, he acts only in reference to the effects within the jurisdiction, and the debts that may be there presented against the estate. In his official capacity he can neither sue nor be sued, out of the country from which he derives his author- ity, and to which he alone is amenable.(^) If he wishes to reach property, or collect debts belonging to the estate in a foreign coun- try, he must there obtain letters of administi-ation, and give such security, and become subject to such regulations, as its laws may prescribe. So, if a creditor wishes to bring a suit in order to satisfy his debt out of property in another jurisdiction, administration must there be first obtained.(^) The administration at the domicile of the decedent is the principal, and a foreign administration is, by the laws of nations, merely ancillary and subordinate to it. The foreign administrator, in such a case, may be called to an a^'count here, to (i) Bonneil vs. Holt et al., 89 111., 71 ; Fletcher's Admrs. vs. Sanders, 7 Dana (Ky.), 345; See 76 Am. Dec, 668, fur brief of authorities. (2) Story's Conflict of Laws, ^ 513; G jodwin vs. Jones, 3 Mass., 514; Riley vs. Riley, 3 Day, 74 ; Leonard vs. Putnam, 51 N. H., 247. (3) Judy et a\. vs. Kelley, ii 111., 211 ; Sheldon vs. Estate of Rice, 30 Mich., 296; Morrell vs. Dickey, i Johns. Ch., 153; Doolittie vs. Lewis, 7 Johns. Ch., 45; Vaughn vs. llarrett, 5 Vermont, 333: Note to same case, 2^ Am. Dec, 309; Stevens vs. Gaylord, 11 Mass., 256; McGarvey vs. Darnall, 134 111., 367; Patterson vs. Payson. 18 S. C, 584. 204 FOREIGN EXECUTORS AND ADMINISTRATORS. [CH. XV. the domestic executor or administrator, for the assets received by him abroad, and remaining after the payment of expenses, and the discharge of debts in due course, in the foreign state.(^) In all cases of double administration, a court of equity will interfere so to marshal the did'urent funds under administration as to produce equality among all creditors, whether foreign or domestic, and also to transmit, if necessary, the residue of assets left in the hands of the foreign administrator to the jn-incipal administrator, at the domicile of the deceased, there to be distributed among heirs or creditors.(^) An administrator can not sue or defend beyond the jurisdiction of the state appointing him, nor can he collect assets of his intestate situated in such jurisdiction, whether they consist of tangible prop- erty or choses in action. (^) So, the release and satisfaction of a mortgage by a foreign administrator, can not avail as a defense to a bill by the domestic administrator, to foreclose.;*) This regulation can not be evaded by the endorsement and deliv- ery of a note against a citizen of a foreign state, held by an admin- istrator, so as to effect a recovery in the name of a third person, (^) An ancillary administrator appointed in one state upon the estate of one domiciled in another, is bound to pay the debts of his dece- dent due to citizens of the state where his letters are granted, but not to pay legacies ; the legatees must resort to the state of the testator's domicile. I*^) The county court has power to order funds in the hands of an ancillary administrator to be transmitted to the principal adminis- trator in another state, when the administration here is settled, and there are no heirs, distributees or creditors claiming such fnnd.('^) Should the excess of funds in the hands of such administrator arise from the sale of real estate, the court should order distribution under our law of descent. (i) Ordronoux vs. Helie, 3 Sand. Ch., 512; Graham vs. Pub. Admr., 4 Brad., 127; Branch vs. Rankin, 108 111., 444; Yuung vs.VVittenniyre, 123 111., 303. (2) Lawrence vs. Elmandorf, 5 Barb., 73; Story's Eq. Juris.,? 588-9; Mc- Namara vs. Dvvyer, 7 Paige Ch., 239, and note to same case, 32 Am. Dec, 632. (3) Riley vs. Morely, 44 Miss., 37; Anderson vs. Gregg, Id., 170; Good- win vs. Jones, 3 Mass., 514. (4) Stone vs. Scripture, 4 Lans., (N. Y.) 186; Stevens vs. Gaylord, i Mass., 256; See note, 32 Am. Dec, io5; (Tc^/Zra, Wilkins vs. Elliott, 9 VVal.,74u. (5) Lee vs. Havens, Brayt., 92. (6) Richards vs. Dutch, 8 Mass., 506. (7) Childers vs. Bennett, 10 Ala., 751. CH. XV.] FOREIGN EXF/'UTORR AND ADMINISTRATORS. 206 NotwithstaiKliiig these regulations, it is competent for au administrator appointed in one state to collect and receive money and personal property and effects within another state, belonging to the intestate, so far as it can be done without tlic aid o'' legal pro- cess.(') And where a power of sale in a mortgage j)ruvided that the mortgagee, his executors and assigns, might sell the property in default of paym.ent, it was held, upon dcfiult, tlie mortgagee being dead, that the power of sale was properly executed by his administrator, although he was appointed in another state.(^) 2. Powers by statute. — When any person has proved or may prove the last will and testament of any deceased person, and taken on him the execution of said will, or has obtained or may obtain administration of the estate of an intestate in any state in the United States, or in any territory thereof, such person shall be enabled to prosecute suits to enforce claims of the estate of the deceased, or to sell lands to pay debts, in any court in this state, in the same manner as if letters testamentary or of administration had been granted to him under the provisions of the laws of this state: Provided, that such persons shall produce a copy of the letters testa- mentary or of administration, authenticated in the manner prescribed by the laws of congress of the United States for authenticating the records of judicial acts in any one state, in order to give them valid- ity in other states : And, provided, that said executor or adminis- trator shall give a bond for costs, as in case of other non-residents. (') a. A foreign administrator availing himself of this statute, and making collections here, is not bound to account for any part of the assets of the estate hercC*) 3. Exceptions. — Nothing contained in the preceding section shall be so construed as to apply to cases where administration is obtained upon the estate of any intestate nor where letters testa- mentary are granted in this state ; and when, after any suit is commenced by any administrator or executor under the provisions of the preceding section, and before final judgment thereon, adminis- tration is had, or execution undertaken within this state, under the laws of the same, upon the estate of any decedent, upon suggestion (i) Doolittlevs. Lewis, 7 Johns. Ch.,45; Story's Conflict of Laws, l 515. '2) lb. (3) Kurd's R. S., Chap. 3, 1 42; Hickox vs. Frank, 102 111., 660. (4) Selectmen of Boston vs. l]oylston, 2 Mass., 384. 13 206 FOUKIGN EXECUTORS AND ADMINISTRATORS. [CH. XV. of such fact, entered of recorcl, the said resident administrator or executor shall, upon motion, be substituted as party to such suit; and thereupon the court shall proceed to hear and determine the same, as if it had been originally instituted in the name of the said resident executor or administrator, and the benefits of the judg- ment, order or decree shall inure to him, and be assets in his hands.(') 4. His authority local. — An administrator is the officer of the court ap])ointing him; and his power is only commensurate with the state or country from whose court he receives authority to act ; therefore, letters granted in another state, give no authority to sue or administer assets in this state. (^) But for the foregoing statute, administrators and executors hold- ing authority from another state, could have no standing as such in the courts of this state. The statute only incsluding such as receive their appointment in some one of the states or territories of the United States, only such are en ihled, by conforaiing to its provis- ions, to bring suits in the courts of this state. (^) 6. No PRIVITY BETWEEN DOMESTJC AND FOREIGN ADMINIS- TRATORS. — The doctrine is well settled, that if letters of adminis- tration are granted in different states to different persons, in respect to the estate left by the same deceased person, there is no privity between such adminstrators; and that, therefore, a judgment against the administrator in one state is not competent testimony to show a right of action against either a domiciliary administrator in another state, or to affect assets in such other state. ^^j 6. Authentication. — The copy of letters of foreign executors and administrators, to entitle them to credit in the courts of this state, must be authenticated by the attestation of the clerk of the court granting them, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or pre- siding magistrate, that said attestation is in due form.(^) 7. What is a sufficient certificate. — Letters of adminis- (i) Hurd's R. S., Chap. 3, ? 43 ; Branch vs. Rankin, loS 111., 444. (2) Glenn vs. Smith, 2 Gill & Johnson, 493. v3l Judy et al. vs. Kelley, 11 111., 211 ; People vs. Peck, 3 Scam., 118; Christy vs. McBride, i Scam., 75. (4) McGarvey vs. Darnali, 134 111., 367 ; Price vs. Mace, 47 Wis., 23 ; Jones vs. Jones, 15 Texas, 463. (■^1 U. S. Revised Statutes, 1874. title i^. Chap. 17: Baker vs. Brown. 18 lu., 91. Cir. XV.J FOUKIGN KXECUTORS AND ADMINISTRATORS. 207 tration granted iu one of the United States, authenticated by the a:!(;-tati<)ii of tiie sole presiding judge, hy whom tiie records are Vept, there being no clerk, with the seal of the court annexed, are admissible as evidence in the courts of this state.(^) 8. Issue to be raised by special plea. — The right of a ;)laintitF to sue in the assumed capacity of administrator must be questioned by the defendant by a special plea of ne unques adraln- idrator — the general issue admits such right (^) Suits brought by foreign administrators iu the courts of thi? state are alike subject to the same rules of pleading as in cases where suits are brought by domestic administrators; and the mode of proof, when the ollicial character is questioned, is there pre- scribed. (^) 9. May sue out execution. — The power given to foreign administrators in the above statute includes the power to sue out an execution on a judgment rendered in favor of the inte.'^tate in hii^ lifetime.(^j* (1) Spencer vs. Langdon, 21 111., 192. (2) McKinley vs. Braden, i Scam., 64 ; Brerkinridge et al. vs. Ostrom, 79 111., 71; Collins vs. Ayers, 13 111., 358; Ballancc vs.Fiisby etal., 2 Scam., 63. (3) Collins vs. Ayers, supra. (4) Keefer vs. Mason, 36 111., 406. *NoTK.— Tlie whole doctrine of domestic and foreign adiuiulatratiouis well collated in a note to Ooodall vs. MarshM, 35 American Decisions, 483. 208 APPEALS. [CH. jm. CII. AFTER XVI. APPEALS. 1. Appeals from order rejecting claim. 2. Who may take appeals, and how. 3. Right extends to all cases —exception. 4. Condition of bond. 5. What may be done upon appeal. 6. Writ of error. 1. Appeals from order allowing or rejecting a ct-atm. — In all cases of the allowance or rejection of claims hy the county court, as provided in this act, either party may take an appeal from the decision rendered to the circuit court of the same county, in the same time and manner appeals are now taken from justices of the peace to the circuit courts, by appellant giving good and sulficient bond with security to be approved by the county judgv; and such appeals shall be tried de novo in the circuit court. (') 2. Who may take appeal — now allowed. — A;v>Gals shall be allowed from all judgments, orders or decrees of the county court in all matters arising under this act, to the circuit court, in favor of any person who may consider himself aggrieved by any judgment, order or decree of such court, and from the circuit court to the supreme court, as in other cases, and bonds with st>curity to be fixed by the county or circuit court, as the case may bo.(^) This section includes petitions for leave to sell land to pay debts, from which decrees either party may appL\al to the circuit court.(^) Under Section 124, above, it has been decided that a security upon the bond of an administrator, though not a party to the record, may appeal from an order of distribution made by the county court against the principal in the bond, if he feels himself aggrieved by such order. (*) So, a security upon the bond of a deceased guardian, who died with money in his hands belonging to his ward, may ap[)eal from an order of the county court transferring a claim other than the (i) Hurd's R. S., Chap. 3, § 68; Smith et al. vs. Dennison, 94 111., 582. (2) Hurd's R. S., Chap. 3, ? 124. (3) Steele vs. Steele et al., 89 111., 51. (4) Ralston et al. vs. Wood, 15 111., 159. CH. XVI.] APPEALS. 209 ward's, al lowed as of the 7th class, against the estate of the deceased, and ordering the administrator to pay it as of the 6th class. (*) In a proceeding to condemn the right of w ly for a railroad, where the owner died after the termination of tli:; proceedings in the circuit court, the heirs of the owner are the proper persons to prosetnite an appeal, and not the personal representatives. (^) When the appeal is |)rosecuted by one aggrieved, who is not a party to the record, it may be prosecuted in the name of the admin- istrator.t^^l -i. lilGIIT JX 1 NDS TO ALL CASES — EXCEPTION. — The right of ;i|)peal given by Section 1 24, above quoted, would seem to include '<} its comprehensive language, every conceivable order of the court, and to extend the right to every person interested, however remotely, and such seems to have been the construction put upon it ;(■*) yet it has recently been held that no appeal lies to the circuit court by an administrator from an order of the county court, under Section 114, Chapter 3, committing him to jail for failure to pay to heirs money in his hands subject to distribution. The same decision holds that the supreme court may only review such a decision, upon a writ of error prosecuted thereto directly from the county court.(^) 4. Condition of bond. — In all cases when an executor or administrator shall take an appeal from the judgment, decree or order of any court or justice of the peace to the county, circuit or supreme court, or when he may prosecute writs of error or certiorari, the appeal, certiorari or supersedeas bond shall be conditioned to pay the judgment or decree, with costs, in due course of adminis- tration ; in all other respects such bonds shall be in the form pre- s 'ribed by law in other cases. (®) Where an appeal or supersedeas bond is executed by an adrain- isti-aior or executor, it is sufficient if the condition provides for the payment of the debt " in due course of administration," should the appeal be fruitless. C') 5. What may be done on appeal. — On an appeal by an (i) Weervs. Gand, 88 111., 490. (2) Rower vs. G. & M. R. R. Co., 92 111., 223. (3) Pfershing vs. Falsh, 87 III., 260; Motsin-er vs. Coleman, 16 111., 71. (4) Andrews et al. vs. Black et al., 43 Til. 256. (5) Haines vs. People, 97 111., 162; Explained in Randolph vs. People, 130 111., 533. (S) Kurd's R. S., Chap. 3, ? 125. (7) Mason vs. Johnson, 24 111., 159: Smith et al. vs. Dennison, 94 111., 58*. 210 APPEALS. [CH. XVI. administrator from an order of the county court rejecting a part of his charges for money paid out, the circuit court does not acquire jurisdiction of the whole account or report, but only of the rejected items, and can not hear evidence as to any of the items allowed by the county court. If the heirs appeal as to the items allowed, the rule is dil}crent.(') Where both parties appeal, the whole case will come before the court. On an appeal, the circuit court can only do what the county court might do.(^) 6. WiciT OF EiiROR. — Where, by the terms of the statute, no appeal is given from an order or decree of the county court, a writ of error may be prosecuted to the supreme court. But where an appeal may be taken, no writ of error will lie.(^) As an appeal lies from an order of the county court removing an administrator, no writ of error can be prosecuted from such an order. (*) (i) Curts vs. Brooks, 71 111. 126; Mi'lard vs. Harris, 119 111., 1S5. (2) Cagney vs. O'Brien, F3 111., 72; Miller vs. Miller, 82 111., 463. (3) Hobson et al. vs. Payne, 40 111., 25; Fitzgerald vs. Glancy, 4Q 11., 466; Horner vs. Goe et al., 54 111., 285; Unknown Heirs of Lnngworth\ vs. Raker, 23 111., 48.1; Haynes vs. People, 97 III., 162; Ennis vs. Ennis, 103 111-, 95- (4) Frans vs. People, 59 111 . 427. ^ PA^RT II. GUARDIAN AND WARD. Adoption of Children; Conservators; Insanity; Assignment; Insolvency; Bastardy; Right of Property. GUARDIAN AND WARD. CHAPTER I. OF THE VARIOUS KINDS OF GUARDIANS. 1. Definition. a. Of the various kinds of guardians. 2. Guardians by nature. a. Powers of such — custody. b. Limitation in chancery. c. In case of divorce. d. Bastards. e. Power over property. f. Duty to maintain. g. E.xception— abandonment. h. Exception as to all guardians but the father. i. Parent owns clothing uf the child. 3. Guardians by chancery. a. Unknown to the common law. b. Origin of this relation. c. Jurisdiction of equity courts. d. May direct the action of guardian. e. Suits by infants in equity /. Peculiar duty of courts of uqLiily. 4. Guardians by statute. a. Testamentary. b. Statutory. 5. Guardians ad litem. a. Appointment and power. /;. Infants the wards of equity courts. c. Presumption. d. Such guardian may employ counsel. 1. Definition. — A guardian is one that lencallv has tlie care and management of the person, or estate, or both, of a child during minority. At eommo'i law sucli eiiild is denominated a ward.(') (i) Reeves' Dom. Rel., 311. 214 OF THE VARIOUS KINDS OF GUARDIANS. [CH. I. a. Tli''i'c are various kinds of guardianships. First: Guardians by nature. Second : Guardians by cliancery. Third : Guardians by stiitutc. Fourth: Guardians cwi //Ye/n. 2. Guardian by naturk. — The father is tlie guardian by nature, and on his deatli the motlier.(^) This guardianship by the eoininon law extends only to the custody of the person, terminating when the child arrives at the age of legal majority.(^) The father has the legal right to the custody and control of his children, unless he has forfeited, waived or lost it by misconduct, misfortune or some peculiar circumstances sufficient to deprive him of it. Next to the father the mother has the right.(^) a. The power of the guardian by nature is limited, and liable to be controled by the court of chancery.;^*) 6. It has been held that a court of chancery would deprive him of the custody of the child, if his character rendered him an unfit guardian. (^j The parent, however, having the natural right to the care and custody of his child, this right should not be abridged by the state, except from a necessity, arising from gross misconduct, or almost total unfitness on the part of the parents. i^'') c. Whore a divorce has been granted for the fault or misconduct of the father, the mother will be entitled to the child. (^) d. The mother of a bastard child is its natural guardian. (^) e. A guardian by nature is not entitled to the control of his ward's property, either real or personal. (") That right, whenever he has it, nuist be as a guardian, duly appointed, by some compe- tent public authority.^'") He has no authority to lease the infant's (i) Fields vs. Law, 2 Root, (Conn.) 320. (2) 2 Kent's Com., 220; Perry vs. Carmichael, 95 111., 519. (3) Miner vs. Miner, 11 111., 43. (4) De Mandeville vs. De Mandeviile, 10 Vesey, Jr., (Vt.) 52. (5) Reeve Dom. Rel., supra; 2 Kent's Com., supra; Perry vs. Carmi- chael, supra. (6) The People Ex. Rcl. Turner, 55 111., 2S0. (7) Miner vs. Miner, supra. (8) Wright vs. \Vri.^:lit, 2 Mass., 109 ; Dalton vs. .State, 6 Blakf., (Ind.) 357 ; Somerset vs. Dighton, 12 Mass., 3S3 ; People vs. Mitchell, 44 Barb., 245. (9) Hyde vs. .Stone, 7 Wend., (N. Y.) 354; Miles vs. Boyden, 3 Pick., (Mass.) 213; Kline vs. Beebe, 6 Conn., 494; Perry vs. Carmichael, .r/i'/'ra. (10) Fonda vs. Van Home, 15 Wend., (N. Y.j 631 ; Kendall vs. Miller, 9 Cal., 591 ; Perry vs., Carmichael, j/i/ra. CH. I.j OF THE VARIOUS KINDS OF GUARDIANS. 215 lands ;(^) nor can he give a binding discharge to an execntor, on the payment of a legacy belonging to the child. (^) /. The father, being its natural guardian, must support the ward.(^) When his means are limited, the court may grant an allowance out of his child's estate. (^) But the mother, if guardian, is not obliged to support her child, if it has sufficient estate of its own ; nor is she entitled, like the father, when guardian, to its services, unless she is compelled to maintain it.(*) Where the father and mother separate, by mutual consent, and the father permits the mother to take the children with her, then the father constitutes the mother his agent to jDrovide for his chil- dren, and is bound by her contracts for necessaries for them.(^) g. There is one exception to the rule that a father, being the natural guardian, is bound for the support of his child ; and that is, where the child voluntarily abandons the home of his father and remains abroad against his consent, he thereby forfeits his claim to support ; and those who credit him, even for necessaries, must look to him for payment; and it is no excuse that such persons were not aware that the child was a(!ting contrary to the will of the father: for while the father is under a natural obligation to provide for the maintenance of his infant child, an express promise, or circumstances from which a promise by the father can be inferred, are indispen- sably necessary to bind the parent for necessaries furnished his infant child by a third ])ers(m.('') For, in order to bind a father for necessaries furnished his infant child, there must be some evi- dence that he has either sanctioned or ratified the contract. The mere moral obligation resting on the father to maintain his child, aifords no legal inference of a promise to pay his debts. (^) And courts are (i) Anderson vs. Darby, I Mott. & M., (S. C.) 369 ; Magruder vs. Peter, 11 Gil. & J., (Md.)2i7; May vs. Calder, 2 Mass., 55; Ross vs. Cobb, 9 Yerg., (Tenn.) 463. (2) Genet vs. Tallmadge, i Johns. Ch., 3; Miles vs. Boyden, 3 Pick., (Mass.) 213. (3) Bloomer vs. Bloomer, 2 Bradf. Surr., (N. Y.) 341 ; Cowls vs. Cowls, 3 Gilm., 435. (4) Bloomer vs. Bloomer, supra ; Cowls vs. Cowls, supra. (5) F"onda vs. Van Home, 15 Wend., (N. Y.j 631. (6) McMillen vs. Lee, 78 111., 443. (7) Hunt vs. Thompson, 3 Scam., 179; Kelley vs. Davis, 49 N. H., 187; Gotts vs. Clark, 78 111., 229; McMillen vs. Lee, supra. (8) Broo»"'s Legal Ma.xims, 533 to 536. 216 OF THE VARIOUS KINDS OF GUARDIANS. [CH. to decide according to the legal obligations of parties, not mere moral obligations.(^) h. No guardian, except a father, is bound to maintain his ward at his own expense, and it is discretionary with a court whether to allow a father anything out of his child's estate for his education and maintenance. (^) i. The [)arent of a minor is the owner of the clothing furnished for the use of his child, and may recover for its loss or destruction. (^) 3. Guardian by chancery.— ^Courts of chancery have full jurisdiction over the persons and estates of infants, and other per- sons under legal disabilities, as well as their guardians, trustees or other custodians, alike whether the relationship arise from natural ties, or is created by law.C) The relations of guardian and ward, and the rights and obligations which grow out of it, are peculiarly within the jurisdiction of a court of equity, and its power to afford relief for a breach of trust cannot be questioned, unless taken away by some express statutory enactment.(^) a. This guardianship was unknown to the common law, but it is well established in practice now.(®) b. It grew up in the time of William III., and had its founda- tion in the royal prerogative of the king as parens 'patrim-O This power the sovereign is presumed to have delegated to the chancel- lor.(^) By virtue of it, the chancellor appoints a guardian where thei'c is none, and exercises a superintending control over all guard- ians however appointed, removing them for misconduct, and appointing others in their stead. (^) This power resides in courts of equity in the United States.(^") The rights of infants will always be guarded by courts of equity, and whenever invaded or endan- gered, a remedy will be applied. ('^) (i) Turner vs. Mason, 14 M. & W., iii. (2) Reeve Dom. Rel., 324; Douch vs. Rahner, 6 Ind., 66. (3) Parmalee vs. Smith, 21 111., 620. (4) Tovvnsend vs. Kendall, 4 Minn., 412; Commonwealh vs. Henshaw, 2 Rush, fKy.) 286. (5) Grain vs. Barnes, i Md. Ch., 151. (6) Boiivier's Law Diet., 646. (7)2 Fonblanque Eq., 5 Ed., 246. (8) De Mandeville vs. De Mandeville, loVesey Jr., Ch.,63; Reeve Dom. Rel., 317. (9) 2 Kent's Com., 227. ( 10) 2 Kent's Com., supra ; Cowls vs. Cowls, 3 Gilm., 435 ; Sessions vs. Kell., 30 Miss., 45S ; E.x. Parte Dawson, 3 Bradf. Sum, (N. Y.) 133. (11; White vs. Glover, 59 111., 459. Cir. I ] OF THE VAiaoUS KINDS OF GUARDIANS. 217 c. Tlie jiirisdictioii of such courts to superintend the admiuis- tratioii of assets, and decree distribution among legatees and distril)- utees, is now tirnily established; and a statutory provision giving courts of law power over the same subject, does not deprive chancery of its jurisdiction. (') The representatives of a ward may file a bill against the execu- tors of a guardian, in whose hands the estate of the infant remained unaccounted for at his death. (^j And, where a guardian receives a conveyance of the estate of his ward in his own name, in case of his death, a bill in equity may be maintained against his administrator, to enforce a conveyance of the property tluis held in trust, and to account for its earnings. (^) So, too, chancery will entertain a bill against a guardian, brought by the heirs of his ward, although the demand be merely for money. (*) A court of equity has plenary jurisdiction over the persons and estates of infants, and will, in the exercise of that jurisdiction, cause to be done whatever may be necessary to preserve their estate.(^) And where there are infant defendants to a suit for partition, the right of partition of the lands among the several owners, and the consequent sale, if not susce[)tible of a division, is not absolute in all cases, for in case the court deem it best for the interest of the infant heirs, although such suit may have been instituted in behalf of the minors by their guardian, it will refuse to permit a sale, which a court of chancery, in the exercise of its general supervision over the rights and interests of infants, ought to do, when their interests will be best subserved by it.(^) d. Where a guardian ad, litem of infant heirs, ]>uts in an answer to a bill in chancery admitting the allegations, a court of chancery being the general guardian of infants, may doubtless, set aside the answer of the guardian and direct him to put in an answer requir- ing the complainant to prove the facts set out in his bill.(^) e. Suits in chancery may be commenced and prosecuted by (i) Barnes vs. Compton, 8 Gill., (Md.) 391. (2) lb. (3) Folger vs. Buck, 66 Me., 205. (4) Armstrong vs. Mill, 6 Ohio, 119. (5) Lynch vs. Rotan, 39 111., 14. (6) Hartman vs. Hartnian, 59 111., 103. (7) Thornton vs. The Heirs of Henry, 2 Scam., 218. 218 OF THE VARIOUS KINDS OF GUARDIANS. [CH. infants, either by guardian or next friend.(*) And whenever a suit is instituted in the court of cluincery, relative to tlie person and property of the infant, although he may not be under any general guardian appointed by tlie court, he is treated as a ward of the court, and as being under its special cognizance and protection. (^) It is frequently necessary for the infant to file a bill against the guardian ; and when that is not the case, there may be reasons for fearing that the guardian is not acting judiciously, or in good faith in relation to the sulyect of the suit. It is the business of the court of chancery to see that no one stands between the infant and a just protection of its rights ; and for this purpose, the court may appoint a person to prosecute or defend for the infant.(^) A general supervision of the interest of infants is now exercised in courts of chancery, as a branch of general jurisdiction. Indeed, it is one of the peculiar duties of courts of chancery to protect the rights of infants. From the earliest period, courts of chancery have been vested with a broad and comprehensive jurisdiction over the person and property of infants.(*) Chancery courts retain a general jurisdiction over every guardian, however appointed.(^) 4. Guardians by statute. — They are divided into two kinds: First — Testamentary guardians, or those appointed by the court by authority in a will. Second — Statutory guardians, or those appoint- ed by the court in pursuance of some statute. a. First : Testamentary guardians : — The father, being of sound mind and memory, of a child likely to be born, or of any living child, being a minor and unmarried, may, by his last will, dispose of the custody and tuition of such child to continue during its minority, or, for a less time. Provided, no such will shall take effect to deprive the mother, during her life, of the custody and tuition of the child, without her consent, if she l)e a fit and compe- tent person to have such custody and tuition. The mother, being of sound mind and memory, and being sole, or surviving the father (i) Hurd'sR. S.,Chap. 22,§5. (2) 3 Story's Eq. Jur., vol. 2, p. 35. (3) Holmes vs. Fields, 12 111., 424. (4) Cowls Vs. Cowls, 3 Giim., 435; Grattan vs. Grattan, iS 111., 167; King vs. King, 15 111., 187; Miner vs. Miner, 11 111., 43; Stark \s. iSrowii, loi 111- 395- • (5) Durrett vs. Davis, 24 Gratt., (Va.) 302; Cowls vs. Cowls, supra; VVilco.x vs. Wilco.x. 14 N. Y., 575. Cir. I ] OF THE VAIilOUK KINDS OF (aJAHDIANS. 219 of hor cliild, may, in like niaiiiicr, dispose of the custody and tuition of such child. (') A testamentary guard i;in sliall have tlie same powers and per- form the same (hities within tiie scope of liis ai)pointment, as a guardian appointed by the county court. (^) A testamentary guardian, except for the custody and tuition of tlie minor, shall, before he can act, be commissioned by the county court of the proper county, and give the bond prescribed in Section 7 of this act. Except, that when the testator has requested in his will that a bond be not required, it shall not be required, unless, from a change in the situation or circumstances of the guardian, or for other snflficieut cause, the court sliall deem it necessary to re- quire it.(^) Where a testator, by his will, appointed his wife guardian to his infant daughter, "So long as she should remain his widow," after his decease, his widow took out letters of guardianship for her daughter, from the probate court of the proper county, and subse- quently married. The appointment of the probate court was held to be void, for want of jurisdiction, and that the power of the father to name a guardian for his children, is greater than that conferred upon the probate court ; and when the former has expressed the right, the latter can not act. That the limitation in the will was strictly legal and should be enforced, and the guardianship of the widow was terminated by her marriage.(^) And where the will of the testator left " The care and custody of his infant children to his wife, so long as she remained his widow," she having married again, the appointment of a new guard- ian was held to be nccessary.(^) As the act of the father in dispos- ing of his minor children by deed or will can not be defeated by an appointment of the county court,(^) the mere naming a person in a will as guardian, does not constitute him such, unless he qualifies as such, although he may have done some act appropriate to that character.(^) So, when a will appoints two persons as "joint guard- (i) Hiird's R. S., Chap. 64, ? 5. (2) lb., >!S. (3) lb.. I 9- (4) Holmes vs. Fields, 12 111., 424. (5) Corri.<^an vs. Kiernan, i I'radf., (N. Y.) 208. (6) liruoklyn Industrial School vs. Kearney, 31 Barb., (N. Y.) 430. (7) McAlister vs. Olnis^lead, 1 Humph., (Tenn.) 210. 220 OF THE VARIOUS KINDS OF GUARDIANS. [CH. T. iaiis" of the person and estate of an infant, and one of them declines to act, all the rights and powers created by the appointment, be- come vested in the otlier.(^) And where the custody of the child is given to the mother l)y a decree of divorce, for the fault of the father, she may by will appoint a guardian for such child. (^) But a testamentary guardian can not be appointed by the grandfather of the infant.(') A testamentary guardian has the legal right to the custody of the ward ; but this right will be controlled, in a case where the interests of the ward obviously require it.(*) b. Second: of Statutory guardians : — The statute has invested the county court with the power to appoint, " when it shall appear necessary or convenient," guardians for minors, for a consideration of which power the reader is referred to Chapter II, post. 5. Guardians ad litem. — Guardians ad litem, are guardians api)ointed by the court, to defend the interest of the infant who may be a party defendant to a suit or proceeding, and who has no legal guardian who may answer for him. a. The a[)pointment of a guardian ad litem, is incident to the power of every court to try a case.(^) And the power of such guard- ian is then confined to the suit or proceeding in which he is appointed.(^) In criminal cases no guardian ad litem is ever appointed, the court acts as the guardian. C') Our statute provides, that in any cause in equity, it shall be lawful for the court in which the cause is pending, to appoint a guardian ad litem to any infant or insane defendant in such cause, and to compel the person so appointed to act. By such appoint- ment, such person shall not be rendered liable to pay costs of suit ; and he shall, moreover, be allowed a reasonable sum for his charges ;is such guardian, to be fixed by the court, and taxed in the bill of eosts.(^) (i) Matter of Reynolds, 18 N. Y. Supreme Court, 41. (2) Willkinson vs. Deming, 80 111., 342. (3) Williamson vs. Gordon, i Busb. Eq., (N. C.) 46; Hoyt vs. Hilton, 2 Edw., (N. Y.) 202. (4) Ward vs. Roper, 7 Humph., (Tenn.) iii. (5) Ballard vs. Spoor, 2 Cow., N. Y. 430. (6) Coke, Litt., 89, n. 16. (7) Reeves' Dom. Rel., 318. (Sj Hurd's R. S., Chap. 22, ? 6; Walker vs. Hallett, i Ala., 379. CH. I.] OF TFIE VARIOUS KINDS OF GUARDIANS. 221 The appointment of a guardian ad litem is something more than mere form, although sueh guardian can not bind the infant by any- thing he may do or admit in his answer.(^) A guardian ad litem can not be aj)pointed until the infant has been brought before the court in some of the modes prescribed by law.(^j Infant heirs must ])e made parties, served personally and be rei)re- sented by a guardian ad litem.i^) For such a guanlian has no power to waive service of process and enter the a})peMrance of the infant.('*) It is not sufficient that the legal guardian of the infant be served with process to give the court jurisdiction over the ])crson of the minor,' even though the infant be named in the bill as a party defendant, and the guardian should enter his appearance and file an answer. To give the court jvu'isdiction of the person of a minor, there must be notice, actual or constructive, and where no notice has been given a minor, the appointment of a guardian ad litem who answered for him, is not sufficient to give the court such juris- diction. Infant defendants must be served with process, in order to bind them by a decree. (*) And where the notice is by publication, which is defective, the appointment of a guardian ad litem is void, as the infants are not in coui"t.(^) So, too, the a})pointment of a guard- ian ad litem for infants, not naming them, is inoperative, where the record fails to show that any of the defendants were niinors.('') A minor can only appear and defend a suit by his guardian, and a judgment or a decree in chancery against infant defendants, without the appointment of a guardian ad litem for such infants, when they have no general guardians representing them, is erro- neous. (^) And upon an application to sell real estate of a decedent (i) McClay vs. Norris, 4 Gi!m.,37o; Cost vs. Rose, 17 III., 276; Chaffinvs. Heirs of Kimball, 23 111., 36; Rhoads vs. Rhoads, 43 111., 239. (2) Hfodt^es vs. Wise, 16 Ala., 509; Siiaefer vs. Gates, 2 I>. ]\Ion., (Ky.) 453; P'razier vs. I^ankey, i Swan, (Tenn.) 75 ; Clark vs. Thumpson, 47 111., 25. (3) Rucker vs. Moore, i Heisk., (Tenn.) 726; Bonnell vs. Holt, 89 111., 71 ; Price vs. Crone, 44 Miss., 571. (4) Robbins vs. Robbins, 2 Ind., 74; Clark vs. Thompson, supra; Chambers vs. Jones, 72 111., 275; Honnell \s. Holt, supra. (5) Greenman vs. Harvey, 53 111., 386; Hickenbotliam vs. Pjlackledge, 54111., 316; Hscher vs. Fischer, 54 111., 231; Campbell vs. Campbell, 63 111., 462. (6) McDermaid vs. Russell, 41 111., 490. (7) .Sullivan vs. .Sulli\an, 42 III., 315. (S) Peak vs. Sliasted, 21 111., 137 ; Hall vs. Davis, 44 111., 494; Quigley vs. Roberts, 44 111., 503; Kesler vs. Pennintjer, 59 111., i :;4 ; Khelt vs. Mastiii, 43 Ala., 86. 14 222 OF THE VARIOUS KINDS OF GUARDIANS. [CH. I. for the j)ayincnt of debts, infant lieirs, who have no guardian ap- pearing for tliein, must be ro[)rescnted by a guardian ad lifcm.^^^) It is not, however, necessary, where the general guardian j)eti- tions for tlie sale of his ward's real estate, that the court sliould appoint a guardian ad I'dcin,-} although it was formerly held to be necessary in this state, and such is now the doctrine in some of the states.(^) A proceeding which divests a minor of an estate in land, is not, necessarily, against his interest, so that he must, in every possible contingency, be made a defendant, and have a guardian to protect his interest. It is only in those special cases arising under the statute, in which he must be made a defendant, and all the evidence affecting him ])reserved in the record.(*) Every thing must be proved against an infant, and the record must furnish proof to sustain a decree against him.(^j Neither a default nor a decree pro con/esso can be taken against an infant — a guardian ad litem should be appointed, who should file an answer, after which the complainant must make full proof whether the answer admits or denies the allegations of the bill.(®) And when so appointed, a guardian ad litem can not waive any of the rights of infant defendants whom he represents, and when incompetent and illegal evidence is introduced without objection by the guardian, the court is bound to notice and exclude such evidence.!^") And it is the special duty of the gutu'dian ad litem to submit to the court every question involving the rights of the infants affected by the suit.C') It is the duty of the court appointing a guardian ad litem, to see that a proper defense is made for the infant ; and it is error to permit a guardian ad litem to withdraw a plea and allow a judgment by default to be entered against the infant.|^^) The court should require an answer from such guardian, and to enter a final decree (i) Herdman vs. Short, iS III., 59. (2) Smith vs. Race, 27 111., 387; Campbell vs. Harmon, 43 III., 19. (3)_Loyd vs. Malone, 23 111., 43; Wyatt vs. INIansfield, 18 B. Men., (Ky.) 779; King vs. Collins, 21 Ala., 363; McAllister vs. Moye, 30 Miss., 258; Pay- Ion vs. Freet, i Ohio St., 544. (4) Ikirger vs. Potter, 32 111., 72. [111., 185. (5) RIkkkIs vs. Riioads, 43 111., 239; Allman et al. vs. Taylor et al., loi (6) Enus vs. Capps, 12 111., 255 ; RIcDaniel vs. Correll, 19 111., 226 ; Quig- ley vs. Roberts, 44 Hi., 503; Hough vs. Doyle, 8 Blackf., 300. (7) Carturiglit vs. Wise, 14 fll., 417. (8) Rhoads vs. Rhoads, supra. (9) Peak vs. Pricer, 21 111., 164. CH. I.] OF THE VARIOUS KINDS OF GUARDIANS. 223 without SO doing, is eiToneous.(^) The fact, however, that the guardian ad litem of an infant defendant does not answer for the infant, will not deprive the court of jurisdiction over the infant, and render the subsequent proceedings void, while it may be error r^*) for the omission to appoint a guardian ad litem or his failure to answer, only renders the judgment voidable, not void.(^^j 6. In chancery, infants are always the wards of the court, and where testimony is tak(!n before a master in chancery without notice to the guardian ad litem of the infant defendants, it is not admissi- ble as against the infant defendants for want of such notice, not- withstanding the guardian may make no positive objection on the hearing. *) And where testimony Avas taken in a chancery suit by a person other than the master, and the record failed to disclose his appointment for that purpose, it was held he had no power to take it, and as against the infant, it was rejected, even though the guard- ian ad litem and the infant should consent to the taking of such testimony. (^^) Where the record shows the appointment, but no motion for such aj)pointment nor prayer therefor in the bill, it was held the court might, sua sponte, make the appointment.^^; It will be })resumed where th^ chancellor received the answer of a person as guaixlian ad litem, that he was regularly appointed, although it does not appear of record. (^) Where a person is sued with certain minor defendants in chan- cery, as their guardian, and appears, answers and defends in that capacity, procuring a reversal of the decree against the minors, upon a second decree being rendered against the minors, it will not be reversed, because the record shows no appointment of a guardian ad litem, or proof that such person was in fict guardian. (^) Nor will the fact that an answer of a guardian ad litem, neither admitting and waiving nothing, but leaving the complainants to prove their bill, was drafted by the solicitor of the complainant, be sufficient ground for reversing a decree. (,'') (i) Rhoads vs. Rhoads, 43 III., 239. (2) Goudy vs. Hall, 36 111., 313; Gage vs. Shroder, 73 111., 44. (3) Austin vs. Charlesloun Female Seminary, 8 Met., (Mass.) 196; Rut- ter vs. Puckhofer, 9 Bosw., (N. Y.) 63S; Peak vs. Shasted, 21 111., 137. (4) Turner vs. Jenkins, 79 II!., 229; Boyer vs. Boyer, 89 111., 447. (5) Fischer vs. Fischer, 54 111., 231. (6) Rhoads vs. Rhoads, 43 111., 239. (7) Williams vs. Stratton, 10 Sm. & M., 41S; Tibbs vs. Allen, 27 111., 119. (8) Tuttle vs. Garrett, 74 111., 444. (9) Hess vs. Voss, 52 111., 472. 224 OF THE VARIOUS KINDS OF GUARDIANS. [OH. I. An order appointing " the clerk of the court" guardian ad litem, is sufficient without designating him by name.(^) A court of equity may api)oint the clerk of the court and master in chancery to appear and answer for an infant defendant. (^) But in some of the states it is held impr<)})er to appoint the same person guardian ad litem and master in chancery.(^) The minority of a female ceases at the age of eighteen, and after that age, it is not necessary to ap[)oint a guardian ad litem for a female defendant over the age of eighteen and under twenty-one years of age.(*) c. The appointment of a guardian ad litem for a party to a suit, is conclusive evidence of his infancy for that purpose alone, and docs not affect the question of infancy which may be raised subse- quently by the proper plea.^^j d. Where it is necessary, a guardian ad litem may employ coun- sel, and the court will allow a reasonable sum for his charges and expenditures in defending the interest of his wards, infant defend- ants, and tax the same as costs. Such costs must be taxed against the person at whose instance the ai)p()intment was made, and- must be taxed in the original suit while it is still pending, and can not be made after the case has been disposed of and gone off the docket. And a guardian ad litem appointed to defend the infant, who incurs reasonable expenses, should be reimbursed, and for that purpose, may have a guardian appointed by the county court, and recover the same in the usual mode against such guardian, and collect it out of the minor's estate. '^^; (i) Hess vs. Voss, 52 111., 472. (2) Muir vs. Stewart, i Murpli., (N. C.) 440. (^) Walker vs. Hallett, i Ala., ^79; McVicker vs. Constable, Hopk., (N. Y.) 102. (4) Kester vs. Stark, 19 111., 32S ; Bursden vs. Goodspeed, 60 111., 277. (5) Peak vs. Pricer, 21 111., 164. (6) Smith vs. Smith, 69 111., 30S. CH. I.] OB' THE VARIOUS KINDS OF OUAIIDIAXS, 225 ADDITIONAL NOIES. 1. Infant^Who may prosecute and defend suits for inf-^nts. 2. Testamentary guardian should give bond and be conunissioned, when. 3. liond for costs in suit in behalf of a minor — When it may be tiled. 4. Public guardians — Appointment — Term of office. 5. Oath of a public guardian. 6. Failure of guardian to qualify — Public guardian shall act. 7. Powers and duties of the public guardian. 8. Of the public guardian — Bond. 1. Infant — who may prosecute and defend suits for INFANTS. — Ordinarily the statutory guardian is the proper peivson to rej). sent his ward in suits and all legal proceedings, and lie should do so unless some good reason shall ai)pear to the contrary. This must be adjudged by the court wherein the proceedings ai-e instituted. But the court n)ay apjioint or allow some other person to appear as next friend for a minor. Such person, however, should be one entirely suitable, and there should clearly be no conflicting interests between the infant and the party representing him.(^) A father claiming as tenant by the curtesy is not a proper person to act as the next friend of his infant child. (*) 2. Testamentary guardian should give bond and be commis- sioned. — The statute autliorizing a parent to appoint a testamentary guardian for the custody and education of the minor, and the custody of the property belonging to the minor's estate, does not dispense with the necessity of entering into a bond, to be appi-oved by the county court, and the receiving a commission to act. This may be dispensed with by will, but unless it is, the appointee will not become the guardian of the minor until bond is approved and the guardian named commissioned. And where one has been named as executor, and also as guardian by the will, until he has been discharged as executor and qualified as guardian by giving bond, and receiving his commission, he will be liable as an executor, and not as a guardian. (^) The county court, however, has equitable jurisdiction in the settle- (i) Patterson vs. Pullman, 104 111., 80. (2) 3. (3) Wadsworth vs. Connell, 104 111., 369. 226 OF THE VARIOUS KINDS OF GUARDIANS. [cH. I. raent of claims and of estates, and if one appointed by will as executor and also as testamentary guardian qualifies only in the former capacity, so that he is not the legal guardian, nevertheless acts as the guardian by loaning the funds of the estate, he may in equity be held liable as the guardian, should a loss occur.(*) 3. Bond for costs in suit in behalf of a minor — when it may BE FILED. — An action brought by the next friend of an infant without an order of appointment or the filing of a bond for costs, will not be dismissed if such bond be given when ordered by the court. The giving of a bond for costs is not a jurisdictional matter.(*) 4. Public guardian-^appointment — term of office. — That the governor of this state, by and with the advice and consent of the senate, shall, before the first Monday in December, Eighteen hundred and eighty-nine, and every foui- years thereafter, appoint in each county in this state, and as often as aiiy vacancies may occur, a suitable peivson, to be known as public guardian of such county, who shall hold his office for four years from the first Monday of Deceniber, Eighteen hundred and eighty-nine, or until his successor is appointed and qualified.(^) 5. Oath. — Every person appointed as a public guardian shall, before entering upon the duties of his office, take and subscribe and file in the office of the clerk of the county court the following oath, to-wit :(■*) FOIIM OF OATH OF A PUBLIC GUARDIAN. I do solemnly swear [or affirm, as the case may be] that I will support the constitution of the United States and the constitution of the State of Illinois, and that I will faithfully discharge the duties of public guardian of county, according to the best of my ability. 6. Failure of guardian to qualify — public guardian to ACT. — Whenever any guardian, appointed under the provisions of section three (3) of the act entitled "An act in regard to guardians and wards," approved April 10th, 1872, in force July 1, 1872, shall fail to qualify as such guardian at the expiration of three months from his or her ajjpointment, it shall be the duty of the court (i) Wadsworth vs. Connell, 104 III., 369. (2) The 111. Cen. R. R. Co. vs. Latimer, 128 111., 163; lb., 28 111. Ap., 552; Kingsbury vs. Buckner, 134 U. S., 650. (3) Kurd's R. S., g 53, 787. (4) lb.. I 54. CH. I.] OF THE VARIOUS KINDS OF GUARDIANS. 227 to appoint the public guardian of the county where the minor resides as guardian of the minor. (') 7. Powers — duties. — The public guardian, when appointed by the court, as provided in this act, shall have the same powers and his duties shall be the same as of guardians appointed under the provisions of section three (3) of the act entitled "An act in regard to guardians and wards," approved April 10, 1872, in force July 1, 1872.(^) 8. B(JND. — It shall be the duty of the county court to require of the public guardian, before entering upon the duties of his office, to enter into a bond, payable to the People of the State of Illinois, in a sum of not less than five thousand dollars, with two or more securities, approved by the court, and conditioned that he will faith- fully discharge all the duties of his office; and the court may, from time to time, as occasion may require, demand additional security of such guardian, and may require him to give the usual bond required of guardians in other cases; and in default of giving such bond within sixty days after receiving his commission, or in default of giving additional security within such time as the court may fix, after being duly ordered by said court so to do, his office shall be deemed vacant, and upon the certificate of the county judge of such fact, the governor shall fill the vacancy aforesaid. (^j (i) Kurd's R. S, ? 55, 7S7. (2) Ib.^ I 56. (3-) lb., \ 57 ; Laws of Illinois, 1889, 165, ■ 228 APPOINTMENT OF GUARDIANS. [CH. II. CHAPTER 11. AITOINTMENT OF GUARDIANS. 1. Appointment — ^jurisdiction. a. Form of a petition for the appointment of a guardian. b. Appointment — iiearing. c. Custody — estate. 2. Nominalion by tiie court — jurisdiction. a. Ncjmination by minor. b. P^orm of a nomination of guardian. c. Form of a nomination by minor having attained the age of fouiteen, having previously had a guardian appointed by tiie court. d. Representation — minor being over fourteen witiiout guard- ian — form. e. Citation to minor — form. J. Service and return. g. Who are orphans, and who ehgible as guardians. h. Parents not being fit and competent — form — hearing. 3. Testamentary guardians. 4. Guardian's bond. a. Of its execution. b. Form of a guardian's bond. c. Filing and approval. d. Without bond appointment void. e. When appointment void. f. Recjuisites of bond. g. Liability of securities — actions thereon. 5. Letteis of guardianship — form. 6. Record of appointment. a. Mnal order on petition for appointment — form. b. V\n:\\ order on nomination — form. 7. Review of tiie api:)ointnient. 1. Ai'i'OiNT.\rENT — JURISDICTION. — The county convts in their respective counties may, when it shall appear necessary or conve- nient, appoint guardians to minors, inhabitants of or residents in the same county, and to such as reside out of this state, and have an estate within tlie same, in the county where the real estate or K)nie part thereof may lie ; or if he has no real estate, then in any county where he may have personal property. (^) (i) Kurd's R. S Chap. 64, I 2. CH. II.] APPOINTMENT OF GUARDIANS. 229 a. The appointment is made usually upon the petition of some one interested in behalf of the minor; and may be in form as follows : PETITION FOR THE APPOINTMENT OF A GUARDIAN. State of Illinois,) In the County Court, County, r To the term, K. D. i8... To the Hon Judge of the County Court of said County : Your petitioner, A B, of the county of , and State of Illinois, would respectfully represent that C D, departed this life on the. ..day of. , A. D. i8..., and that E D, his widow, departed this life on the. ..day of. , A. D. i8... That the said C D and E D, left surviving them, G D and H D, who are minors, aged respectively as follows, to-wit: The said G D, being-. .years of age on the. ..day of. A. D. i8..., and the said H D, being aged. ..years on the-. .day of , A. D. iS..., and that said minors are both residents of this county. That said minors have no testamentary or other legal guardian residing in this State. Your petitioner would further represent, that said minors own the following described real estate, as tenants in common, situate, lying and being in the county of- , and State of Illinuis, and known and described as follows, to-wit : [ ] The yearly rental value of whicli your petitioner believes to be dollars; and personal estate consisting of notes, mortga- ges, live stock and other property amounting in value to dollars. Your petitioner would represent that he is the uncle of said minors, and desires the appointment as their guardian upon his giving bond as provided by law. x\nd your petitioner as he is in duty bjunJ will ever pray, etc. By Attorney. A B. State of Illinois, ) County. ) A B, being duly sworn, deposes and says that the facts averred in the a! ove petition are true, according to the best of his knowledge, information and belief. A B. S.vorn to and subscribed before me , Clerk of the County Court of County, this---day of. , A. D. iS-- , Clerk. }). U[)on application beiu'^ made for the appointment of a i;'uardian, unU^.ss the j)roper })er.sons are bcifore it, the e' vs. Chamberlain, i Redf,, (N. Y.) 333; Bennett vs. Byrne, 2 Barb. (N. Y.j Ch., 216; Badenhoof vs. Johnson, 11 Nev. 87; Succession of Fuqua, 27 La., Ann. 271. (id) Sessions vs. Kell, supra ; Kellev vs. Smith, 15 Ala., 687. (11) DibbV vs. Dibble, 8 Ind., 307; Young vs. Lorain, n 111., 624. CII. II.] APPOINTMENT OF GUARDIANS. 231 Under our statute, if the ward is above the age of fourteen, he may nominate his own guardian, who, if approved by the court, shall be appointed accordingly ; if not approved by the court, or if the minor resides out of the state, or if after being cited, he neglects to nominate a suitable person, the court may nominate and appoint his guardian in the same manner as if he was under the age of fourteen years. Provided, that in all cases when a guardian has been appointed by the court while the minor was under the age of fourteen yeai's, such minor, on attaining the age of fourteen years, may at his election nominate his own guardian, who shall be ap- j)()inted by the court if deemed a suitable person, and the new guardian so appointed, shall supercede the former one, whose func- tions shall thenceforth cease and determine; and it shall be the duty of the former guardian to deliver up to his successor all the goods, chattels, moneys, title papers and other effects belonging to such minor, in like manner and subject to the same penalties as are provided in the fortieth section of this act, upon the removal, death or resignation of a guardian. ;^) b. The nomination may be in form as follows: NOMINATION OF GUARDIAN. State of Illinois, \ /n the County Court, County. J To the term, A. D. i8... To the Hon , Judge of said Court : The undersigned would respectfully represent unto your honor, that he is a minor heir of, and entitled to a distributive share in the estate of , late of said county, deceased. That said estate consists of the following described personal property, viz. : [//ere describe the personal property, 1 and real estate described as follows, to-wit : [//ere describe the real estate.'\ The yearly rental value of which is dollars. That your petitioner was fourteen years of age on the. .day of , A. D. i8..., and elects to nominate as his guardian , who has consented to act if appointed, and respectfully prays that his nomination may be confirmed by your honorable court, and the said be appointed as his guardian upon entering into bond with good and approved security as provided by law. Attest d. Where the minor has a guardian appointed for him previous to his arriving at the age of fourteen, the form of nomination may be as follows : (i) Kurd's R. S., Chap. 64, g 3. 232 APPOINTMENT OF GUARDIANS. [cH. II. NOMINATION BY MINOR ON ATTAINING THE AGE OF FOURTEEN. State of Illinois,) In the County Court, County. ]^^- To the term, A. D. iS... To the Hon iJn^fgc of said Court: The undersigned respectfully represents that he is a minor, and heir of and entitled to a distributive share in the estate of late of said coun- ty, deceased, amounting in value to dollars. That, heretofore, to-wit : on the. ..day of. ,A. D. i8..., the undersigned being then under the age of fourteen years, was by this court ap- pointed as his guardian ; that, having now attained the age of fourteen years, and being fourteen years of age on the. ..day of. , A. D. iS-.., he elects to nominate his own guardian, and respectfully prays that may be by your honorable court appointed as his guardian. Dated this-. .day of. , A. D. i8... By , his Attorney. e. If the minor neglects to appear and appoint his guardian, it is the duty of the court, upon proper representation being made in writing, to cause a citation to issue for liini. The representation may be in form as follows : representation — MINOR BEING OVER FOURTEEN WITHOUT GUARDIAN. State of Illinois, 1 In the County Court, County. J -^■^- To the term, A. D. iS— To the Hon , Judge of said Court : Your petitioner would respectfully represent unto your honor, that and , are orphan minors above the age of fourteen years, the said being aged... years on the. ..day of , A. D. i8..., and the said being aged... years on the... day of. , A. D. i8...; and that they have no legal guardian residing in this State. That they have an estate amounting, as your petitioner believes, to dollars, and that it would be to the inter- est of the said minors, and their welfare requires a guardian appointed for them : Wherefore your petitioner prays that a citation may issue notifying them to be and appear before the term, A. D. iS-., of this honorable court, and make choice of a guardian as the law directs, and in case of their refusal or neglect so to do, that your honor will cause some suitable person to be appointed for them. And your petitioner will ever pray, etc. By his Attorney. Subscribed and sworn to, before me this-. .day of. , A. D. iS..., by the said the petitioner in the above petition. , County Clerk. /. Upon presentation of the petition to the court, it is his duty to examine tlie same and cause a citation to issue, wliich may be in form as follows ; CII ri ] APPOINTMENT OF GUARDIANS. 233 citation to minor. State of Iij.inois, 1 Loiiuty. J T/ie People of the State of Illinois, to and , minors, etc. : Wliurcas, it has he^ii reiiresentcd by upon a petition filed herein to the county court of county, at its term, A. I). i8...,that you the said and , are orplian niintjrs over the age of fourteen years re- spectively and have no guardian ; tlierefore, you are hereby cited to be and appear before the county court, at the term, A. D. i8...,to be holden at the court hiouse in , in said c junty, and choose a guardian, in de- fault whereof the court will appoint one for you. Witness my hand and the seal of said court, at , in said county, this. ..day of. , A. D. i8... lSeal.~\ , Clerk County Court. f/. The citation sliould be sjiven to the officer wlio.se clutv it i.s to serve tlie .same, aiul then return the same back into the office of the clerk of the county court. The return of the officer may be in form as follows : officer's return. State of Illinois, 1 • County. /•^•^' I have duly served the within citation by reading and delivering to and each a copy of the same as I am therein commanded. Dated this. ..day of. , A. D. iS-. , Siieriff of County, Illinois. If the minor be under the age of fourteen, no citation is necessary. A minor over the age of fourteen, may ap])ear in open court and select his guardian ; but the better practice is, to file a petition or nomination. L The word orphan, in the statute, giving jurisdiction to the probate court to aj)[)oint guardians to minors who are orphans, means a fatherless child. (^) In the appointment of a guardian, the mother, and after her, the next of kin, are entitled to preference, unless shown to be un- suitable. (^) Coverture is no incapacity for the office of guardian. ('') It (i) Stewart vs. Morrison, 38 .Miss., 417 ; Poston vs. Young, 7 J. J. Marsh., (Ky.i 501. (2) Albert VS. Perry, 15 N. J. Eq., i McCart., 540; Allen vs. Peete, 25 Miss., 29. (3) Farrer vs. Clark, 29 Miss.. 195. 234 APPOINTMENT OF GUARDIANS. [cH. II. would seem, however, that a single woman, by her marriage, loses her guardianship, but she may be reappointed.(^) The guardian.shij) of the infant's estate may be appointed to one, and the custody and tuition of the minor to another.(^) Where the father of the minor or the mother are not fit persons, or are not competent to transact their own business, it is the duty of the court, upon petition and proof being made to the court of that fact, to appoint some other })erson.(^) The relation of parent forms no exclusive claim to the w^ardship of a child, and it is competent for the county court to set aside such claim in favor of a stranger, if it apjjear that the parent is unfit for the trust.(*) Where the parents are not fit persons to have the care and cus- tody of their children and their property, the petition for the appointment of some other person may be in form as follows : PETITION FOR THE APPOINTMENT OF GUARDIAN — PARENTS NOT BEING FIT AND COMPETENT PERSONS. State of Illinois, \ In the County Court, County, j To the term, A. D. i2>... To the Hon .Judge of said Court: Your petitioner , would respectfully represent and show unto your honor, that one , late of said county, deceased, by his last will and testament, now of record in this honorable court, reference being made thereto, bequeathed to one , his nephew, the sum of- dollars. That said is a minor aged. ..years, on the. ..day of. , A. D. i8..., and has now living one , his father; but so it is, may it please your honor, the said although legally entitled to be appointed the guardian of the said , is incapacitated and wholly unfit from accepting said appoint- ment by reason of drunkenness and debauchery, he being thereby rendered unfit and incompetent to transact his own business. And your petitioner would further show unto your honor, that the mother of the said is now deceased, and that it is necessary for the said to have some suitable person to be appointed as his guardian, in order that he may receive the legacy aforesaid to which he is entitled: Wherefore, in consideration of the premises aforesaid, your petitioner prays that one , an uncle to the said , may be apjiointed as his guardian, and that the said , father of the said , may be notified of this proceeding, and that your honor will also cause a day to be appoint- ed fur the hearing thereof. And your petitioner will ever pray, etc. By ,' Attorney. (i) 2 Kent's Com., 225 ; Palmer vs. Oakley, 2 Dough, (Mich.) 433. (2) Hurd's R. S., Chap. 64, \ 6. (3) lb.. I 4. (4) Huie vs. Nixon, 6 Port., (Ala.) 77. CH. II.] APPOINTMENT OF ODARDIAXS. 235 State of Illinois, \ County. i , who is the petitioner in tlie fore.Q:oing petition, on oath states, tliat he has heard the same read over, and tliat the matters and facts stated therein, are true. Subscribed and sworn to before me this. -day of- , 'A. D. iS-.- , Clerk of the County Court. U])on the petition beinii;; filed and ])rcscntcd, the Judj^e shall cause a day to be assit>;ned for the hearing, and notify the relative of the minor rcsirovidcs that the guardian shall not give bond, no bond will be required, otherwise he must conform to the provisions of the statute in regard to giving bond. 4. Guardian's bond. — The county court shall take of the guardian appointed by it, a bond, payable to the People of the State of Illinois, with at least two sufficient sureties, to be approved by the court in a reasonable amount, which shall in no case be less than double the amount of the minor's personal estate, and six times the amotuit of the qvosh aniuial income of the minor's real estate: Provided, however, that if such real estate is improved, or is covered in whole or in part with timber, or is improved in part and in part covered with timber, the penal sum in said bond shall be increased by an amount at least double the value of the said improvements, or of said timber, or both as the case may be"; and «aid bond shall be conditioned substantially as follows: (i) Kevan vs. Waller, ii Leigh, (Va.) 414. 236 APPOINTMENT OF GUARDIANS [CH. II. Tiie condition of liiis obligation is such, that if the above bounder. {name of the guardian), who has been appointed guardian o^{?ia>neofinfani), shall faithfully discharge tiie office and trust of such guardian according to law, and shall make a true inventory of all the real and personal estate of the ward, that shall come to his possession or knowledge, and return the same unto the cdunty court of county, at the time required bylaw, and manage and dispose of all such estate, according to law, and for the best interest of said ward, and faithfully discharge his trust in relation thereto, and to the custody, nurture and education of said ward, and render an account, on oath, of the property in his hands and of the management and disposition of all such estate, within one year after his appointment, and at such other times as shall be required by law or directed by the court ; and upon removal from office, or at the expiration of his trust, settle his accounts in said court, or with the ward or his legal representatives, and pay over and deliver all the estate, title papers and effects remaining in his hands, or due from him on such settlement, to the person or persons law- fully entitled thereto, then this obligation shall be void, otherwise to remain in full force and virtue. (i) a. When any person shall at the same time be appointed guard- ian for several minors, the court may, if the estate shall be so situ- ated as to make it more convenient or advantageous to the interest of the ward, include all in one bond.(^) For example : When a part of the minors are old enough to select their own guardian, while others are under tiie age necessary to make such selection ; the one pre- sents the matter to the court by a nomination, while the other is presented by a petition to the court by some relative or fri(jnd, ask- ing for the same person to be appointed guai'dian for the minors under the age necessary to make choice, that has been selected by those who are of sufficient age, and where the court appoints the same person guardian for all of them, one bond is sufficient, and the court may include all in one bond, 6. The guardian's bond may be in form as follows: guardian's bond. Know ALL MEN by these presents, That we and and , of tlie county of , and State of Illinois, are held and firmly bound unto the People of the State of Illinois, for the use of and , in the penal sum of. dollars, which payment well and truly to be made and performed, we and each of us do hereby bind ourselves, our heirs, execu- tors, administrators and assigns jointly, severally and firmly by these presents. Witness our hands and seals, this-. .day of. , A. D. iS... The condition of this obligation is such, that if the above bounden , (i) Ilurd's R. S., Chap. 64, ? 7. (2) flurd's R. S., Chap. 64, ? 10. CH. ir.] APPOINTMENT OFGUARDFANS. 237 who has been appointed guardian of. and , shall faithfully dis- charge the ofTice and trust of such guardian according to law, and shall make a true inventory of all the real and personal estate of the ward, that shall come to his possession or knowledge, and return the same unto the county court of county, at the time required by law, and manage and tlispose of all such estate according to law, and for tlie best interest of said ward, and faithfully discharge his trust in relation thereto, and to the custody, nurture and education of said ward, and render an account, on oath, of the property in his hands and of the management and disposition of all such estate, within one year after his appointment, and at such other times as shall be required by law or directed by the court ; and upon re- moval from office, or at the expiration of his trust, settle his accounts in said court, or with the ward or his legal representatives, and pay over and de- liver all the estate, title papers and eflfects remaining in his hands, or due from him on such settlement, to the person or persons lawfully entitled thereto, then this obligation shall be void, otherwise to remain in full force and virtue. [l. s.' Signed, sealed and delivered ) [l. s." in presence of J [l- s.^ Statp: of Illinois, \ County of j I, , in and for said county and State, do hereby certify that and , who are each personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and deliv- ered said instrument as their free and voluntary act, for the uses and pur- poses as therein set forth. Given under my hand and. ..seal, this. ..day of , A. D. i8... This bond examined and approved by me, this. ..day of , A. D. i8... , Judge of the County Court. c. The bond should be filed and presented to the court, and if approved, the judge should indorse his approval thereon, and order that letters of guardianship issue to the guardian named therein, and it will be the duty of the clerk of the court to thereupon issue the letters to the guardian duly appointed. d. The guardian has no power to act as such, or to control the property of his ward, until he has given the bond required by the statute. Letters of guardianship issued to the guardian before such bond is given, confer no such power and l>ave uo legal effect whatever.(^) (i) Carpenter "s Sloane, 20 Ohio 527, 15 238 APPOINTMENT OF GUARDIANS. [CH II. Letters of guardiansliip need not in fact issue. The guardian derives liis power to act from the appointment and hond.(/) e. While there is a valid guardianship unrevoked, the appoint- ment of another person as guardian of the same minor is void, and a guardian's bond, executed by him and sureties, is a nullity.(^) /. If the conditions of a bond, though differing from, are not at variance with the requirements of the statute, the bond is valid.(^) Where a bond was given payable in the wrong name, as in the name of the j)eople, instead of the infant, the court corrected the mistake, and considered the bond as valid as if taken in the name of the iufant.(*) Where a guardian's sale has been examined and confirmed by the court, and tlie journal entry shows that a bond has been directed, and securities approved, it will be presumed that a bond was executed. (^) g. The sureties upon the general bond of a guardian are liable for the rents of the lands of the ward leased by the guardian, not- withstanding the statute requires the guardian to give a special bond before leasing the lands of his ward. The giving of the new bond required by the statute, cannot be construed as a release from the ultimate liability of the sureties on the general bond.(^) A suit on the bond of a guardian, .against the sureties, might be maintained without settlement or liquidation by suit or otherwise ascertaining the amount of the liability of the guardian, as a guardian cannot prevent an action on the bond by refusing or fail- iner to render an account.!' I W^henever he has committed a breach of any of the conditions of the bond, he is liable to an action. (^) Wliere an order of the probate court is made, directing the guardian to pay over to his successor a certain amount found due in his hands belonging to the ward, it is conclusive upon the guard- ian, unless the order can be impeached for fraud or collusion. And where a guardian was required to give supplemental security on his (i) Maxon vs. Sawyer, 12 Ohio, 195. (2) Thomas vs. Burrus, 23 Miss., 550. (3) Probate Court vs. Strong, 27 Vt., 202. (4) Wiser vs. Bhichly, i Johns. Ch., (N. Y.) 607. (5) Ma.xson vs. Sawyer, supra. (6) Wann vs. The People, 57 111., 202. (7) State vs. Humphreys, 7 Ohio, 223; Wann vs. The People, supra: (6) Wann vs. The People, .j^c/ra. fliunhatn vs. People, 102 111., 434. CH. II.] APPOINTMENT OF GUARDIANS. 239 bond, already executed, and the security signed and sealed the (ornier bond, l)y so signing, he became liable as an original obligor, and his liability will be the same as if he had signed the bond with the other parties at the same time they signed it.(*) A claim against a guardian's estate, for moneys coming into his hands belonging to his wards, is not barred within five years after the majority of the wards. The claim will not be barred so long as an action may be brought upon the guardian's bond, to enforce its VQCovevy ;[^ ) and the limitation runs only from the time the cause of action accrues, and not from the date of the bond.(^) The liability of a surety upon a guardian's bond, before breach in the condition of the bond, is a conditional liability, within the meaning of the second clause of section 19 of the Bankrupt law of March 2d, 18G7,and a discharge in bankruptcy, releases the surety from such lia- bility. (*) As the liability of a surety upon a guardian's bond is not a debt, created by him whilst acting in a fiduciary character, within the meaning of the exception of the Bankrupt Act, which provides that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation in a public office, or while acting in a fiduciary capacity, shall be discharged under the act.(^) Bonds may be put in suit in the name of the people of the State of Illinois, to the use of any person entitled to recover on a breach thereof, and damages assessed and proceedings had thereon, as in other cases of penal bonds. C^) The bond of a guardian covers property received by him in another state. C^) Where a bond of the guardian was held void at law on the ground that the sureties were justices of the county, and therefore both obligors and obligees, the bond was enforced in equity. (^) Until the removal of a guardian from his trust, a suit will not be authorized by his infant wards on his bond for the recovery of money in his hands. (^) (i) Ammons vs. The People, ii 111., 6. (2) Scheel vs. Eidman, 77 111., 301. (3) Isonham vs. People, 102 111., 434. (4) Reitz vs. The People, 72 111., 435; Jones vs. Knox, 46 Ala., 53; Amoskeaic^ Mfg. Co. vs. Barnes, 49 N. H.,312; Bowie vs. Puckett, 7 Humph., (5) Id. [ (Tenn.) 169. (6) Kurd's R. S., Chap. 64, ^ 11. (7) McDonald vs. Meadows, i Mc-tc, (Ky.) 507. (8) Butler vs. Durliam, 3 Ired., (N. C.j 589. (9) Ely vs. Hawkins, 15 Ind., 230. 240 APPOINTMENT OF GUARDIANS. [CH. II. Althongli an order of the coiintv court appointing a guardian, may by mistake recite tlie name of the ward incorrectly, yet, a bond taken according to the proper requisitions, with the correct name recited, will be sustained as an official boud.(') A ])robate bond is not to be avoided for slight defects committed through carelessness or error. An instrument intended as a guard- ian's bond will be sustained, although the names of the wards are recited in the wrong place.(^) So, too, if a guardian's bond contains more than the statute requires, it is not thereby invalidated. And it is valid if it does not recite the fact of his appointment. And if the condition relates to only a part of his duty, it is not void, but is valid to the extent of the condition. (^) And although a guardian's bond be inartificiatly drawn, it will not thereby be invalidated.(*) It is made the duty of the judge of the county court, at the Jan- uary and July terms of the court in each year, to inquire into the sufficiency of guardians' bonds, and to require from such as are found not to have good security, new bonds. Guardians failing to comply with the order, may be removed. (^) For further authorities on the subject of guardian's bond, see Chapter XII, post., on the rights and liabilities of sureties on a guardian's bond ; and Chapter III, part I, upon the liabilities under the bonds of executors and administrators. 5. Letiers of guardianship. — The steps neces^jiry to be taken in the appointment of a guardian are few, and usually noth- ing need be dcme, but file the petition or nomination ; present it to the judge; have it approved; ascertain the amount of bond required ; j^rocure and fill out a bond with two good and sufficient securities, sign it and have them sign it; file and })resent it to the court ; have it approved, and then obtain from the clerk of the court your letters of guardianship, which may be in form as follows : LETTERS OF GUARDIANSHIP. State of Illinois, \ /;/ i/ie Couniv Court, County, r To the term,'A.D.i?,... The People of the State of Illinois, To fif said County — Greeting : Whereas, at the term of the county court of said county, A. D. (i) State vs. Perkins, i Jones, (N. C.) 325. (2) State vs. ^hlrtin, 69 N. C, 175. (3) Pratt vs. Wright, 13 Gratt., (Va.) 175. (4) Probate Court vs. Strong, 27 Vt., 202; Alston vs. Alston, 34 Ala., 15. (5) Kurd's R. S., Chap. 103, \ 4; ante page 29. CH. II.] APPOINTMENT OF GUARDIANS. 241 i8..., holden at , you were, by order of said court, duly entered of record on the. ..day of said month duly appointed guardian for , aged... years, on the. ..day of. , A. D. i8..., and , aged. ..years, on the. ..day of. , A. D. i8... Trusting in your fidelity, therefore, the said court does, by these pres- ents, constitute and appoint you to be guardian unto said minors, and author- ize and empower you to take and have the care of their persons and the custody and management of their property, and frugally, without waste or destruction, to improve and account for the same in all things according to law. Witness, , Clerk of the County Court of County, [Seal.] and the seal of said court, this. ..day of. , A. D. i8... , Clerk of the County Court. 6. Record of appointment. — After issuing the letters of guardianship, the clerk of the court makes up the record of the appointment, which may be in form as follows : a. FINAL ORDER APPOINTING GUARDIAN. State of Illinois, \ /« i/ie County Court, In Probate, County. ]^^- ierm,A.D.i?,... Present: Hon -Judge, Attest: Clerk. In the matter of the guardianship "| of and , minor heirs > Appointment of Guardian. of... , deceased. J And now on this day, the same being the... judicial day of the present term of this court, comes the said , by , his attorney, and files and presents his petition herein to the court, and asks that a guardian may be appointed for and , minor heirs of. , deceased. That the said is aged. ..years, on the. ..day of. , A. D. iS..., and the said is aged. ..years, on the. -.day of. , A- D. iS-.-, and that said minors have no guardian residing in this State. And it appearing to the court from the evidence adduced, that all the facts alleged in said petition are true, and that the said is the uncle of the said minors and a suitable person to have the estate, custody, education and maintenance of said minors. It is ordered, That the said be ap- pointed guardian of the person and estate of the said and , upon his entering in bond in the sum of. dollars, with at least two good and sufficient securities to be approved by the court as provided by law. And now again comes the said , and presents to tlie court his bond for the approval of the same, with , and , as his sureties thereon, and the court having examined the same, and being now sufficiently advised and satisfied in the premises concerning said bond and the suffi- ciency of the sureties thereon. It is ordered. That the same be approved and filed, and that letters of Guardianship be issued to the said the guardian dulj' a**V''>inted. 242 APPOINTMENT OF GUARDIANS. [cH, II. b. FINAL ORDER — NOMINATION MADE BY MINOR HAVING ATTAINED THE AGE OF FOURTEEN. State of Illinois, \ In the Comity Court, In Probate, County, i ^^- term, A.D. 18... Present: Hon. Judge. Attest: Cterk. In the matter of the guardianship \ of , minor heir of , \ Nomination of Guardian. deceased. J And now on this day, the same being the. ..judicial day of the present term, of this court, comes the said , by , his attorney, and files and presents his nomination herein to the court, nominating , to be his guardian, and asks that said nomination may be confirmed. And the court having examined the same, finds that each and every allegation thereof is true, viz. : That is a minor heir of , de- ceased, and entitled to a distributive share in his estate, and that he is aged fourteen years on the-. -day of- , A. D. 18...; and that , the person whom he has nominated to be his guardian, is a suitable person to have the care of the person and estate of the It is therefore ordered, That said nomination be confirmed, and that be required to enter into bond, with at least two good and suffi- cient sureties, in the penal sum of. dollars, as provided by law. And now again comes the said , , and presents to the court his bond for the approval of the same, with , and , as his sureties thereon, and the court having e.xamined the same, and being now sufficiently advised and satisfied in the premises concerning said bond and the sufficiency of the sureties thereon. It is ordered, That the same be ap- proved and filed, and that letters of guardianship issue to the said , the guardian duly appointed. 7. Review. — Error in the appointment of a guardian, can only be reversed in a direct proceeding on the appointment.(^) The j)robate judge is invested with a sound legal discretion in the appointment of guardians, and his judgment should not be overruled, except in cases of manifest error, or abuse of such dis- cretion. (*) A mere stranger, with no allegation of relationship, or present or prospective interest in tiie property, cannot appeal from an order appointing a guardian. (^j Where one procured the appointment of (i) Speight vs. Knight, 11 Ala., 461 ; Tutorship of Hughes, 13 La. An., 380; Fitts vs. Fitts, 21 Texas, 511. (2^ Sadler vs. Rose, 18 Ark., 600; Wynne vs. Always, i Murphey, (N. C.) 38. (3) Rorback vs. Van B!a- com, 20 N. J. Eq., 461. Cil. II.] APPOINTMENT OF GUARDIANS. 243 a guardian for the minor, without the consent or knowledge of the father of such minor, for the purpose of secretly obtaining title to the minor's land, for his own benefit, the proceedings were held to be a fraud upon the minor's rights. (^) Where a minor selects his guardian, and the probate judge in his discretion, refuses to appoint the person so selected, the right of appeal is allowed. For, if the person chosen by the minor, is an unobjectionable person, the minor lias a right to have him appointed, and the refusal of the judge to approve the choice made, must be founded on sufficient reason, and I lis decision is reviewable. (*) (i) Tongvs. Marvin, 26 Mich., 35. (2) Adam's Appeal, 38 Conn., 304. 244 APPOINTMENT OF GUARDIANS. [cH. II. ADDITIONAL NOTES. 1. County court may appoint guardian. 2. Guardian appointed in one state no authority over property in another. 3. County court may remove guardian fraudulently appointed. 1. County court may appoint guardian. — The domicile of the infant is tlie fittest place for the appointment of a guardian of his peisou and his estate, but for the protection of either, a guardian may be ajipointed iu any state where the person or any property may be found. (^) 2. Guardian appointed in one state no authority in ANOTHER. — But a guardian in one state has no authority over the property in another state, except by the comity of the latter. (^) 3. County court may remove guardian fraudulently appointed. — Should there be a fraudulent suppression of facts in making an application for the appointment of a guardian, or any fraud or misrepresentation used, the county court may properly vacate its order, and declare such appointment void ab initio, where the rights of third persons have not intervened. (^) (i) Lamar vs. Micou, 112 U. S., 452. (2) Jb. 13) Pease vs. Roberts, 16 III. Ap., 634. CH. Ill ] THE INVENTORY. 245 CHAPTER III. THE INVENTOUY. I. inventory. a. What it should contain. d. Form of an inventory of guardian. c. F"iHng and approval. 1, Inventory. — The guardian shall, within sixty days after his appointment, or, if the court is not in session at the expiration of that time, at the next terra thereafter, return to the court a true and perfect inventory of the real and personal estate of the ward, signed by him and verified by his affidavit. As often as other estate shall thereafter come to his knowledge, he shall return an inventory thereof, Avithin sixty days from the time the same shall come to his knowledge. (^) a. The inventory shall describe the real estate, its probable value and rental, and state whether the same is incumbered, and if incumbered, how, and for how much; what amount of money is on hand ; and contain a list of all personal property, including an- nuities and credits of the ward, designating them as "good," " doubtful," or " desperate," as the case may he.[^) b. The inventory of a guardian may be in form as follows: inventory by guardian. State of Illinois, 1 ^^ r- i ^ } ss. County. J In the matter of the Guardianship of , minor heir of. , deceased. The following is a lull, true and perfect inventory of all the Real and Personal estate of the ?roperly invest it for the benefit of his ward, or be chargeable himself with interest upon the same.(') 7. Duty to educate ms ward. — The guardian of a minor shall have, under the direction of the court, the custoly, nurture and tuition of his ward, and the care and management of his estate.^) The guardian shall educate his ward, and it is made the duty of all civil officers, to give inform ition to the county court of any neg- lect of the guardian to educate his ward.^^) And where there is not money of the ward sufficient to teach him to read and write, and the elementary rules of arithmetic, and the guardian fails or neglects to have him so educated, the court shall have the power to put out the ward to any other person ibr the purpose of having him so educated. (^"j (i) Bond vs. Lockwood, 33 III., 212. {2) Huffer's Apjieal, 2 Grant (Penn.) Cas.,341. (3) Rowan vs. Kirkpatrick, 14 III., i. (4) Matter of .Stafford, 11 Birb., (N. Y.)353; Wren vs. Kirton, 11 Vesey, 377; Mason vs. VVhittliorne, 2 Coldw., (Tenn.) 242; mite pages 33 and 34. (5) Knowlton vs. Bradley, 17 N. H., 45S; Atkinson vs. Whitehead, 66 N. C, 296. (6) Kuowlton vs. Bradley, supra; Baker vs. Ricliards, 8 Serg. & R., 12. (7) Reynolds vs. Walker, 2'j M iss.. (7 Cush.) 250; Stark vs. Gamble, 43 N. H.,465 ; Brand vs. Abbott, 42 Ala., 499. (8) Hnrd's R. S., Chap. 64, I 4. (9) Hnrd's R. S., Chap. 64, \ 20. (10; Kurd's R. S., Chap. 64, \ 21. CH. IV.] POW'ERS, DUTIES AND LIARILITIES. 257 The guardian should supei'hitcnd the education and nurture of liis ward, and for that puri)ose, lie sliould first apply the rents derived from his ward's real estate, and next the interest on his money. (^) If he spend more than tiie income from his ward's estate, in the maintenance and education of the ward, without per- mission of the court, he may be held liable for the principal thus consumed. (^) And it is competent for the probate court to fix the amount to be expended in the maintenance and education of the ward, and to say how far the principal of the funds belonging to the ward shall be encroached upon.(^) And in a proper case, the profits of the ward's estate may be som3times anticipated, and an approi)riation of the principal be made for the support and educa- tion of the ward,(*) 8. Ltabiijty for money received. — A guardian using the money of his ward or neglecting to invest it, is chargeable with intercst.(^) So, too, he is liable for all losses of money belonging to his ward, incurred through culpable indifference and neglect.(®) And where he deposits money of his ward in a bank, in his own name, although the banking institution was then in good credit, but subsequently failed, and tor>li a certificate thereof payable to himself or order, the loss should fall upon him.(') Bnt he is not resi)onsi- ble for a misapjilication of tlie estate of the ward, by a co-gu.irdian, in which he had no agency,('') unless he should consent to his co- guardian's misapplication. C) Where money is paid by mistake to a guardian, and he pays it over to his ward before notice of such mistake, he is not liable for it.(^'*) The guardian is alone responsible for his ward's money, and its proper application ;(") and he is not protected in an improjier or unsafe use of it by the consent of the ward during minority. (^^^) (i) McKannavs. Merry, 6i 111., 177. (2) Frelick vs. Turner, 26 Miss., 393; Davis vs. Harkness, i Gilm., 173; Phillips vs. Davis, 2Sneed, (Tenn.) 520; Bybee vs. Tharp,4 B. Men., (Ky.)3i3. (3) Wiggle vs. Owen, 45 Miss., 691. (4) Withers vs. Hickman, 6 P.. Mon., (Ky.) 292. [(Ky-) 3- (5) Say vs. Barnes, 4 Serg. & R., (Penn.) 112; Karr vs. Karr, 6 Dana, (6) Rodgers' Appeal, 16 Penn. St., 36; Potter vs. Hiscox, 30 Conn., 508. (7). Jenkins vs. Walters, 8 Gill and J., (Md.) 218. (8) Kirby vs. Turner, Hopk., (N. Y.) 309. (9) Pirn vs. Downing, 11 Serg. & R., (Penn.) 66. (10) Massey vs. Massey, 2 Hill (S. C.) Ch., 492. (11) Nance vs. Nance, i S. C, 209. (12) Matter of Teyn, 2 Redf., (N. Y.) 306. 258 POWERS, DUTIES AND LIABILITIES. [CH. IV. "VVlierc he takes a note payable simply to himself, with no words to iii(li(-'ate that he takes it as guardian, he cannot, after the maker has gone into insolvency, show that it was taken on account of his ward's estate.(^) And if he should make an investment in bank stock, in his own name, though he be expressly authorized to invest in such stock, it renders him personally liable for the amount invested. C*) He may receive his ward's money, and when received, he is responsible for its application. If he misapplies it, no new liability is created against the parties from whom it was received, as it is not part of their duty to sec that he faitlifully applies it.(^) The guardian of a minor has the right to collect and receive money due to his ward on bond and mortgage, or to sell and assign the bond and mortgage in the exercise of his discretion as guardian.(*) 9. Liability for ward's property. — One who assumes to act for an infant as his guardian, can be held responsible for the property of the infant which may come into his hands and for the management of his estate, even though tliea|)pointment be a nullity. (^) The liability to the ward is not affected by a guardian's dis- charge in bankruptcy. (^) At common law, any act or omission which diminished the value of the estate or its income, or increased the burdens upon it, or impaired the evidence of title thereto, was considered waste. Guardians are cliargeable for waste committed or suffered by them.Q 10. Liability upon contracts. — A guardian can not, by his contract, bind the person or estate of his ward.(^) But, if he prom- ises, on a sufficient consideration, to pay the debt of his ward, he is personally bound by it, although he expressly promises as guard- ian. And a guardian who thus discharges the debt of his ward, may lawfully indemnify himself out of the estate of his ward, or if he be discharged from guardianship, he may have an action (i) Knowlton vs. Bradley, 17 N. H., 458. (2) Stanley's Appeal, 8 Penn. St., 431. (3) Mortimer vs. The People, 49 111., 473. (4) Livingston vs. Jones, Harrnigston Ch., (Mich.) 165. (5) Earle vs. Criim, 42 Miss., 165. (6) Re Maybin, 15 Bank. Reg., 468. (7) Bond vs. Lockvvood, 33 111., 212. (8) Forster vs. Fuller, 6 Mass., 58; Jones vs. Brewer, i Pick., (Mass.) 314; Shiff vs. Shif'f, 20 La. Ann., 269 ; Silnis vs. Norris, 5 Ala., 42 ; Tenny vs. Ev- ans, 14 N. H., 343 ; Tobin vs. Addison, 2 Strobh., (S. C.) 3; Sperry vs. Fan- ning, 80 111., 371. CH, IV.] POWERS, DUTIES AND liabilitip:s. 259 against the ward for money paid for his use.(^) For, if a guardian in his representative capacity, makes a contract or covenant which he has no right to make, and which is not binding upon the estate of the ward, he is personally bound to make it good.(^) A person dealing with a party having by law but a limited authority as a guardian, can have no right beyond what a rightful exercise of the authority would confer ;(^) and, if a compromise be made by a guardian, of a groundless and unjust claim against his ward, it will not be upheld in a court of equity, as to either guard- ian or ward.('') 11. Liability FOR negligence. — A guardian is bound to use ordinary prudence and diligence in managing the estate of his ward.(^) And where property is estimated to be worth thirty-five hundred dollars, and he takes a mortgage thereon, to secure a debt due to his ward, of about two thousand dollars, and afterwards permits it to be sold at public sale for five hundred and forty dollars, he will be guilty of such negligence as will make him responsible to his ward, for the loss.(^) So, too, he is personally chargeable with costs, where he institutes a suit in his ward's name, where no cause of a(!tion exists, even though he acted under the advice of counscLQ And where he accepts an unsecured note, in payment of a debt due to his ward, he will be guilty of laches, and held personally respon- sible for the amount of such note, even though he uses due diligence to collect it.(^) The verbal directions of a judge of probate, will not protect a guardian, and are not receivable in evidence in defense of his action. (^) It has been held, that if he loans his ward's money, and takes a bond signed by a principal and surety, and the principal is solvent, but the surety doubtful, he will be liable should the money thus loaned, be lost.(^'') In short, guardians arfe liable for all losses (i) Sperry vs. Fanning, 80 111., 371. (2) Mason vs. Caldwell, 5 Gilm., 196; Sperry vs. Fanning, supra. (3) Payne vs. Stone, 15 Miss., 7 Snieed & M., 367. (4) Underwood vs. Brockman, 4 Dana, ', Ky.j 309. (5) Savage vs. Dickson, i5 Ala., 256. (6) Jh. (7) McLean vS. Hosea, 14 Ala., 194. (8) Covington vs. Leak, 65 N. C, 594. (9) Folger vs. Hudel, 60 Me., 284; rtw/^page 43. *- (10) Hurdle vs. Leath, 63 N. C, 597. 260 POWERS, DUTIES AND LIABILITIES. [cH. IV. wlucli may be incurred througli culpable indifference and negligence, in the management of the estate of their wards,(') The duties and liabilities of guardians, in the collection and dis- bursement of their trust funds, are much the same as those of exec- utors and administrators as portrayed in Part I. (i) Taylor vs. Hite, 6i Mo., 14a; Royers' Appeal, 11 Penn. St., 36; Pot- ter vs. Hiscox, 30 Conn., 50&. CFT. IV.] POWERS, DUTIES AND LIABILITIES. 261 ADDITIONAL NOTES. 1. Authority of guardian — Acting without an order of the county court 2. Chargeable with interests— When. 3. Minors — The domicile of. 4. Failure of guardian to insure ward's property. 5. Investments — Guardian's duty. 6. Custody, etc., estate. 7. Liabilities. 1. Authority of guardian — acting without an order of THE COUNTY COURT. — A guai'clian may, without the direction of the county court, pay a claim which is secured by a deed of trust or mortgage, whicli is a direct and immediate charge upon the huid of his ward, and wliich, if left unpaid, would probably destroy th ,' ward's interest. (') An order of the court, however, is usually advisable. '2. Chargeable with interests — when. — Where his acts are beneficial to ihe interests of the ward, they should be allowed, and it would be injustice not to do so, although a guardian doing unnuthorized acts, even if done in good faith, does them at his own ri I\; but if they prove beneficial to the ward, the court will some- tiiiics adopt them. Especially is this so where the court would have directed them on application beforehand. (^) 3. Minors — domicile of. — The domicile of an infant is that of his father, if he be living; if not, then that of the mother; if the p.iients are dead, the guardian has the right to control the dumicihi of the infant. (^) The guardian has power to collect the arrears 1 f funds for the support of the ward, and secure their proper appli<.. ti()n.(*) In order to compound and release a demand against his Wiird, he should have the consent and approval of the county court before exercising such powers. (^) A guardian has no power to (i) Roland's Heirs vs. Barkley, i Brock., 356; Wright vs. Conley, 14 111. Ap. 551; Macpherson on Infants, 285. 12) 9 Am. and Eng. Ency. of Law, 107, 116; Cheney vs. Roodhouse, 135 111-, 257. (3) Lamar vs. Micou, 112 U. S., 452. (4) Bailey vs. Bailey, 115 111., 551. (5) Hayes vs. Mass. Life Ins. Co., 125 111., 626. 262 POWERS, DUTIES AND LIABILITIES. [CH. IV. appear for and enter the appearance of his ward in a suit, where the latter has not been served with process. (^) 4. Failure of guardian to insure ward's property. — If a guardian be guihy of gross negligence in failing to insure the ward's property, he may render himself personally liable, should a loss occur. He is not, however, even where he has trust funds in his hands, personally liable for a failure to insure the property of his ward.(*) 5. Investments — guardian's duty. — It shall be the duty of the guardian to put and keep his ward's money at interest, upon security to be approved by the court, or by investing, on approval of the court, the same in United States bonds, [or in the bonds of any county or city which are not issued in aid of railroads, and where the laws do not permit said counties or cities to become indebted in excess of five per cent, of the assessed valuation of property for taxation therein, and where the total indebtedness of such county or city does not exceed five per cent, of the assessed valuation of property for taxation at the time of such investment.]* Personal .security may be taken for loans not exceeding one hundred dollars. Loans upon real estate shall be secured by first mortgage thereon, and not to exceed one-half the value thereof. No mortgage loan shall be made for a longer time than three years, nor beyond the majority of the ward : Provided, the same may be extended from year to year without the a|)proval of the court. The guardian shall be chargeable with interest upon any money which he shall wrong- fully or negligently allow to remain in his hands uninvested after the same might have been in vested. (^) A guardian who permits his ward's money to lie idle, or who knowingly makes an illegal investment, or loans upon real estate security without the a])proval of the court, does the same at his own risk, and is liable to be charged compound interest. (^) In the absence of evidence to the contrary, it will be presumed that a guardian might have kept funds of his ward at interest. (^) (i) Dickison vs. Dickison, 124 111., 483. (2) Means vs. Earls, 15 111. Ap., 273. U) Laws of 111., 1887, 193; Hurd's R. S., 783, ? 22. (4) Hughes vs. The People, for use, etc., in 111., 457; Hayes vs. Mass. Life Ins. Co., 125 III., 626; Steyer vs. Morris, 39 111. Ap., 382. (5) Steyer vs. Morris, supra. *NoTE. — Amendment is the original section rewritten, to which was added the matter betw«ea the brackets. CH. IV ] POWERS, DUTIES AND LIAP.IEITIES. 263 6, Custody, etc., estate. — The guardian of a minor shall have, under the direction of the court, the custody, nurture and tuition of his ward, and the care and management of his estate. But the father of the minor, if living, and in case of his death the mother, they being respectively competent to transact their own business, and fit persons, shall be entitled to the custody of the person of the minor, and the care of his education. In case the father and mother shall live apart, the court may, for good reason, awai'd the custody and educa- tion of the minor to the mother, or other proper person: Provided, that whenever any person shall make any settlement upon or pro- vision for the support and education of any minor child, it shall be competent for the court, in case either the father or mother of such child be dead, to make such order in relation to the visitation of such minor child by such person or persons so making such settlement or provision as shall to the court seem meet and proper.(') 7. Liabilities. — Guardians of minors must discharge their duties with as much fidelity and care as prudent men ordinarily bestow on their own affairs, and when they have thus acted they are not responsible for a mere error in judgment. So, a guardian is not responsible for a loss occurring through an agent, on account of his dishonesty in cjllecting a claim belonging to his ward.(^j (i) Kurd's R. S., 781, § 4, as amended by act approved June 25th, 1883. (2) Holman vs. Blue, 10 111. Ap., 130; Hughes vs. The People, jo ill. Ap., 148. 264 RIGHTS AND LIABILITIES OF THE WARD. [cH. V. CHAPTER V. RIGHTS AND LIABILITIES OF THE WARD. 1. Rights in general. 2. Right to disaffirm acts done and contracts made during infancy. 3. Right of action by and against ward. 4. Right of action by ward against guardian. 5. Rights of the infant as to homestead. 6. Rights of the ward as to settlements. 7. Rights of the infant as to the doctrine of estoppel. 8. Right of election by ward. 9. Right to contract marriage. ID. Liability for the debts of the ancestor. 11. Liability of the infant for contracts. 12. Liability of the infant for wrongs. 1. Rights in general. — The necessity for guardians results from the inability of infants to take care of themselves, in contem- plation of law, until they have attained the age of twenty-one ;(^) and wards owe obedience to guardians, which courts will aid in en- forcing.(^) The possession of the guardian is tiie possession of the ward.(^) Real estate purchased by him with the ward's money, will be considered the property of the ward ;(*) and if he subscribe for bank stock in the name of his ward, it belongs, with all the pro- ceeds, to his ward on his reaching his majority.(^) He is never allowed to make money out of his ward ; what is made must be accounted for ;(^) and courts will presume strongly in favor of the ward, and against the guardian, if he has been delinquent or guilty of neglect.C^) Nothing can be admitted, but everything must be proved against an infant ; and a decree cannot be entered against an infant without (i) 2 Kent's Com., 233. (2) I Strange, 167; Hall vs. Hall, 3 Atk. Ch., 721. (3) Magee vs. Toland, 8 Port., (Ala.) 36. (4) In re Hamilton, 17 Sergt. & R., (Pa.) 144. (5) Brisbane vs. The Bank, 4 Watts, (Pa.) 92. (6) Eberts vs. Eberts, 55 Pa. St., no; Pinckard vs. Smith, 5 Litt., (Ky.i 331; Lee vs. Fox, 6 Dana, (Ky.) 171. (7) Jennings vs. Kee, 5 Ind., 257. cii. v.] nionTS and liabilities of tiif: wakd. 265 proof to sustain the case.(^) A guardian can not make admissions to bind an infant.(^) JSTcgligcnce can not be imputable to a child under five years of age, especially to one of less than ordinary capac- ity; and should a child be injured by the cars, they running with great S|)eed through a town, the cor[)oration operating the train will be liable. Ltiches are not imputable to an infaut.(^) A minor can not bring an advancement re(;eived by her mother into hotchpot, nor be charged with latches in omitting to do so.('') 2. Disaffirmance of acts and contracts made during MINORITY. — Most of the acts of infants are voidable only, and not absolutely void, and it is deemed sufficient if the infant be allowed, when he attains majority, the privilege to affirm or avoid, in his discretion, his acts done and contracts made in infancy. (^) If a minor contracts to sell real estate, the contract can not be enforced, if he refuses, after his majority, to sanction it.(^) Convey- ances made by an infant in j^erson, are voidable only, to be confirmed or repudiated at his discretion after he arrives at majority ;(^) but where a party during his infancy, has executed a conveyance of his real estate, he must, if he wishes to disaffirm the same, do so within a reasonable time after attaining his majority ;(^) and three years is held a reasonable time.(^) An infant female, who is unmarried, may convey her lands before attaining the age of eighteen, and her conveyance will only be voidable, and she will have then a reasonable time after she attains that age, to disaffirm the same;(^") but deeds made by infant married women are void. Such deeds were void at common law, and have not been authorized by the statute. Under our stat- (i) Hamilton vs. Oilman, 12 111., 260; Hitt vs. Onnshee, 12 111., 166; Tuttle vs. Garrett, 16 111., 354; Reddick vs. State Bank, 27 111., 148; Rhoads vs. Rhoads, 43 111., 239 ; AA'ilhite vs. Pearce, 47 111., 413 ; l>arnes vs. Ha,zleton, 50 111., 429 ; Preston vs. Hodgen, 50 111., 56 : Thomas vs. Adams, 59 111., 223 ; Quigley vs. Roberts, 44 111., 503. (2) Cochran vs. McDowell, 15 111., 10. (3) Chicago & Alton R. R. Co. vs. Gregory, 58 111., 226. {4) Barnes vs. Ilazleton, supra. (5) 2 Kent's Com., 234; Bliss vs. Perrvman, 1 Scam., 4S4. (6) Walker vs. p:ilis, 12 111., 470. (7) Cole vs. Pennoyer, 14 111., 158. (8) Blankenship vs. Stout, 25 111., 132. (9) Blankenship vs. Stout, supra; Harrer vs. Wallner, 80 111., 197; Keil vs. Healey, 84 111., 104. (10) Harrer vs. Wallner, supra. 266 RIGHTS AND LIABILITIES OF THE WARD. [CH. V. lite, a married woman is authorized to convey her land at the age of eighteen years, and if she executes a conveyance before she attains that age, although her husband join her therein, the deed will be void.(^) But the minority of females ceases at eighteen years, and if she wishes to avoid the eifect of the statute of limitations, she must commence her suit within three years after she attains eighteen years jj^'^) since the passage of the married woman's statute Act of 1861 , the statute of limitatious ruus against a married woman the same as against a, feme soI(\[^) All gifts, grants or deeds, made by infants by matter in deed, or a writing, which takes eftect by delivery of his hand, are voidable by himself, his heirs, or those who have his estates ;*) and the lieirs of an infant may disaffirm his deed within the same time that the infant might himself, if living. \^'^j The deed of an infant may bo ratified by acts in pals, or by long acquiescence. Possession by the first grantee froui the infant would be notice, not only of the original deed, but of any acts of ratification.(^) An infant cannot bind himself by bond ;('^) and where a plaintiff relies upon a new promise made after the defendant became of age, the original contract having been made during infancy, he should declare on the new contract.(^^) The implied contracts of an infant for necessaries are binding upon him.(^) An infant of any age is capable of being a grantee in a convey- ance of land, and a delivery of a deed conveying land to an infant, or one incapable of formally accepting the same, may be shown by facts and circumstances indicating an intention on the part of the grantor to part absolutely with his title and vest it in the grantee, an acceptance will be presumed in such a case from the beneficial nature of the transaction. ('") (i) Lane vs. Soulard, 15 111., 123; Rodgers vs. Higgins, 48 III., 211; Hoyt vs. Swar, 53 111., 134; Harrer vs. Wallner, 80 111., 197. (2) Kilgour vs. Gockley, 83 111., 109; Keil vs. Healey, 84 111., 104. (3) Castner vs. Walrod, 83 111., 171. (4) Tyler on Infancy, 69 ; Tunison vs. Chamblin, 88 111., 378. (5) The Illinois Land and Loan Co. vs. Bonner, 75 111., 315. (6) Black vs. Hills, 36 111., 376; Ewell's Leading Cases on Infancy, 138; Tunison vs. • Chamblin, j-w/T^; The Illinois Land and Loan Co. vs. l\un- (7) Bliss vs. Berryman, i .Scam., 4S4. [ner, supra. (8) 3. (9) Cole vs. Pennoyer, 14 111., 158. (10) ]\Iasterson vs. Cheek, 23 ill., 72. CH. V ] nroriTS and LrABILITIES OF THE WARD. 267 A release by a minor of his full share in the estate of his fiither is void, nor will it avail anyiliinii; tliat such release was exeeufed by a married w<):naii, jointly with her husband, as the husband has no authority to make au agreement of that eharaeter which will bind liis wife.(') Under the uniform practice in chancery in this state, a decree against an infant is, in the first instance, absolute, a:i 1 no day is given to show cause after he becomes of age.(^) The grantees of minor heirs are protected by their disability. Such grantee in asserting his title as against a person defending under the statute of limitations, may show the disability of his grant- ors at any time within the statutory period, and thus prevent a bar. The statute of limitations does not begin to run until after the disa- bility is removed, and the statutory period must elapse after the disability ceases, before there can be a bar under the statute, and the right of the grantee in this regard is the same as that of the heir.(^) 3. Actions by and against ward. — Au infant can only appear to defend a suit by guardian, and not in person or by attor- ney. ("*) He can sue in court only by his guardian or jprochein aml.i^) An order of court appointing the next friend of an infant plaintiff, is unnecessary. (^) He may prosecute a writ of error in the su- preme court by his next friend. If, however, he prosecute in his own name, and there be a joinder in error, his disability is waived by that proceeding. (^) A next friend can only pursue the rights of a minor, and h is no power to yield or cede them to others. (^) The same is true of au attorney, and where a suit is dismissed on the agreement of the attorneys, the infant's rights will not be affected, nor will he be estopped from instituting a suit on the same cause of action.(^^) A minor may maintain an action of trover by his next friend, but he is not entitled to receive the money recovered. It will "be (i) Bishop vs. Davenport, 58 111., 105. (2) Kuchenbeiser vs. Beckert, 41 111., 172; Barnes vs. Hazelton, 50 III., 429; Wadhams vs. Gay, 73 111., 415. (3) Hills vs. Buntin, 47 III., 396. (4) Peak vs. Shasted, 21 111., 137; Kesler vs. Penninyer, 59 111., 134. (5) Hoare vs. Harris, 11 111., 24. (6) French vs. Creath, Breese 12. (7) McClay vs. Norris, 4 Gilm., 370. (8) Cliicai^^o, Rock Island and Pacific R. R. Co. vs. Kennedy, 70 111., 350. (9) Benton vs. Pope, 5'Huinp., LTenn.j 392. 268 RIGHTS AND LIABILITIES OF THE WARD. [CH. V. ordered to be paid into court, subject to tlie demand of a legally constituted guardian.' ') In the absence of any positive provision of the law to the con- trary, an infant will not be prejudiced or injured by lapse of time, when by reason of his tender years the party is disqualified to pros- ecute his suit in person ;(^) and a delay of four years after minors have become of age, is not such laches in asserting their rights in bringing a suit and obtaining relief from a fraudulent sale of their real estate where they were ignorant of their rights, and had been wronged by their guardian, and where no rights have been acquired by other persons in the property or material change in the property occurs .after they arrived of age and before suit was brought.(^) Where infant heirs are brought into court by sci7'e facias under the statute, to show cause Avhy they should not be made parties to a judgment, it will be necessary to prove up the ca.se de novo against them.(*) An infant under the age of ten years may maintain an action by her next friend, for slanderous words, charging her with theft.(^) The plea of infancy is not a dilatory plea, but goes to the foun- dation of the actioUjC^) and the right to avail of such a plea is per- sonal to the party claiming such disability. (^) An action will not lie against a guardian upon the contract of his ward, but must be brougiit against the ward, who may defend by his guardian.(^) So, too, an action for an assault and battery committed upon an infant, must be brought in the name of the infant, by his guardian, and not in the name of his guardian.(^) It will be presumed that the minor was eraanci})ated, by his father, where he worked, and after becoming of age, brought suit to recover for his labor, and the father, who \v'as called as a witness, spoke of the transaction as his son's, and a recovery by the son will be a bar to a recovery by the father.(^'°) (i) Benton vs. Pope, 5 Hump., (Tenn.) 392. (2) Rector vs. Rector, 3 Gilm., 105. (3) Chicago, Rock Island and I'acific R. R. Co. vs. Kennedy, 70 111., 350. (4) Cox vs. Reed, 27 111., 434. (5) Stewart vs. Howe, 17 111., 71. (6) Greer vs. Wheeler, i Scam., 554. (7) Huls vs. Buntin, 47 111., 396. (8) Brown vs. Chase, 4 Mass., 436. {9) Stewart vs. Crabbin, 6 Munf., (Va.) 280. (10) Scutt vs. White, 71 HI., 287. CM. V ] RIGHTS AND LIABILITrES OF THE WARD " 269 A ward will have a right of action against third persons dealing with the guardian, where the guardian has no right to assign an obligation to a third person, for liis own private benefit, in which his wards, who are minors, are interested. And where the assignee knew this when taking the obligation, a court of equity will pursue the property into the hands of the assignee, or prevent the payment of the obligation to him.(^) An infant daughter can not consent to carnal intercourse, so as to bar an action by her father for seduction, because she is incapa- ble of consenting. For the same reason, without regard to the criminal law, she is incapable of consenting to an abortion. (^) So, too, an action on the case will lie to recover damages by a guardian for the seduction of his ward.(^) 4. Ward agaixst guardian. — No action is maintainable by a ward against his guardian alone, for the use, income, or profits of the property, which went into the guardian's hands by virtue of his appointment, until there has been a settlement of accounts, and a balance has been struck.(*) The remedy of a ward against his guardian, is by action of account or bill in equity, in which the equity between the parties may be adjusted and rightfully settled. An action of assumpsit is not maintainable.^^) The above has no allusion to an action of debt upon the guard- ian's bond, which may be maintained whenever his guardianship ceases, whether an account has been rendered or not.(^) 5. Homestead rights of the infant. — During the life of the parents, the children have no vested interest in the homestead, and the parents may release the right, or put an end to it by aban- donment, and their children can assert no right therein adversely to the acts of their parents ; and whatever concjludes the parents from asserting the right, and thereby deprives them of it, will, in like manner, affect their children w^ho succeed them.(") But where (i) Carpenter vs. Mc Bride, 3 Fla., 292; Lockhart vs. Phillips, i Ired., (N. C.) Eq., 342. (2) White vs. Murtland, 71 111., 250. (3) Fernsler vs. Moyer, 3 Watts & S., (Pa.) 416. (4) Chapman vs. Chapman, 32 Ala., 106; Robertson vs. Robertson, i Root, (Conn.) 51 ; Nutz vs. Rutter, i Watts, (Pa.j 229. (5) Linton vs. W'aiker, 8 Fla., 144 (6) Wann vs. People, 57 111., 202. (7) Clubb vs. Wise, 64 111., 157. 17 270 RIGHTS AND LIABILITIES OF THE WARD. [CH. V. the homestead has descended to the infants, who are removed there- from only to place them in charge of their near kindred, and the farm is rented by their gnardian for their benefit, it is no abandon- ment. It is the only occupancy which the circumstances of the case and their interests will admit of. A sale by an execution creditor, of a homestead occupied by a tenant for the benefit of the widow and minor heirs, will be set aside on application by the latter, in a court of equity. (^) The abandonment of the homestead by the widowed mother, will not prejudice the rights of the infants.(^) 6. Settlements between guardian and ward. — Courts look upon settlements, made by guardians with wards recently come of age, with distrust, and will not consider them binding, unless made with the fullest deliberation and the most abundant good faith on the part of the guardian ;(^) and where a receipt is given by the ward, soon after coming of age, to his former guardian, without a full knowledge of the facts, he is not concluded. (*) But, in the absence of any undue means used on the part of the guardian to obtain it, and with a full knowledge of the facts, a release by the ward after becoming of age, is bindi ng,'^^) It is no bar, however, to a bill, filed by the wards, for an account, on the ground of a mis- take, which the guardian admits.(^) Advances made by a guardian to his ward, cannot be regarded as a charge upon the ward's land, until an account is presented to the c(junty court and a})proved.(''j After the lapse of many years from the final settlement of a guardian with his wards, after their majority, satisfactory evidence will be required to show th it he holds funds in his hands not accounted for in his settlemcnt.(^) 7. Estoppel. — Minor heirs, being ignorant of the proceedings (i) Brinkerhoff vs. Everett, 38 111., 263. (2) Walters vs. People Ex. Rel. Bradley, 21 111., 178. (3) Sullivan vs. Biackvveil, 28 Miss., 737; Andrews vs. Jones, 10 Ala., 400; Wriglit vs. Arnold, 14 B. Mon., (Ky.t 63S; McClennan vs. Kenedy, 8 Md., 230; Meek vs. Perry, 36 Miss., 190; Williams vs. Powell, i Ired. (N. C.) Eq., 460; Boyett vs. Hurst, i Jones (N. C.j Eq., 166; Hawkins' Appeal, 32 Pa. St., 263; VVickiser vs. Cojk, 85 111., 68. (4) Brewer vs. Vanarsdale, 6 Dana, (Ky.)2o4; Hall vs. Cone, 5 Day, (Conn.) 543; Fish vs. Miller, i Hoffm., (N. Y.) 267. (5) Kirby vs. Turner, Hopk.,(N. Y.) 309; Kirby vs. Taylor, 6 Johns. Ch., (N. Y.) 242 ; Padfield vs. Pierce, 72 III., 500. (6) F"elton vs. Long, 8 Ired. (N. C.) Eq., 224. (7) Wickiser vs. Cook, supra. (8) Railsback vs. Williamson. 88 111., 4q-i. CH. v.] RIGHTS AND LIABILITIES OF THE WARD. 271 of the administrator at the time, and never having had any settle- ment with tlieir guardian, would not be estopped from asserting their title by the mere fact that a portion of the consideration received by the guardian from the administrator on the sale, had been applied to their benefit.(') Nor will the mere silence, or ex- press assent of an infant to a conveyance of her lands by an admin- istrator, nor standing by in silence, while the purchaser is making improvements on the land, estop an infant from asserting title, any more than they could by their own deed. made during infancy.(^) And where an administrator's sale and deed were adjudged to be void, and the legal title adjudged to be in the minor, a bill in equity can not be filed to restrain the minor from setting up his legal title on the ground that by the acts of the minor, while a minor, and after arriving of age, he was estopped in equity from asserting the same.(') Estoppel in pais does not result from statements which do no injury.!*) Where land was regularly sold by the guardian under an author- ity of law, although the sale was not conlirmcd, but no complaint appears against the fairness of the transaction, the monies being faithfully applied, part in the acquisition of other lands, which were subsequently conveyed, the minors will be estopped in equity, after long acquiesence, from proceeding in ejectment, to recover the land sold by the guardian, from an innocent purchaser, not imme- diately connected with the sale.(^) An infant will not be estopped from asserting his title and claim to real estate, in the estate of his father, because the father in his lifetime, requested certain of his children should have real estate belonging to him, an■ (5j I'eiin vs. Heiscy, 19 II!., 295. 272 RIGHTS AND LIABrLITIES OF THE WARD. [CH. V. intended to be in lieu of his interest in his father's lands.(') Fraud is necessary to an equitable estoppel ;(^) and the utmost t.hat can be said in this case, is, that the infant disregarded the wishes of his father, and received more money from the estate, than he wa.s entitled to have. This falls far short of an equitable estop- pel to title to realty. (^) 8. Election by ward. — When the guardian has made profits by the employment of the funds of the ward, the latter may elect to t;ike the profits or charge him with interest, but is not entitled to both.(*) And where a guardian invests the personal property of his ward in real estate, without authority, the ward may elect whether to receive the real estate, or to receive the money and interest ;(^ and if he elects to take the land, within a reasonable time after becoming of age, a court of equity will enforce a conveyance of the legal title to him.(^) The purchase by a guardian of his ward's property, on a sale by Uim, is voidable at the option of the ward.C) An award on a submission by the guardian of an infant, is void- able by the infant on his coming of age.(^) Where money was directed to be paid into court, under a decree, for an infant, and her guardian accepted a deed of land in lieu thereof, it was not binding on the infant. The guardian had no right to receive the money, much less the land in lieu of it.(^) Where a ward seeks to avoid a conveyance made by him to his n-nardian after his majority, on the ground of imposition and mis- representation of the facte, he will be required to return the whole of the purchase money paid to him, or the land should be ordered to be sold to repay the same, as a condition upon which the sale should be set aside.(''') (i) Dorlarque vs. Cress, 71 111., 3S0. (2) Davidson vs. Young, 38 lil., 145; Bigelow on Estoppel, 4S4. {3) Dorlarque vs. Cress, supra. (4) Bond vs. Lockwood, 33 111., 212; /// Re Steel, 65 111., 322; Kyle vs Barnett, 17 Ala., 306. (5) Eckford vs. Dekay, S Paige, ( N. Y.) 89; CapHiiger vs. Stokes, Meigs, vTenn.) 175; Padtleld vs. Pierce, 72 111., 500. (6) Padfield vs. Pierce, supra. (7) Scott vs. Freeland, 15 Mi-^s., 7 Smed. & M., 409. (8) Barnaby vs. Barnaby, i I'ick., 'Mass.) 221. (9) Westbrook vs. Comstock, Walker's Cli., iMich.l 314: Lixingston vs. )ones, Harr. Ch., (Mich.) 165; Bund vs. Lockvvuod, jriv/-/'/ (10^ VVickiser vs. Couk. S5 Ilk. f*^ CH. V ] RIGHTS AND LIABILITIES OF THE WARD. 273 9. Right to contract marriage. — Male persons over the age of seveiito'Mi years, and females over the age of fourteen years, may contract and be joined in marriage. (') For tiie purpose of ascertaining the ages of tlie parties, the county clerk may examine either of them, or any other witness, under oatli.(^) And if any county clerk shall issue a license for the marriage of a man under the age of twenty-on(i years, or of a woman under the age of eighteen years, without the consent of his or her father, (or if he is dead or incapable, or not residing with his family, or his or her mother or guardian, if he or she have one,) first had thereto, lie shall forfeit and pay the sum of $300 for each offense, to be recov- ered by such father, mother or guardian, in an action of debt, in any court of competent jurisdiction. (^) The statute authorizing the clerk to ascertain tlie age of those seeking a marriage license, contemplates a personal examination on oath of the parties proposed to be married, or other witnesses.(*) The provisions of our statute, requiring the consent of parents or guardians to be had, when parties intending to marry, are in their minority, is founded injustice and in consideration of })ublic policy. In such cases, they are in a state of servitude to their parents, from which they can not be released, except by the consent of tlie pa rents. (^) 10. Debts of the ancestor. — Infants are liable for tlie debts of their ancestors, but only to the extent of what descends to them from such ancestor, and where heirs at law are sued for a debt of their ancestor, who have not sold or aliened any part of the land cast upon them by descent, or received any rents and profits there- from, or anything from the personal estiite, it is erroneous to render a personal judgment against them. No other judgment can be rendered in such a case, than one to be satisfied out of the real estate wliich descends to thcni.(*j When any huuls, tenements or hereditaments, or any rents or profits out of the same, shall de.~c(Mid to any lusir, or be devised to any devisee, and the })crsonal estate of the ancestor of such heir or (1) Kurd's R. S., Chap. 89, ? -,. (2) Hurd's R. S., Chap. 89, 'f. 8. (3) Hurd's R. S., Chaj). 89, I 14. (4) Gilbert vs. Bone, 64 111., 518; Gilbert vs. Bone, 79 111., 341. (5 Lyndon vs. Lyndon, 69 111., 43. '6) I'.ianirer vs. Lucy. 82 111., 91 ; Bonnell vs. Holt, 89 111., 71. 274 RIGHTS AND LIABILITIES OF THE WARD. [CH. V devisor of sncli devisee, shall be insufficient to discharge the just demands against such ancestor, or devisor's estate, such heir or devisee shall be liable to the creditor of their ancestor or devisor to the full amount of the lands, tenements or hereditaments, or rents and ]M'()(its out of the same, as may descend or be devised to the said heir or devisee; and in all cases where any heir or devisee shall be liable to pay the debts of his executor or devisor, in regard of any lands, teni;mjnts or hereditaments, or rent or profit arising out of the same, des(;ending or being devised to him, and shall sell, alien or make over the same before any action brought, or pro- cess sued out against him, such heir at law or devisee, shall be answerable for such debts to the value of the said lands, tenements and hereditaments, rents or profits so by him aliened or made over; and executions may be taken out upon any judgment so obtained ao-ainst such heir or devisee, to the value of said lands, tenements and hereditaments, rents and j)rofits, out of the same, as if the same were his own [)roper debts, saving and excepting that the lands and tenements, rents and profits, by him bona fide aliened, before the action brought, shall not be liable to such execution. (^) When any action or suit is brought against any heir or devisee, he may plead rlens per descent, at the time of the commencement of the action or suit, and the plaintiff, in such action, may reply that he had lands, tenements or hereditaments, or rents or profits out of the same, from his ancestor or devisor before the commencement of the action or suit, and if, upon issue joined thereupon, it be found for the ])laintirF, the jtuy shall inquire of the value of the lands, tene- ments, hereditaments, or rents and profits out of the same, so descended or devised, and thereupon judgment shall be given against such heir or devisee, by confessing of the action without confessing the assets descended or devised, or upon demurrer, or nil dlclt, or default, said judgment shall be given for the plaintiff, without any writ to inquire of the lands, tenements or hereditaments, or rents and profits out of the same, so descended or devised. (^) In all cases, where a judgment has been obtained against the executor or administrator of a deceased person, on a ccmtract or undertaking on which a yAni action might have been maintained against the executor or administrator, and the heir or devisee of the (i) Ilurd's R. S., Cliap. 59, § 12. (2) Hurd's R. S. Chap. 59, \ 13. CH. v.] RIGHTS AND LIABILITIES OF THE WARD. 275 deceased person, if it sliall appear by a judgment of record, or the return of a proper officer, that there is not property of the deceased person in the liands of the executor or administrator to satisfy sucli judgment, it shall be lawful to bring a separate suit or action against the heir or devisee on such contract or undertaking; and the judg- ment against the executor or administrator, if not satisfied, shall be no bar to the suit or action against the heir or devisee. (^) If no person shall administer on the goods and chattels of a deceased person for the space of one year after his death, a separate suit or action may be maintained against the heirs or devisees, on all the contracts and undertakings of such deceased person.(^) In all actions or suits commenced under the provisions of the preceding sections, the facts authorizing the suit to be brought sepa- rately against the heirs or devisees, shall be distinctly set forth in the declaration.(^) When any suit or action in law or equity shall be brought against any heir or devisee, who shall be of nonage, it shall be lawful for the court to api)oint a guardian ad litem for such infant heir or devisee, and may compel the person so ap{)ointed, to act: Provided, that by such appointment such person shall not be rendered liable to pay any costs of suit.(*) And where a creditor's bill is filed to subject land conveyed by a deceased person to his son, the judgment of the county court allowing the claim in probate, is only prima facie evidence, and is not conclusive on the heir. He has the right to contest the indebt- edness.(^) But heirs are not liable for the debts of their ancestor where the latter leaves personal estate sufficient to discharge all jast demands against his estate.,^'') The facts authorizing such an action must be distinctly set forth in the declaration. No recovery can be had under the common counts. (') (i) Hurd's R. S., Chap. 59, ? 14. (2) Hurd's R. S., Chap. 59, ?^ 15. (3) Hurd's R. S., Chap. 59, 'i 16. (4) Hurd's R. S., Chap. 59, '''/. 17. (5) Gibson vs. Gibsou, 82 111., 61; Birely's Heirs vs. Staley, 5 Gill. & Johns., 432; See Note on p. 313, 25, Am. Decisions. (6) Ryan vs. Jones, 15 111., i; Vanmetervs. Love,33 111., 260; Rakervs. Hunt, 40 111., 264; Bishop vs. O'Conner, 69 111., 431 ; Forman vs. Stickney, 77 Ilk, 575; McLean vs. McBean, 74 Ilk, 134; Cutright vs. Stanford, 81 Ilk, 240; Branjrer vs. Lucy, 82 Ilk, 91 ; Guy, admr., vs. Gericks, 85 Ilk, 428; Laughlin vs. Heer, 89 Ilk, 119. (7) Ryan vs. Jones, it; Ilk. i; McLean vs. McBean. si/prc. 276 RIGHTS AND LIABrLITIES OF THE WARD. [CH. V. A decree against the heirs should not be several, but joint, requiring each to pay pro rata.(^) Yet, while this is true, no one of the heirs, must be made liable bayon 1 thti am )u;iU which may have come to him by descent. (^) An infant heir cannot avail himself of his disability to excuse the non assertion of his rights under an exicu'ory contract made with the ancestor, when the immediate perform.uice of his part of the contract is essential to the interest of the other p irty.(^) It devolves on those seeking to charge the luir with the ances- tor's djbt, to allege and prove, not only the djsjeat of real estate from the an(x\stor, but also, either that there was no personal estate, or that it was not suffi -hnt to pay the just debts and demands against the estate.'^*) And, after a period of seven years, a creditor of an estate will be considered as having waived his lien upon real estate descended to heirs. ^) 11. Contracts of the infant. — If an infant should contract to work for a certain specifii^d time, and work but a short time and quit, he is not bound by his contract, and can recover from Iiis employer the value of the services rendered. ^^) But the contract can not be avoided by the adult witii whom the infant deals.C) Where work is done, or materials furnished, under a contract made with a minor, for the improvement of his property, the con- tract is not binding, and no lien will exist, in favor of the contractor against the infant's pro[)C'rty, even though the infint received rents after sh(3 bi^ciine of age. ^) The law presumes that one dealing with a person under disability, ami knowing the fact, intends to incur the consequences of his acts, and equity will not relieve him a'i'ainst them, or otherwise affonl relii'f, ^) as it is the duty of thos;' who uive credit to an infant, to know his pr>_'cise situation, at their peril.('"j (i) Ciitrislit vs. Stanford, 8i 111., 240. (2) Vanmeter vs. Love, ^,21 i'l-. 260. (3) Walker vs. Dougl.iss, 70 111., 445. (4J Lausi^hlin vs. Heer, 89 111., 119. (5) McCoy vs. Morrow, 18 111., 519; Unknown Heirs of Langvvorthy vs. Baker, 23 111.. 484; Rosenthal vs. Renick, 44 III., 202; Moore vs. Ellsworth, 57 HI., 308; Reed vs. Colby, 89 III., 104. (6) Ray vs. Haines, 52 111., 4S5. (7) Fletcher vs. Holmes, 32 Ind., 537; Johnson vs. Rockwell, 29 Barb., (8) McCarty vs. Carter, 49 lll.,53. [tN.Y.)i6o; i Sneed, (Tenn.)659. (9) Rodtjers vs. Higf::ins, 48 III., 211. (loj Hunt vs. Thompson, 3 Scam., 179. CPI. v.] RIGHTS AN]) lAAf'AIATlKH OF TIIIO WARD. 277 A contract with a minor to nurse his child, is good, and can not l)e avoided by infancy ;(^) so, too, where an infant widow con- tracted for the burial of her deceased husband, she was hekl liable, it being held to be for her own personal benefit. But it does not tullow, however, from this decision, that an infant child, or more distant relation would be held responsible upon a contract for the burial of his parent or rclative.(''^) Evidence that a guardian has permitted his ward to make cer- tain contracts, do'^^'s not prove a general authority to him to contract.(^) Where a person with a knowledge of the title and condition of the property, makes improvements upon the land of a ward under a contract with the guardian, which the latter has no authority to make, he has no lien in equity upon the premises for the value of such improvements. (*) An infant who has a guardian or parent, who supplies his wants, can not bind himself for necessaries.!^^) And where the guardian refuses to supply his ward with necessaries, the remedy is by appli- cation to the court to have him discharged, or the ward may pur- chase necessaries hiuiself, for the recovery of the ])rice of which an action will lie against the minor, but not against the guardian per- sonally-C) Aiid, while the infant is lial)le for the necessaries furnished, his note given for them, is void, as an infant can not state an account.^) A contract made by an infmt to pay interest, is void.(^) And where he gives his note for necessaries, the reasonable value of the goods must bo the basis of a recovery, and not the n()te.(^) 12. Ltaiulity FOR TORTS. — Infjints are liable for torts and wrongs committed by them, the same as adults.!'") Where a minor piu'chases goods and procures the delivery by (i) Broom's Legal Maxims, ^ 533. (2) Chappie vs. Cooper, 13 M. & VV., 259 ; Broom's Legal Maxims, S7ipra. (3) Prescott vs. Cass, 9 N. H., 93. (4) Gay vs. Du llprey, 16 California, 195. (5) Guthrie vs. Muriihy, 4 Watts, (Pa.) 80. (6) Call vs. Ward, 4 Watts & S., (Pa.) 118. (7) I Parsons on Notes and Bills, 68; i Story on Contracts, ^ So; True- man vs. Hurd, 17 Rep., 40; Ingelow vs. Douglass, 2 Stark, 36. (S) Fisher vs. Mowbray, 8 East., 330. (9) Mitchell vs. Reynolds, 10 Mod., 85; Modin vs. Steward, 5 Brad- well, 533. (10) Davidson vs. Young, 38 III., 145; Wilson vs. Garrard, 59 III., 51; Wallace vs. Marss,5 Hill, (N. Y.) 391 ; Bullock vs. Babcock,3 Wend., (N. Y.) 391: Fitts vs. Hall, 9 N. H., 441. 278 RIGHTS AND LIABILITIES OF THE WARD. [cH. V. fraud, he will be lial)le as in tort. The mere fact that he made the contract, and by fraudulent means obtained possession of the prop- erty, will not shield him from liability to suit, in case or trover,(') Infants should not be made to suffer for the trespasses or unau- thorized acts of the guardian. (^) An infant under the age of ten years, shall not be found guilty of any crime or misdemeanor.(^) Every male person of the age of fourteen years and upwards, who shall have carnal knowledge of any female child, under the age of ten years, either with or without her consent, shall be adjudged lo be guilty of the crime of rape.('*) The stc.te has no power to imprison a child, who has committed no crime, c/i the mere allegation that he is destitute of proper parental (;ar-^, and is growing up in mendicancy, ignorance, idleness and vice.(^) A father is not, nor can he be held liable for the unauthorized trespass of his minor children. In that respect, the child occupies the same relation to the father as does a servant.(^) An infant who would falsely allege himself to be of age, for the purpose of inducing another person to purchase and take a deed of his lands, would be liable to respond in damages for any injury M hich might result to the purchaser in consequence of the deccit.C'j fi) Mathews v;>. Cowan, 59 111., 341. (2) Cunnin.^ham vs. 111. Central R. R. Co., 77 !!! oS. (3) Kurd's R. S., Chap. 38, i> 283. (4) Kurd's R. S., Chap. 38, g 237. (5) People vs. Turner 55 111., 280. (6) Paulin vs. Kc wse- 63 111., 312. f7) Davidson vs. Y -k^, 38 'II., 14-. CII. v.] RIGHTS AND LIABILITIES OF THE WARD, 279 ADDITIONAL NOTE8 1. Estoppel, as applied to infants. 2. Laches — When imputed to an infant. 3. Infants are wards of the court. 4. An infant is bound by the action of his guardian — When. 5. Infancy, as a defense against a judgment rendered without a guardian ad litem having been appointed. 6. Ra ilicatiun by the ward. 7. Guardian has no power to compromise claims of ward for less sum than is due, without an order of the court. 8. Contracts — Personal liability of guardian upon contracts relating to his ward's estate. 9. A receipt obtained by fraud and circumvention does not bind the ward. 10. Decree against infants — Impeachment thereof 11. Guardian sh juld not act for the ward, if himself interested. 1 2. It is error to issue a decree by consent against an infant without hearing evidence. 13. A guardian or next friend cannot stipulate ward's rights away. 14. At orney's fees. 1. Estoppel, as applied to infants. — A defendant is not C'.-t()j)j^c'(i from setting up infancy as a defense to a contract by his fraudulent representations that he was of full agc.(') 2. Laches — when imputed to an infant. — Laches will not be imputed to an infant during the period of the disability ; only from the i)eriod of the removal of the disability. (^) 3. Infants are wards of the court. — A minor is entitled to the protection of the courts, whether his guardian pleads proj)erly or not.(^) If the general guardian or the guardian ad litem fails to properly protect the interests of the ward, it is the duty of the court, of its own motion, to compel him to do so, whenever that fact comes to the knowledge of the court.(*) 4. An infant is bound by the action of his guardian — WHEN. — On a bill for an accounting tiled by a guardian, in respect (i) Merriam vs. Cunningham, 11 Cushing, 40; VVieland vs. Kobick, no 111., 16. (2) Walker vs. Ray, in 111., 315. (3) Giimore vs. Gilmore, 109 111., 277. (4) Lloyd vs. Kirkwood, 112 111., 329. 280 RIGHTS AND LIABILITIES OF THE WARD. [CH, V. to the income of real j)ro|)crty charges and disbursements, where ou tlu; hearing the minor was represented by the guardian and his solicitor, the minor was held bound by their action in making up the issues on the accounts. (') 5. Infancy, as a defk.nse against a judgment iiENDEuijiD, ETC. — Ajudgnient rendered Ity a justice of the peace against a minor without the appointment of a guardian ad Litem is not void, but vt>id- able, in a case where the court has jurisdiction of the person and the subject matter. A plea to an acition of debt on such a judgment, setting up the fact of infancy, that the judgment was not rendered for any tort, or for necessaries furnished to defeudaut, and that no guardian ad litem was appointed, is bad on demurrer.^^'*) 6. Ratification by the ward. — The fact thc.t a ward, after reaching majority, lived with her father, in a house mortgaged by him to secure a loan from lier guardian, is not sullicient to show' that she ratified or approved of the act of the guardian in making such loan to her father, (^j An objection to the com])etency of a party to testify in his own behalf is not waived by an infant party by falling i, object tkt the proper time.(*) On a bill in chancery, filed by a stepfather against liis stepchildrcu to subject their lands to sale, the service of the sum. nous by delivery of a copy thereof to the complainaiit, informing h.m uf its conteuts, will confer no jurisdiction on the court as to the [)ersons of the defendants, and a decree of sale on such service will be void as to them (^) If an infant advances money on a voidable contract, which he afterwanl rescinds, he cannot recover this money back, because it is lost to him by his own act, and the privilege of infancy ducS not extend so far as to restore this money, unless it was oLttalngd l>y fruud.^^j 7. Guardian has no i\jWt.R lo comi'.iomise claims or waud, ETC. — A guardian has no pouer to eo.x.^/>jaad or compiomipp; ip (i) Patterson vs. Jolinson, 113 111., 559. (2) Millard vs. Marmon, 116 111., 649. (3) Winslow vs. The People, for usr, etc., 117 111., 152. (4) Barnard vs. Barnard, 119 111., 92. (5) Hemmer vs. Wolfer, 124 111., 435. (6) Chicago Mut. Life Indemnity Ass'n vs. Hunt, 127 II!., 257. ril. V "1 RIGHTS AM) LlAniLITIFR OF THE WAIiD. 281 respect to his ward's rights, where a less sum than is due is accepted, except under an order and direction of the county court, and if lie does his act will not hind his w;ir(l,an(l his ward may disaffirm it.(') 8. Contracts — personal eiap.ility of guardian, etc. — Where a guardian, under the a|»|>r(>val of the probate court, leases his ward's property, covenauting in the lease to purchase, at the expiration of the term, the improvements put upon the premises by the tenant, at the valuation of three persons, to be selected as pro- vided in the lease, and the lease is signed by the guardian as such, as such he will be personally liable for a breach of the covenant. In such a case, however, where the guardian discharges the debt of the ward, he may have indemnity out of the ward's estate. If he has been discharged from the guardianship, he may recover off the ward in an action, as for money i)aid for his use.(*) 9. A receipt obtained by fraud, etc., does not bind the WARD. — To bind the ward in a ti-ansaction with the guardian, it must be shown that he acted, after the termination of his disability, with deliberation, and with a full knowledge of all material facts, A receipt obtained by fraud and circumvention will not bind the \vard.(^j 10. Decree against infants — impeachment thereof. — A decree against an infant is absolute in the first instance, but m ly lie attacked and impeached, either for fraud or for error of law apparent upon the face of the record, by original bill filed for the purpose at any time before the infant attains majority, or within a period after majority allow( d by law for the prosecution of a writ of error for the reversal of such decree. (*) 11. A GUARDIAN should NOT ACT FOR THE WARD IF HIMSELF interested. — A guardian whose interests are hostile to the ward's is incompetent to act for the ward in respect to that interest. In such a case the ward should be made a defendant, and have a guardian ad litem appointed, or sue by a next fi-iend, and be repre- sented by separate and distinct counsel from that of his guardian. (*) (i) Hayes vs. Mass. Mut. Life Tns. Co., 125 111., 626. (2) Nichols vs. Sargent, 125 111 , 309; Kingsbury vs. Powers, 131 111., 182. (3) Giliett vs. Wiley, 126 111., 310. (4) Haines vs. Hewitt, 129 111., 347; Coffin vs Argo, 134 111., 276. (5) Roocllioiise vs. Koodhouse, 132 111., 360; 6 Loldw., 619; Parker vs. Lincoln, 12 Mass., 16; Wells vs. Smith, 44 Miss., 296. 282 RIGHTS AND LIABILITIES OF THE WARD. [CH. V. 12. Error to issue decree by consent, etc. — It is error to enter a decree by consent against an infant witliont hearing evi- dence. (') 13. Guahdian, etc., canxot .stipulate ward's rights AWAY. — Nor can a gnardinn or next friend stipnlate the rights of his ward a\vay.(^) 14. Attorney's fees. — The estate of the wnrd slioiild not be charged for legal services rendered by guardian in a controversy arising through the guardian's fanlt.(^) (i) Bennett vs. Bradford, 132 111., 269. (2) Kingsbury vs. Buckner, 134 U. .S., 650. (3) Steyer vs. Morris, 39 III. Ap., 382. CU. Vr.] ACCOUNTING BY GUARDIAN. 283 CHAPTER VI. ACCOUNTING BY GUARDIAN. 1. Duty to render account. 2. Sureties of guardian. 3. Powers of the county court in regard to. 4. Allowances on accounting. 5. Commissions. 6. Opening and reviewing settlements. 7. Form of a guardian's settlement. 1. Duty TO render an account. — To the end that the estates of infants which come to the hands of their gnardians, may at all times be under the care and scrutiny of a court of competent jurisdiction, it has long been required of guardians, that they render to the court appointing them, accounts of the estate in their hands. And so, even a mere stranger or wrongdoer, who takes possession of the property of an infant, and receives the rents and profits thereof, may, in equity, be considered as the guardian of the infant, and may be compelled to account as such.(^) To secure such accounts at proper intervals, our statute has provided that the guardian shall, at the expiration of a year from his appointment, settle his accounts as guardian with the county court, and at least once every three years thereafter, and as much oftener as the court may require.(^) At the expiration of his trust, he shall pny and deliver to those entitled thereto, all the money, estate and title papers in his hands as guardian, or with which he is chargeable as such,(^) On every accounting and final settlement of a guardian, he shall exhibit and file his account as such guardian, setting forth specific- ally, in separate items, on what account exi)enditures were made by him, and all sums received and paid out since his last account- ing, and on what account each was received and paid out, and show- ing the true balance of money on hand, which account shall be (i) Van Epps vs. Douser, 4 Paige, 71 ; Davis vs. Harkness, i Gilm., 173 (2) Kurd's R. S., Cliap. 64, i! 14. (t,) Hurd's R. S., Chap. 64, ^ 15. 284 ACCOUNTING BY GUARDIAN. [cH. VI. accompanied by proper vouchers, and signed by him and verified by his affidavit.(') A guardian's report to the county court, being simply an account of recei]>ts and disbursements, which does not purport to be final, makes no reference to the ward's age, and asks for no discharge nor claims any commissions, with the order of court approving tlie same, can not be regarded as a final settlement. Any mistake or omission made in a former report, may be rectified on final settlement.(^j 2. Sureties (3F guardian. — It shall be the duty of the county court, at each accounting of the guardian, to inquire into the suffi- ciency of his sureties. And if, at any time, it has cause to believe that the sureties of a guardian are insufficient or in failing circum- stances, it shall, after summoning the guardian, if he be not before the court, require him to give additional security.(^) Guardians on final settlement, shall be allowed such fees and compensation for their services as shall seem reasonable and just to the court.(*) 3. Powers of the county court. — The county court has power to compel guardians to render an account of their guardian- ship from time to time.(^) The power is co-extensive with that of a court of chancery. In this state the county courts have an equit- able jurisdiction, both in the allowance of claims, and in the adjust- ment of the accounts of guardians, and in such cases may adopt tlie forms of procedure in equity.(^) Our statute has given a summary power to tlie county court to oblige guardians to render an account upon oath, touching their guardianship, instead of compelling a resort to a court of equity, as at common law.(''') And a citation to a guardian to account, is not a suit at law, but the exercise of a summary power, in the nature of a bill in equity, to compel a discovery against the guardian, and (i) Hurd's R. S., Chap. 64, g 16. (2) Bennett vs. Hanifin, 87 111., 32. (3) Hurd's R. S., Chap. 64, ? 35. (4) Hurd's R. S., Chap. 64, ^ 42. (5) IJond vs. Lockvvood, 33 111., 212. (6) Dixon vs. Buell, 21 111., 203; In 7?^ Steel, 65 111., 322; Bennett vs. Hanifin, supra. (y) In Re Steel, siipi-a. PH. VI ] ACCOUNTING BY GUARDIAN. 2H5 the statute of limitations can not be pleaded in bar.(') He should account annually to the court, unless his settlements are postponed for a longer period, and a failure to render liis accounts, indicates negligence or fraud. (^) In settling the aceouars of a guardian, the court should charge him with interest on all money of the ward iu his hands, from the time of its receipt, and allow him interest on all disbursements from the time they were made, the interest due froai the guardian to extinguish pro toiito or iu full, as the case may be, the expenditure of the ward.(^) Transactions between a guardian and ward during his minority, are alone the subject of settlement in a guardianship aceount.(^) If lie should settle after the ward's majority, it is no objection, provided it embraces only what accrued during minority. (^) The statute con- fers exjiress power on (iounty courts to compel guardians to render their accounts upon oath and to require additional security when necessary, and in default thereof, it may remove theni,(^^) When a citation has been issued and served, and a return made thereto by the filing of a guardian's account, the correctness of which is assailed by the ward, the guardian should be allowed the privilege of defense, and to submit all legitimate proof, to establish his accouut.'^''^) And for this purpose, he may introduce parol proof to explain a mistake apparent upon the face of his re])ort. He is also competent to testify to any facts occurring after the death of the father of his ward, and therefore competent to explain himself such an error or mistake. (^) In stating the account of a deceased guardian, for the purpose of establishing a claim against his estate, the rule is to allow com- j)ound interest on the sum which came into his hands, up to the time of his death, and simple interest from that time until the allowance of the claim. (^^) The creditors of the estate will be allowed (i) Gilbert vs. Guptill, 34 111., 112; /;/ i'?,? Steel, 65 III., 322; Bruce vs. Doolittle, 81 111., 103. (2) Hutchinson vs. Mudd, 6 J. J. Rlaish, (Ky.) 5S0. (3) Bryant vs. Craij^, 12 Ala., 354; Bennett vs. lianilin, S7 111., 32. (4) Crovvells Appeal, 2 Watts, (Pa.) 295. (5) VVoudberry vs. Haniniund, 54 Rle., 332. (6) Bruce vs. Doolittle, supra. (7) Iti Re Steel, ziipra. (S) P>ruce vs. Doolittle, supra; Bennett vs. Hanifm, supra, (9) Alsop vs. Barbee, 14 B. Mon., (Ky.j 525. 18 286 ACCOUNTING BY GUARDIAN. [CH. VI. to appear and object to tlio amount to be allowed the ward.(') In statiiif]^ a guardian's account on final settlement, the court should, at the end of each year, add interest to the principal, and thus compound the interest annually until the final order.(^) An infant after his guardian's death, has a right to compil a settlement of his account, as if he were of age, the guardian's trust being per- sonal, and terminating at his death ;^^) but after the death of a guardian, before settlement of his accounts, no citation, under the statute, lies against his administrator to compel him to settle the guardian's account. (*). And a proceeding in county court against the guardian, to compel him to account, not being a suit either at law or in equity, abates on the death of the guardian, even lifter appeal to the circuit court.(^) Where the same person is administrator and guardian, if he charges himself as guardian with his ward's share of the estate, he is no longer liable to account to him as adminIstrator.(^^) 4. Allowances on accounting. — He is entitled to be allowed for money furnished his ward for the purpose of completing his medical educati()n.(") He is allowed to surrender in his account, evidence of a solvent loau.(^) He is not bound to go beyond the linuts of the sUite, in the execution of tin -rust, and ui)on doing so, is entitled to extra compensation. (^) Where a testator appointed a person permanently residing in another state, guardian for his children, it will be inferred that he expected the guaixlian would remove the children to that state. And the expense of removing the children will be a ^troper charge against the estate.("') A guardian Avho is a merchant, may supply his ward necessaries out of his own store, and charge his ward a reasonable profit (i) Scheel vs. Eidman, 68 II!., 193. (2) In Re Steel, 65 111., 322. (3) Peck vs. Bonman, 2 Hlackf., (Ind.) 141 ; Gregg vs. Gregg, 15 N. H., 190. (4) Harvey vs. Harvey, 87 111., 54. (5) lb. (6) Crenshaw vs. Crenshaw, 4 Rich. (S. C.) Eq., 14. {7) Shultz's Appeal, 30 Pa. St., 397. (8) Higgins vs. McClure, 7 15iisli., (Ky.) 379. {9) Huson vs. Wallace, i Rich. (S. C.) Eq., i. (10) Cummins vs. Cummins, 29 111., 452. €H. VI.] ACCOUNTING BY GUARDIAN. 287 tliereon.(') He may also claim the allowance of a reasonable fee ]):\id in the protection of their interest, as well as the expenses of a ])roper defense. (^) He will be allowed for an adverse claim brought in, the purchase being made in good faith, though the claim was in fact worthless.(^) If he advance his own money, in payment of debts or expenses of his ward, he is entitled to interest on the same.('') AVhere the children are in good circumstances, and their father, who is their guardian, is poor and unable to support them, he will be allowed to charge their estates with the expense of their maintenance. (^j Claims against a ward need not be verified by the probate judge, before they are paid by the guardian. (") A fruardian, not bein"; the father, should be allowed a reasonable credit for boarding furnished his \vard.{^''^j He should be allowed for necessary, proper, and economical disbursements, made for his ward's benefit, without the previous direction of the court.(^) But he will not be permitted to break in on the funds of his ward, with- out showing a necessity therefor, upon proper proceedings, and, it is his duty to either obtain the sanction of the court, in advance, or have his actions subsequently ratified.'^^^) The allowance to guardians, and those who act as guardians, for the support, maintenance and education of infants, is limited to the amount of interest, rents, hires or other profits of the estate of the infants, unless under very special circumstances. ('") It is only in very special cases such as could not be foreseen, that the court ought, under any circumstances, to sanction an expenditure by the guard- (i) Moore vs. Shields, 69 N. C, 50. (2) McVVilliams vs. McVVilliams, 15 La. Ann., 88; McNickle vs. Henry, 4 Brews., (Pa.) 150. (3) Lee vs. Fox, 6 Dana, (Ky.) 171. (4) Hayward vs. Ellis, 13 Pick., (Mass.) 272. (5) Harring vs. Coles, 2 Bradf., (N. Y.) 349; Cunningham vs. Cunning- ham, 4 Gratt., ( Va.) 43 ; Walker vs. Crovvder, 2 Ired., (N. C.) Eq., 478. (6) Raconillat vs. Requeena, 36 Cal., 651. (7) Owen vs. Peebles, 42 Ala., 338. (8) Jarret vs. Andrews, 7 Bush., (Ky.) 311. (9) Cohen vs. Shyer, i Tenn. Ch., 192 ; Davis vs. Harkness, i Gilm., 173; Bybee vs. Tharp, 4 B. Mon., (Ky.) 313; Villard vs. Chovin, 2 Strobh., (.S. C.) Eq., 40; Gilbert vs. McEachen, 38 Miss., 469; Phillips vs. Davis, 2 Sneed, (Tenn.) 520; Brown vs. Mullins, 24 Miss., 204; Beeler vs. Dunn, 3 Head, (Tenn.) 87; Myers vs. Wade, 6 Rand., (Va.) 444. (10) Jackson vs. Jackson, i Gratt., (Va.) 143; Sneed vs. Hiely, 29 Ga., 587; Calhoun vs. Calhoun, 41 Ala., 369; Long vs. Norcum, 2 Ired., (N. C.) Eq., 354; Whitledge vs. Callis, 2 J. J. Marsh., (Ky.) 403; Hooper vs. Royster, i Mumj)., (Va.) 119; P'oreman vs. Murray, 7 Leigh, (Va.) 412, 288 ACCOUNTING BY GUARDIAN. [CH. VI. ian beyond the income of liis ward, without the previous authoriza- tion of the court.(') Wlicre lie has created an indebtedness, with- out authority of kiw, which exceeds the revenues of the minor, the creditor must show that ttie indebtedness was absolutely necessary for the su})port of the minor, ov the preservation of the property, and that the supplies furnished, inured to his benefit.(^^) Nor is he authorized by law to make advances from his own means, for the maintenance of his ward, Ijut he is bound to provide for such maintenance from the income, and if necessary the principal of the ward's personal estate, and "f these are insufficient, to obtain license of the court, and sell re } estate of the ward to provide the means required. (^) It is a general rule of the common law, that the expenses of an infant or ward, shall be kept within the income or produce of his estate, although a court of chancery or other proper court, has fre- quently, in cases of strong necessity, upon proper application, ordered a portion of the principal to be appropriated in that way. But in doing this, they have always proceeded with great caution, and have only done it in urgent cases. (^) Guardians should keep their wards employed when able to earn their own support, rather than permit them to consume, in idleness, the principal of their patrimony. (^) In determining what expenditures are necessary or proper, courts are exceedingly jealous of encroachments upon the jirincipal of the ward's estate. It has been rej)eatedly held that they will not be allowed, except for necessaries, without an order of court is procured before making the expenditure, unless the guardian can show such a state of facts as would have entitled him to the order had he apjilied for it at the proper time, and a reasonable excuse for his neglect in that regard. A guardian may support his ward without any order of court, and all payments which he can show were necessary for that purpose, will be allowed him. While in this state it has not b'ien ii.iual to pro;'ure orders of court for prospective maintenance, yet such orders have been uniformly (i) Freelick vs. Turner, 26 Miss., 393. (2) Sanford vs. Wagsjaman, 14 La. Ann., 852. (3) I'reblij vs. L()nj.;^r(jl!ow, 48 Me., 27>j. (4) I)a\ s vs. Harkness, i Gilni., 173 (5) SluLc \s. Clark, 16 Ind., 97. CH. Vr.] ACCOUNTIXG BY GUARDIAN. 289 1-equired for expenditures other than for necessarieruce vs. Doolittle, 81 111., 103. (8) Fogarty vs. Ream, 100 111., 366. (9) Corwin vs. Shoup, 76 111., 246. CH. vr.] ACCOUNTING BY GUARDIAN. 293 or appealed from, is conclusive upon the parties; it cannot be attacked collaterally, in a suit by the ward, on a guardian's bond.(^) It may be sometimes important to ascertain the liability where a person sustain the dual relation or trust of administrator and of guardian of the sole distributee — in which capacity he is liable. When the estate is substantially settled, and the person so holding such dual relation, charges himself in a private book as guardian for amount due from the estate to the heir, and pays the necessary • xpenses of the ward, and collects rents as guardian, a reasonible time having elapsed for completing the administration, he will be chargeable as guardian, and not as administrator.(*j 7. FORM OF guardian's SETTLEMENT. State of Illinois, "| County, J'^^- To the Jiidi^e of the County Coiivtof. County, Term, A. D. iS... The undersigned, guardian of , would respectrully buijniil to the court the following report of h acts and doings as such guardian from to , A. I). i8...; charge with the following, to-wit: Date. Ite>ns of Receipts. Amowit. Total AniH. Total amH of Moneys rec'd or collected, ask to be credited with the following sums, paid out per receipi^ exhibited: Date. Items Paid Out. Amount. 1 Total AmH. Total amount paid ojit, \ 1 ' II fi) Holland vs. State, 48 Ind., 391. (2) Bell vs. People, 94 III., 230; ante page 39. 294 ACCOUNTING BY GUARDIAN. [CH. VI. RECAPITULATION. Dots. Cts. Dots. Cts. Total auiount received, paid out. Balance due, The above balance consists of the following , which are herewith presented for inspection: DESCRIPTION. Kind of Instrumenl. Date. Payor. Securities. When Due. Rale oflnt AmH. All of which is respectfully submitted. State of Illinois, 1 County, J^^" , Guardian of , being duly sworn, say that the foregoing is a full and perfect account of all h dealings and transactions, and ot all moneys and effects received and paid out by h on account of the said minor , from to the. ..day of. , A. D. i8..., and of all moneys, notes, bonds, accounts and evidences of indebtedness, composing the per- sonal estate of said minor on hand the. ..day of. , A. D. i8... Subscribed and sworn to before me this. ..day of , A. D. i8... .Clerk. FORM OF guardian's FINAL RECEIPT. N. B. — This receipt, if properly executed, entitles the guardian to a discharge, should be careful not to sign it unless it is in strict accordance with the facts. State of Illinois, . County, i ' In County Court. To whom it may concern: I, , of , in the county of , and State of Illinois, do hereby certify that I attained the age of. years on the. ..day of. , A. D. iS.... I do further certify that I have made full and final settlement with , my former guardian, since I have arrived at said age. And I do hereby acknowledge the receipt of dollars and cents, in full of all demands against , as such guardian, together with all books, papers and properly in... possession belonging to me. I hereby enter my appearance in the matter of. application for dis- charge as such guardian, waiving all further notice. Witness my hand and seal this. ..day of , A. D. i8.... Attest [l. s.] CH. VI.] ACCOUNTING BY GUARDIAN. '296 ADDITIONAL NOTES. 1. Guardinn — Loans must be approved by the county court. 2. Minor repudiating a sale is required to refund what he has received. 3. Expenses incurred for litigation. 4. On appeal — What is to be contested. 5. Jurisdiction of the county court — Possesses chancery powers. 6. Form of the report — As to the mode of computation. 7. Acting witliout authority of the court. 8. Mode of accounting. 9. Unclaimed money — How claimed and obtained by persons entitled thereto. 1. Loans — court must approve. — The loans made by a guardian must be approved by the county court. The requirement of the statute that the security sliall be approved by the county court is mandatory, and not merely directory; and should the guardian fail to obtain the ap[)roval of loans by him made, the ward may treat the loan as an appnjpriation by the guardian of money to his own use.(^) 2. Minor repudiating sale must refund money. — Where a minor repudiates or disaffirms a sale by bill in equity, he will be required to refund what he has received, if it be in his power. Repudiating by action of ejectment is in effect the same as repudiating by bill in equity, and no court possessing equitable powers will permit a party to do this and at the same time receive the proceeds of a .sale not yet paid over.(^) 3. Expenses incurred for litigation. — If a guardian incur expense by reason of litigation where he believed it was reasonably necessary, and where it is beneficial to the ward's interests, he will be entitled to be reimbursed out of the ward's estate. (^) 4. On appeal — what is to be contested. — On a|)peal from the final order of the probate court, settling the final accounts of the guardian, which were contested by the ward, and such contest was (i) Mclntire vs. The People, for the use of Alice Wilkey, 103 III., 142; Hughes vs. The People, for use of Kerrick, iii 111., 457; VVmslow vs. Tlit- People, etc., 11711]., 152. (2) Brandon vs. Brown, 106 III., 519. (3) Kingsbury vs. Powers, 131 Hi., 182. 296 ACCOlfNTlNG BY GUARDIAN. [CH. VI. unsuccessful, the attorney's fees paid by the guardian are proper cliarges against the ward's estate.(^) An appeal by an administrator or o-ii;irdian from an order rejecting one or more of his claims against the estate only brings up for review the propriety of the ruling in respect to rejected claims. The same rule appl ies in case of an appeal by tiie heir or ward.(^) 5. Jurisdiction of county court — chancery powers. — In the matter of an accounting in the county court by a guardian, in respect to his administration of the trust confided in him, the powers of that court are coextensive with those of a chancery court, and it possesses a similar jurisdiction, and adopts the same forms and mode of procedure.(^) 6. Form of report — mode of computation. — The proper mode of computation of a guardian's accounts of money in his hands used by him is on the principle of annual rests, so that the rights of the ward may be fully protected. (■*) 7. Acting without authority of court. — A guardian should usually act under the authority of the court, but should he make needed re{)airs which are beneficial to the ward, he should be reim- bursed for the same.(*) 8. Mode of accounting. — On any accounting and final settle- ment of a guardian, he shall exhibit and file his account as such guardian, setting forth specifically, in separate items, on what account expenditures were made by him, and all sums received and paid out since his last accounting, [and of all moneys on hand, and an itemized account of all notes, bonds, accounts and evidences of indebtedness, composing the personal estate of his ward, and said guardian shall produce and exhibit to the court the notes, bonds, accounts and evidences of indebtedness, so itemized and held by him ; and it is hereby made the duty of the court to inspect the assets so exhibited. Which account shall be accompanied by proper vouchers and [be] signed by him and verified by his affidavit.]!'')* (i) Kingsbury vs. Powers, 131 111., 182. (2 lb. (3) Cheney vs. Roodhouse, 135 111., 257; See lb., 32 111. Ap., 49. (4) lb. (5) lb. (6) Hurd's R. S., 783, \ 16; Laws of 111., 1885, 20S. *NoTE. — Ameudment substitates matter enclosed in brackets. <"" v 1 AcronsTiSG by GUARDFAV. 297 9. Unclaimed money — now ourAiNED. — When any rrnnrdian shall have made final settlciueut with the county court, it sliall be the ., I 52. (3) Kiii.-^sbury vs. Hutton, Supreme Court 111., Vol. ^o, No. 7, N. E. Reporter, atfirmiug case in 40 111. Ap., 424. 298 SALE OF ward's real estate. [ch. vn. CHAPTER VII. SALE OF ward's REAL ESTATE. r. Proceedings to sell real estate. 2. Form of petition — when filed. 3. Notice of application — form — service. 4. Practice— form of bond and decree. 5. Notice and terms of sale — form. 6. Return— sale approved— title — form of guardian's report— deed. 7. Proceeds— accounting for — re-investment. 8. Sale of real estate by non-resident guardian. 9. Terms of sale. 10. Deeds — title. 11. Bond for costs. 12. The Proceeding. 13. The Petition. 14. Jurisdiction. 15. Special bond. 16. Fixing time of sale. 17. Notice of application. 18. Purchaser at sale. 19. Report of sale. 20. Guardian's deed. 21. Confirmation of sale. 22. Purchaser need not see to the application of purchase money. 23. Rule of caveat emptor. 1. Proceedings to sell real estate. — Oa the petition of the guardian, the county court of tlie county wlicre the ward resides, or if the ward does not reside in the state, of tlie county wliere the real estate, or some part of it is situated, may order tlie sale of the real estate of the ward, for his supjoort and education, when tlie court shall deem it necessary, or to invest the proceeds in other real estate, or for the purpose of otherwise investing the same. Pro- vided, the said county court shall make no order for a sale under said petition, until the said guardian shall have executed and filed a bond, payable to the Peo})le of the S^at:- of Illinois, with at least two sufficient sureties to be approved by the court, in double the value of the real estate by s.iid petition sought to be sold, coudi- OH. vir.] SAi.K OF ward's rem. estate. 290 tioncd for the due and faithful accounting for, and disposition of the proceeds of all real estate that may be sold by him, under such order, in the manner provided by law; which bond may be put in suit in the name of the People of the State of Illinois, to the use of liny person entitled to recover on a breach thereof, and damages as- sessed and prccjedings had thereon, as in other cases of penal bonds.(^j 2. Form of petition — when filed. — The petition shall set forth the condition of the estate, and the facts and circumstances on which the petition is founded, and shall be signed by the guardian and be verified by his affidavit, and shall be filed at least ten days before the commencement of the term of court at which the appli- cation shall be made.(^) The petition for sale of real estate by guardian, may be in form as follows : PETITION FOR SALE OF REAL ESTATE BY GUARDIAN. State of Illinois, \ In the Countv Court, County, r"- To the term, A. D. i8... To the Hon , sole Judge of the County Court of the County of. , and State of Illinois : Your petitioner , of the county of. , and State of Illinois, guardian by the appointment of this honorable court of. , minor heir of , deceased, respectfully represents and shows unto your honor: That your petitioner was, on the. ..day of , A. D. i8..., appointed guardian of the person and property of the said , by the county court of. county, and State of Illinois, as will more fully appear on a hearing hereof, by the production of his letters of guardianship. Your petitioner would further represent, that the said is the owner in fee simple of the following described real estate, situate, lying and being in the county of , and State of Illinois, and known and described as follows to-wit : {Here describe the real estate.'] That said real estate is wholly unimproved and unproductive, and your petitioner is unable to realize anything therefrom, neither has he any funds in his hands belonging to the said , to improve said lands and br'-ng the same into a state of .:ultivation. That there is now due on said k.ui:s the taxes for the year i8..., dollars. And your petitioner would further represent .-^id show unto your honor, that at the term of this honorable court, your petitioner made a settle- ment of his accounts as such guardian to tiiat date, which said settlement was approved and filed in this honorable court, reference being had thereto for greater certainty, and that upon such settlement, there was only the sum of twenty dollars left in the hands of your petitioner, for the support, main- (x) Hurd's R. S., Cliap. 64, 1 28. (2) Hurd's R. S., Chap. 64, § 29. 300 SALE OF ward's REAL ESTATE. [CH. VII. tenance and education of the said , and that since said settlement he has been compelled to expend said last mentioned sum for the common necessaries of life, for the support of his said ward , and your petitioner files herewith a copy of said settlement above referred to, marked exhibit "A," and made a part of this petition. And your petitioner would further show that funds to the amount of..... dollars are needed and necessary for the support, maintenance and educa- tion of said minor, and for the purpose of paying the taxes now due and to accrue on said real estate ; wherefore, in consideration of the premises aforesaid, your petitioner believes it will be for the best interest of said minor, to sell a part of said real estate described aforesaid. Your petitioner believes, that the best interest of his ward will be subserved by the sale of that portion of said real estate, described as follows, to-wit : \_Here describe the real estate. '\ That said real estate is of the value of dollars, as your petitioner is informed and verily believes. And your petitioner would further represent and show unto your honor, that said minor is now of the age of.. .years, and that your petitioner has been educating him at , for some time past, and he verily believes that it will be for the best interest of his said ward to still continue him at said school. Your petitioner therefore prays an order of this court, authorizing him to sell said last above described real estate, or so much thereof as to your honor shall seem meet and proper, for the support, maintenance and educa- tion of said ward and the payment of taxes due on his lands, and for such other purposes, as to the court shall seem meet and proper ; and that the court will grant your petitioner such other and further relief in the premises as may be necessary and the law will allow ; and your petitioner, as he is in duty bound, will ever pray, etc. By , his Attorney. , Guardian of State of Illinois,! County, i being duly sworn on his oath states, that he is the petitioner in the foregoing petition, and that lie has heard the same read over, and that the matters and facts stated therein, are true in substance and in fact, as he verily believes. Subscribed and sworn to before me, this-. .day of. , A. D. i8... , Clerk County Court. 3. Notice of appltoation. — Notice of su(!li ai)plic:ifion slrall bj g'v>':i to all persons cou:^ernc;(l, by publication in some newspaper published in the county wliere the application is made, at least once in each week for three successive weeks, or by setting up written or printed notices in three of the most public places in the county, at le.ust three weeks before the session of the court at which such cir. vri.] SALE OF ward's real estate. 301 application shall be made. The ward shall be served with a copy ot* such notice at least ten days before the hearing of such applica- tion.(i) NOTICE OF APPLICATION TO SELL REAL ESTATE BY GUARDIAN. State of Illinois, ) In the County Court, County. J To the term, A. D. iZ... To all persons concerned : Public notice is hereby given, that the undersigned, guardian of. , minor child of deceased, has filed in the office of the clerk of the county court of county, and State of Illinois, a petition for an order for the sale of the following described real estate, belonging to said minor, situate,- lying and being in the county of. , and State of Illinois, and described as follows, to-wit : [Here describe the real estate.'] And that said petition will be heard on...the first day of the term, A. D. i8..., or so soon thereafter as counsel may be heard ; at which time and place you can appear and object to said petition if you see fit so to do. Dated , ..., i8... By , Attorney. , Guardian of The statute provides, in addition to the publishing and posting of the notices aforesaid, the ward shall be served with a copy of the notice, at least ten days before the hearing of such application.(^) The notice may be served by the sheriff, or by some other person. If served by any person other than the sheriff, he should file an affidavit of such service, which m ly be in form as follows: State of Illinois, \ County, i^^- being duly sworn, on his oath states, that he personally served with a copy of the foregoing notice hereto attached, by reading and deliv- ering to him a true copy of the same, on , ..., i8-.. Subscribed and sworn to before me, this. ..day of , A. D. iS-.. , Clerk County Court. Where, instead of ])ostIng notices as permitted, the notice is pub- lished in a newspaper, the guardian should also procure a publisher's certificate, wlii{;h may be in form as follows : Town of , County of , and State of Illinois. The undersigned, publis!ier of the , a weekly newspaper, of gen- eral circulation, published in the town of , county and state aforesaid, (i) Kurd's R. S, Chap. 64, I 30. (2) lb. 19 302 SALE OF ward's REAL ESTATE. [CH. VII. hereby certifies that the notice, a true copy of which is hereunto attached, was published in three consecutive numbers of said paper; the first inser- tion being on the..-.day of , A. D. 18...., and the last one on the....day of. A. D. 18.... Given under my hand, this. ..day of. , A. D. 18.... , Publislier of 4. Practice. — Such application shall be docketed as other cases, and the petition may be amended, heard or continued for further notice or for other cause. The practice in such cases shall be the same as in other cases in chancery. (^) guardian's bond in case of sale of real estate. Know all men by these presents, that we , and , of the county of , and State of Illinois, are held and firmly bound unto the People of the State of Illinois, for the use of , in the penal sum of dollars, current money of the United States, which payment, well and truly to be made and performed, we, and each of us, do hereby bind ourselves, our heirs, executors and administrators and assigns, jointly, severally and firmly by these presents. Witness our hands and seals, this—day of , A. D. 18.... The condition of this obligation is such, that whereas the above bound- en , guardian of , did, on the....day of , A. D. 18 file in the county court of county, his petition for an order to sell certain real estate of his ward in said petition described; and whereas, the said county court is about to make an order directing the sale of said real estate. Now, therefore, if the above bounden , guardian as aforesaid, shall duly and faithfully account for and dispose of the proceeds of all real estate that may be sold by him under such order of the county court, in the manner pro- vided by law, then this obligation to be void ; otherwise to remain in full force and virtue. Sealed and delivered in presence of , [l. s.] [L. S.] • [L. s.] Statf, of Illinois, \ County of ) I, , in and for said county and State, do hereby certify that , who are each personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in pe.son, and acknowledged that they signed, sealed and delivered said instrument as their free and voluntary act, for the uses and purposes as therein set forth. Given under my hand and seal, this.. ..day of , A. D. i8-... Approved by me, this.. ..day of , A. D. i8.... , Judge of the Count v Court. (i) Ilurd's R. S., Chap. 64, § 31. (;H. VII.] SALE OF ward's REAL ESTATE, 303 At the liearing, the court ascertains tlie value of the real estate to be sold, by competent evidence, and the bond is then fixed at double the amount of the value as ascertained by the court, and it is then tlie duty of the guardian to file his bond with at least two good and sufficient sureties, to be apjiroved by the court, in the office of the clerk of the county court, when Ave are ready for the decree of sale, which may be in form as follows : DECREE FOR THE SALE OF REAL ESTATE BY GUARDIAN. State of Illinois, \ hi the County Court, County, i ^^- Of the term, A. D. i8.... In the matter of. , Guardian ) Dorrpp for thp <;^ V of rp^l of. , minor lieir of. , \ decree lor the sa.e ot real deceased. J estate by guardian. And now, on this day, the same being the. ...judicial day of the present term of this court, comes the said petitioner, , by , his attorney, and submits to tlie court proof of the due publication of notice and service of notice in this cause as provided by law. And the court on inspection doth find that notice of petitioner's application for leave to sell the real estate of his ward, has been given to all persons concerned, by [publication in the , a v^^eekly newspaper, published in , in tlie county of. , and State of Illinois, for three successive weeks, commencing on the....day of , A. D. i8-..., and ending on the..-. day of , A. D. i8....,]* and tliat , petitioners ward, was served with a copy of said notice on the....day of , A. D. i8...., the same being more than ten days before the day set for the hearing of this application, and that the notice so published and served, is in all respects in conformity with the statute in sucli case made and pro- vided. And this cause coming on now to be heard upon the merits of said petition, exhibits, files, and oral proofs, the petitioner introduced as a wit- ness , and who being duly sworn, testified touching the matters contained in said petition, and a'so, as to the value of said real estate in said petition mentioned : And the court having eximined said petition, files and exiiibits, and heard the testimony adduced in support of said petition, and the argument of counsel ; and being n^w sufficiently advised and satisfied in the premises, doth find, that said petition and each and every allegation thereof are true, and that the prayer of said petition should be granted ; and that the interest of said ward will be promoted by the sale of a part of said premises in said petition described, and that funds are needed for the support, maintenance and education of said ward. It is therefore ordered, adjudged and decreed, by the court, that the »aid guardian have leave, and he is hereby authorized to sell all the right, *0r, BhotiUl the rerjuiaite notice have bwen e;iveu by posting notices, tlie following should be Inserted within the brackets : "setting up written or printed noiio.^s tliereof in tlireo of tlie most public iilaces in this oouuty, more than three wcelts bei'oro tlie first day ol this term of the court." 304 SALE OF ward's REAL ESTATE. [CH. VIL litre, claim and interest of said , in and to the following described real estate, to-wit : \_Here describe the real estate.'] He having previously filed his bond with good and sufficient sureties, approved by the court, condi- tioned for the due and faithful accounting for, and disposition of real estate that may be sold by him, under this order, in double the amount of the value of said real estate, as ascertained by the court. And it is further ordered, that said guardian advertise the time, terms and place of said sale, and a description of the premises sought to be sold, for at least three weeks prior to the day of said sale, by publication in some weekly newspaper published in said county, Illinois, and by posting up written or printed notices thereof, in at least four of the most public places in the county, in the vicinity of said real estate sought to be sold. That said sale shall be made on the following terms: Ten per cent. o» said purchase money to be paid cash in hand, and the residue thereof in two equal payments, one of which shall be payable in six and the other in twelve months from the day of said sale, the purchaser to give his notes with ap- proved personal security, and a mortgage on the premises sold to secure the payment of the purchase money. Said sale to be made at the. ..front door of the court house, in Illinois, at the hour of one o'clock p. m., of the day of sale, to the highest and best bidder, at public outcry. Provided, however, no bid shall be received for less than dollars per acre. And it is further ordered, that said guardian may, for good cause, post- pone said sale at the time first fixed for the same, to some other time, on giving notice as in the first instance. And it is further ordered, that tiiis cause stand continued for report of said sale. 6. Notice and terms of s.\le. — The court shall direct notice of the time and place of sale to be given, and may direct the sale to be made on reasonable credit, and require such security of the guardian or purchaser as the interest of the ward may require.(^) The notice of the guardian's sale may be in form as follows: NOTICE OF guardian's SALE OF REAL ESTATE. S TATF. OF Illinois, 1 ss. DIS, ) County By virtue of a decretal order of the court of said county, entered at the term of said court, A. D. iS-.., on the application of , guard- ian of. , minor, to sell the following described real estate, belonging to said minor, situate in the county of , State of Illinois, to-wit: [Here describe the real estate.'] I shall, on the. ..day of...., A. D. i8..., at the. ..door of the court house, in the town of. , county, Illinois, at the hour (i) Hurd's R. S., Chap. 64, I 32; Hurd's R. S., Chap. 100, ? 3. CH. VII.] SAI.E OF ward's REAL ESTATE. 305 of one o'clock, p. m., sell all the interest of said minor in and to the said real estate at public vendue. Terms of Sale : Ten per cent, of said purchase money to be paid cash in hand, and the residue thereof in two equal payments, one of which shall be payable in six and the other in twelve months from the day of said sale, the purchaser to give his notes with approved personal security, and a mortgage on the premises sold to secure the payment of the purchase money: Provided, however, no bid will be received for less than dollars per acre. A B, By , Attorney. Guardian for 6. Return — sale approved — title. — It shall be the duty of the guardian making such sale, as soon as may be, to make re- turn of such sale to the court granting the order, which, if approved? sliall be recorded, and shall vest in the purchaser or purchasers all the interest of the ward in the real estate so sold.(') The report of the guardian may be in form as follows: guardian's report. State of Illinois, \ In the County Court, County, j ■ To the term, A. D. iS-— In the matter of the application "j of A B, Guardian of. , ?• Report of Guardian's Sale. minor heir of. , deceased, j To the Hon ,Jud_:;e of said Court: The undersigned, guardian of , minor heir of. , deceased, would respectfully report: That, in pursuance of tlie order and decree of this honorable court, made and entered of record at its term, A. D. i8..., on the petition of the undersigned for leave to sell tlie real estate in said order described, for the purposes therein mentioned, after ha\ ing first adver- tised the time, terms and place of said sale, together with a descripiion of the real estate sought to be sold, by posting four printed notices thereof, as fol- lows : One at..., one at..., one at..., and one at..., the same being four of the most public places in the county and in the vicinity of said real estate, at least three weeks before the day of said sale ; and by publishing a copy of said notice in the , a weekly newspaper, published in the town of , in said county of , and State of Illinois, for three successive weeks, the first in- sertion being on the. ..day of , A. D. iS..., and the last beingon the. ..day of , A. D. i8-.., a copy of which notice with the affidavit of posting and the printer's certificate of publication is hereto attached, marked "Exhibit A," and made a part of this report, I did, on , the. ..day of. A. D. iS..., at one o'clock p. m., of said day, at the front door of the court house (i) Kurd's R. S., Chap. 64, \ li- 306 SALE OF WARD^S REAL ESTATE. [CH. VIT. in , Illinois, offer said lands in said order of the court, and in said no- tices aforesaid specified, for sale at public vendue, and bid the sum of dollars for the said real estate described as follows, viz. : S^Here de- scribe the real estate?^ And that being the highest and best bid offered at said sale, I struck oiTand sold the same to him for that sum. And the said having complied with all the terms of said sale, by paying ten per cent, cash in hand and executing his notes in two equal pay- ments for the residue thereof, the first of said notes due and payable in si.x months, and the second payable in twelve months from the day of said sale, with good personal security and a mortgage on the premises so sold, I, as guardian of the said , executed a deed of conveyance of the said real estate, and delivered the same to the said , subject to the approval and ratification of the court. All of which is respectfully submitted and an order of approval and confirmation of title in said purchaser prayed for. Dated this....day of , A. D. i8.... By Attorney. , Guardian of. ORDER APPROVING SALE. State of Illinois, \ In the County Court, County, J • To the term, A. D. i8..~ In the matter of ........,, Guardian | q^^^^ confirming report and sale oi , mmor heu ot , > r i ^ .. u {-- r deceased. J of real estate by Guardian. And now on this day, the same being the. -judicial day of the present term of this court, comes the said by , his attorney, and made report of the sale of the real e'state, described, in pursuance of an order of this court, made at the term, A. D. iS-..., which said report is in words and figures as follows, to-wit: \^Here copy the report in full. 'I Wliich said report is received and approved, and ordered to be spread at large upon the records of this court, which is accordingly done; and all the acts and doings of said guardian in and about said sale confirmed ; and all the inter- est or title of the said in said real estate, confirmed in , the purchaser, at said sale. guardian's deed on sale of real estate. This indenture, made this—day of- , A. D. iS-..., between A B, of the county of , and State of Illinois, the duly appointed and qualified guard- ian of C D, minor, under letters issued from the county court of. county, in the State of Illinois, as such guardian, party of the first part, and E F, of the , in the county of , and State of , party of the second part : VVitnesseth, that whereas, the said party of the first part, as such guard- ian, on the day of , A. D. i8...., more than ten days before the com- mencement of the term of court at which said application was made, filed.... petition in said court, praying, upon legal cause therein set forth, for an Older to sell the real estate belonging to said ward, hereinafter described, and gave notice of such application, to all persons concerned, by publication CH. VII.] SALE OF WARd's KKAL ESTATE. 307 in the , (a newspaper published in said county of. ,) once a week for three successive weeks, before the session of the court at which said application was made, and also served said ward with a copy of such notice ten days before the hearing of such application : And whereas, the said county court, after hearing said application, on the....day of , A. D. i8...., did, by order duly entered, empower and direct the said A B, as such guardian, to sell at public vendue the real estate of said ward hereinafter described, as prayed in said petition : And whereas, in pursuance of the said decretal order of the county court aforesaid, the said party of the first part, as such guardian as aforesaid, having given due public notice of the intended sale, together with a descrip- tion of the real estate to be sold, to be previously posted for....weeks at—. of the most public places in the county where such real estate was sold, and also to be published for. ..successive weeks prior to said sale in the , a newspaper published in said county, agreeably to the order and direc- tion of the said county court, did, on the....day of. , A. D. i8...., pursuant to the order and notice aforesaid, sell at public vendue, the real estate of the said ward hereinafter described, to E F, the said party of the second part, for the sum of dollars, being the highest bidder therefor. And whereas, the said party of the first part made return of his pro- ceedings and sale under .said order to said county court, and the said county court having carefully examined the same on the.. -day of , A. D. i8..., finding the same correct, did approve and confirm the same, and ordered the said A B, as such guardian, to execute, acknowledge and deliver a deed of said real estate to said party of the second part, on. ..complying with the terms of said sale. And whereas, the said party of the second part has in all things coni- plied with the terms of said sale on. ..part to be performed; now, there- fore, this indenture witnesseth, that the said party of the first part, in consideration of the premises and the sum of. dollars to....in hand paid by the said party of the second part, the receipt whereof is hereby acknowl- edged, ...granted, bargained and sold, and by these presents do grant, bargain and sell unto the said party of the second part, ....heirs and assigns forever, all the following described lot, piece, or parcel of land, situate in the county of. , and State of Illinois, and known and described as follows, to- wit': [Here describe the land.'] Together with all and singular the here- ditaments and appurtenances thereunto belonging, or in anywise, appertain- ing, and all the estate, right, title, interest, claim and demand whatsoever, at law or in equity, of the said ward , in and to the said premises. To have and to hold the same unto the said party of the second part,. ...heirs and assigns forever, as fully and effectually to all intents and purposes in law as he, the said party of the first part, might, could, or ought to sell and convey the same, by virtue of the said decretal order of tlie said county court above referred to. In witness whereof, the said party of the first part, as guardian as afore said,....hereunto set.. ..hand and seal the day and year first above written. A B, [L. s.] , [L. s.] 308 SALE OF ward's REAL ESTATE. [CH. VII. State of Illinois, "t County of. r^' I, G H, clerk of the county court in and for the said county, in the State aforesaid, do hereby certify that A B, guardian of C D, who is personally known to me to be the same person whose name is subscribed to the fore- going instrument, appeared before me this day in person, and, as such guardian, acknowledged that he signed, sealed and delivered the said instru- ment, as his free and voluntary act, for the uses and purposes therein set forth. Given un.l t my IiaiiJ and official seal, this-. .day of. , A. D. i8... G H, [l. s.] Clerk of the County Court. 7. Pjll 'EK.DS — ACCOUXTrNG FOR — RE-INVESTMENT. All ac- couiit of all in;)n:y.s and sjcurities recoiveJ by any gnardiaa for the s.ile of real estate of his ward, shall be returned on oath of such guardian, to the county court of the county where letters of guard- ianship were obtained, and such money shall be accounted for, and subject to the order of the county court, in like manner as other moneys belonging to such minor. In case of sale for re-investment in this state, the money shall be re-iiivestcd under the direction of the court.(^) 8. Sale of real estate by non-resident guardian. — Where any person residing in any other state of the United States, or any territory thereof, shall have been or may hereafter be ap- pointed guardian, in the state or territory in which such person resides, of any infant or other person owning real estate within this state, not having any gua:'dian in this state, it shall and may be lawful for every such guardian to file his or her petition in the circuit court of the county in which said real estate, or the major part thereof, may lie, for sale of said real estate, for the })urpose of educating and supporting such infant, or other person under guard- ianship, or for tliL! purpose of investing the proceeds of su(;h real estate in such manner as the court which appointed such guardian, may order and direct; and the said circuit court is hereby fully authorized and empowered to order a sale of such real estate con- formably to the prayer of said petition : Provided, that every such guardian applying for sueh sale, .shall file with his or her petition^ an authenticated copy of his or her letters of guardianship : (I Ilur.l's R. S., Chni). 64, 234. CH. Vri.] SALE OF WARD's REAL ESTATE, 309 And, Provided, further, tliat the said circuit court shall make no order for a sale under said petition, until the said guardian shall have executed and filed in the court which appointed said guardian, u bond, with sufficient security, approved by said last mentioned court, for the due and faithful ap[)lication of the procecnls of every such sale, in such manner as the said last mentioned court may direct; an autheuticatod copy of which said bond, and the apj)roval thereof, shall bo deemed and taken by the circuit court as sufficient evidence of the execution and lillngof the sanie.(^) 9. Terais of sale. — Every guardian applying for an order of sale under the foregoing section, shall be required to give notice of liis or her petition in the same manner as is now required by law in cases of application for sales of lands belonging to minors, by resident guardians ; and in every order for the sale of real estate under this act, it shall be the duty of the court to prescribe the terms of said sale, and the notice which shall be given thereof, and the ])lace where such sale shall be made.(^) 10. Deeds — title. — All sales of real estate, under the provis- ions of this act, are hereby declared to be good and valid ; and all deeds executed by such guardian to the j)urchaser or purchasers under such sales, shall convey to and vest in such purchaser or purchasers all the estate, right, title and interest, in law or equity, of said infant or others in and to the land so sold.(^) 11. Bond for costs. — In all suits and petitions by non-resi- dent guardians, they shall give a bond for costs, as in cases of other iion-residcnts.('') 12. The proceeding. — A proceeding to sell real estate by the guardian, is not adverse to the interest of his wards, nor against them ; and it is not necessary they should have a day in court. (^) They need not be made parties to the proceed ing, nor is the aj)i)')int- uient of a guardian ad [item required. (**) It is a proceeding purely (i) Hurd's R. S., Chap. 64, ^ 47. (2) Hurd's R. S., Chap. 64, 'i 48. (3) Hurd's R. S., Chap. 64, | 49. (4) Hurd's R. S., Chap. 64, ? 50. (5) McClay vs. Norris, 4 Gihn., 372; Mason vs. Wait, 4 Scam., 127; Smith vs. Race, 27 111., 387 ; Gibson vs. Roll, 27 111., SB. (6) Smith vs. Race, supra; Campbell vs. Harmon, 43 111., 18; Fitz- gibbon vs. Lake, 29 111., 165; Rice vs. Parkman, 16 Mass., 326; Whitlock's case, 32 Barb., (N. Y.) 48; Berry vs. Young, 15 Texas, 369; Barnes vs. Hardeman, 15 Texas, 366. 310 SALE OF ward's REAL ESTATE. [CH VII. in rem. No parties are necessary. It is ex parte, in the name of the guardian, on behalf of the ward, after notice to all concerned. (^) He has no power to sell the real estate of his ward, nnless anthor- ized by the court, and the power then conferred, is a naked power, and must be strictly pursued.^ ) And the provisions of the statute relating to guardians' sales under a decree of the court, must be strictly complied with, or the sale will be void.(^) 13. Petitiox. — A guardian can not, on his own motion, apply for an order to sell his ward's real estate, but must follow the direc- tions of the county court; if, on an order being made by that court, he finds he has no funds in his hands, he may then, but not sooner, file his petition, and apply for the sale.(^) The application in case of residents, should be made in the county where the ward resides, although the estate may be in a different couuty.(^) The petition should state affirmatively where the wards reside.(^) Where the guardian avers in his petition, that no personal property of the ward had ever come to his hands, it was held, although the expres- sion was a departure from the statute, still it was not fatal to the jurisdiction of the court. The proper averment, however, would have been, that the guardian has faithfully applied all the personal estate.^) If the petition alleges that the application is made for the sup- port and education of tlie ward, the necessity for a sale for that purpose must be shown.(^) So, too, where a guardian petitions the court to sell the real estate of his ward, to pay off a mortgage thereon. It should not be entertained, unless there is something more than the mere opinion of the guardian shown, by which the court can sec that such a sale would be more advantageous to the (i) Mulford vs. Beveridge, 78 111., 455- (2) Mason vs. Wait, 4 Scam., 127; Moore vs. Hood, 9 Rich., fS. C.) Eq., 311 ; Worth vs. Curtis, 15 Me., 22S; Dorr, Petitioner, etc., Wiilk., (Michigan) 145 ; Jackson vs. Todd, 25 N. J., L., (I. Dutch) 121 ; Antonidas vs. Walling, 4 (N.J.) Eq., (3 Green) 42. {3) Cooper vs. Sunderland, 3 Iowa, 114; Frazier vs. Steenrod, 7 Iowa, 339; Shanks vs. Seamonds, 24 town, 13; Wells vs. Cowherd, 2 Mete, (Ky.) 514; Barrett vs. Churchill, 18 B. Mon., 387; Pendleton vs. Truebloud, 1 Junes, (N. C.) 96.- (4) Loyd vs. Malone, 23 111., 43. (5) Spellman vs. l3owse, 79 111., 66; Loyd vs. Malone, supra. (6) Loyd vs. Malone, supra. (7) Young vs. Lorain, 11 111., 624. (8) Loyd vs. Malone, sjipra. CH. VII.] SALE OF WAKD's REAL ESTATE. 311 interest of the wards, than a sale upon the foreclosure of the mort- guge.(i) Without legal authority of a court of competent jurisdiction, a guardian can not sell the property of his ward. 14. Jurisdiction. — In a guardian's sale of real estate, if the court acted within its jurisdiction, every presumption is in favor of its judgment, and nothing can be alleged against it in a collateral proceeding.(^) As a general rule, where a court has jurisdiction of the subject matter and of the parties, and proceeds to adjudicate, and render a judgment or decree, it can not be impeached in a col- lateral pi'oceeding.(^) Enough must appear, either in the applica- tion or the order, or somewhere upon the face of the proceedings, to call upon the court to proceed to act, and where that does appear, then the court has properly acquired jurisdiction.(*) A sale with- out the notice required by law, is void for want of jurisdiction in the court ordering such sale. AVhere, however, the notice is merely defective, the jurisdiction is saved, and the proceeding can not be assailed collateral ly.(^) The i^roceedings will be void for want of jurisdiction, where a notice is given by publication, under the statute, that the guardian will apply to the court at a certain term, for an order to sell the land of his ward, and the application is made at a diflPerent term. And such will be the result, although the term of the court to which the notice was given, was not held, by reason of the absence of the judge, there being no petition filed within the time for which such term could have been held by law, nor any steps taken to give the court jurisdiction, either of the subject matter or the person, at that term.(^) Where, however, notice was given to the April term of the court, but the term was changed from April to March, by an act of the legislature, it was held the application was properly made (i) Greenbaum vs. Greenbaum, 8i 111., 367. (2) Young vs. Lorain, 11 III., 624; Nichols vs. Mitchell, 70 111., 25S; IVIul- ford vs. Stalzenbach, 46 III., 303. (3) Conover vs. Musgrave, 68 111., 58. (4) lb. (5) Lyon vs. Vanatta, 35 Iowa, 521; Rankin vs. Miller, 43 Iowa, 11; Kenedy vs. Gains, 51 Miss., 625. (6j Knickerbocker vs. Knickerbocker, 58 111., 399 ; Nichols vs. Mitchell, supra. 312 SALE OF ward's REAL ESTATE. [CH. VII. at the March term, the notice standing in the place and performing the office, of process.(^) The proceeding l)eing statutory, and the statute requiring that the application for the sale of the real estate sliall be made in the (iounty where the ward resides, or, in case the ward does not reside in the state, in some county where the whole or a part of the real estate is situated, is jurisdictional, and any material deviation from tlicsc requirements, as to the court in which the proceedings must l)C had, is fatal to tlie jurisdiction of the court. So, an order made by a prol^ate court, directing the sale of property in another state, would 1)6 an assumption of authority over a subject matter not within the jurisdiction of the court, and consequently void.(^) And ■t would bo ftital if a person, having no letters of guardianship, were to apply for the sale of the land of a minor ; as, it is only by the power conferred by the appointment of a guardian, that he becomes invested with authority to apply for, or the court with jurisdiction to pass such decree. The want of jurisdiction of the subject matter, may be shown at any stage of the proceeding, and until every order or step required by the statute has been taken and completed. Q A proceeding by guardian to sell the land of his ward, f )r his maintenance, being in rem, and made on behalf of the owner, it i," only necessary the court should have jurisdiction of the subject matter to make an order, to sustain a sale thereunder. And where the decree recites, that the ])roceeding3 of the guardian had in all respects been, in conformity with law, etc., it was held, the court had jurisdiction to render the decree. (^) 15. Spe JiAL BOXD. — No title passes by a sale of real estate by a guardian, who fails to give the special bond required by law; and the purchase money may be recovered of him by the purchaser, by action for money had and received, or on the covenants of the deed.(^;* (i) Pursley vs. Hays, 22 Iowa, 11 ; Gilmore vs. Rodgers, 41 Pa. St., 120; {2) Price vs. Johnson, i Ohio St., 390. [Spring vs. Kane, 86 III., 5S0. (3) Spellman vs. Dowse, 79 111., 66. (4) Spring vs. Kane, supra. (5) Williams vs. Morton, 38 Me., 47. *NoTE.— The authority of WiUiamiVi. Morton, upon which this text is predicated, may well be doubted, where the court prouounciug the decree has jurisdiction. At most, the failure to give the special boul provided for in Secrion 28, is but au irregularity, of which a bidder, who is only bound to Ijnow that the court had jurisdiction, need not take notice. In M'yman vs. Camp- bell, 6 Porter, (Ala.) whsre it was sought to defeat a title in a collateral action, on account of th6 failure to give a spscial bond, such as is required In the above Section and in Section 23, Chap, 3, Uurd's Statutes, it was held, that such an omission could not affaot an innocent purchaser. OH. VII 1 SALK OF ward's REAL ESTATE. 313 Where a gunrflinn makes a sale of property under a void decree of th;' court, if the ward, after arriving at maturity, receives the purchase money, it will amount to a confirmation of tlie sale by the ward, and work an estoppel. (^) A sale made by a guardian of the estate of the ward, to })ay off a claiin allowed the mother by the guirdian for tiielr nurture, whicli is in fraud of the wards, and which enables the mother to get possession of the children's estate, will be set aside, even upon the motion of a stranger.(^) Orders and decrees are final against minors subject to writs of error ;(^) but they may file an original bill to impeach the decree, either for fraud or for error appearing on its face, or for want of jurisdiction. C') The })rinciple o^ caveat emptor, (Let the purchaser beware,) ap- plies to guardian's sales; and a suppresslo t^cr/, (Concealment of truth,) on the part of the guardian, will not invalidate the sale, or enable the purchaser to rescind it. Allter, (Otherwise,) of a sug- r/edio falsi, (A statement of a falsehood ).(^) It is the rule in this state, that a purchaser under a judicial sale, is not bound to look beyond the decree, when executed by a conveyance, nor go further back than the order of the court, when the facts necessary to give tlie court jurisdiction, appear on tliQ face of the record. (^) While a guardian's sale should be closely scrutinized, yet, if it should be made to appear, on such scrutiny, that the substantial requirements of the law have been observed and pursued, persons chiiming under such proceedings, have a right, and it is the policy of the law, no less than the dictates of justice, that protection should be afforded them\^'j. Public policy requires stability in all sales, and that they (i) Parmele vs. McGinty, 52 Miss., 476; Douglas vs. Bennett, 51 Miss., 680. (2) Barnes vs. Hazleton, 50 111., 430; Hess vs. Voss, 52 111., 473. (3) Enos vs. Capps, 15 III., 277 ; Loyd vs. Malone, 23 111., 44. (4) Loyd vs. Malone, 23 111., 43 ; Kuchenbeiser vs. Beckert, 41 111., 177; Hess vs. Voss, supra; Reynolds vs. McCurry, 100 111., 356; Gcoch vs. Green, 102 111., 507 ; Wright vs. Gay, loi 111., 233. (5) Mason vs. Wait, 4 Scam., 127. (6) Ikickmaster vs. Carlin, 3 Scam., 104; anie page 165; Selb vs. l\Ion- tague, 102 111., 446. (7) Mulford vs. Stalzenback, 46 111., 303. 314 SALE OF ward's REAL ESTATE. [cH. VII. A notice in the following form was given : Notice is hereby given, that a petition to sell the real estate belonging to tiie minor hers of Mirtin Spellman, deceased, will be presented to the circuit court of Will county, Illinois, at the next term thereof, to be holden at the court house in Joliet, in said Will county, on the third Monday in December next, when and where all persons interested may appear and show cause, if any they have, why such petition should not be granted. LocKPORT, Oct. 27, 1853. A. J. Mathewson, Guardian. The notice was held snfficient. It is not necessary to state in the notice the special reasons why the order of sale should be asked. Neither will the court rev^erse the decree of sale, for the reason that the printer's certificate of the publishing tlie notice failed to show the county where such notice was })ublished, it being otherwise in due form, presuming that the court below heard other evidence of that fact, as it could legally do.(^) After the lapse of twenty years from the date of a decree for the sale of a ward's land by his guardian, and the destruction of the court records, oral proof of the publication of notice by the guardian of his intention to present a petition for leave to sell, etc., coupled with the fact, that a copy of the original decree, recited that due proof of the time, place, and intention of presenting such petition, was made by publication in one of the public newspapers of the county, for six successive weeks, was held sufficient to show the requisite notice of the application to sell had been given. (^) 18. Purchaser at sale. — To entitle one claiming to be the highest bidder at a guardian's sale, to the rights of a jjurchaser, payuicnt nmst be tendered within a reasonable time.(^} 19. Report of sale. — Upon a sale by a guardian, the title Is defective, unless the guardian shall make a report oi' his proceed- ings, and have the same confirmed by the court, 'j'he title does not vest in the purchaser until the report is made and approved by the order of the court authorizing the sale.(^) Where a statute says that a title to laud may be transferred in a jiarticular way, it must be done in the way prescribed, or it receives no sanction from the sta'ute, and is void.(^) (i) Spellman vs. Mathewson, 65 111., 306; Pierce vs. Carle^on, 12 III., 364. (2) Spring vs. Kane, 86 111., 5S0. (3) People vs. Circuit Judge, 19 Mich., 296. (4) Youngvs. Keogh, II 111., 642 ; Youngvs. Howling, 15 111., 48: ; Rawl- ings vs. Bailey, 15 111., 178; Ayres vs. Baumgarten, 15 111., 444; Mulford vs. Beveridge, 78 111., 455. (5) Young vs. Dovvling, j-zz/ra. <^"- vn] SAF.K OF ward's reai. estate. 315 The laj)sc of time will not prevent a present confirmation of tlie sale, wliciv all tlic proceeding's are regular and in complianee with the statute, it apjK'aring that had the report oeeu made soon after the sale, it would have been confirmed, even though seventeen years may have elapsed.(^) Where a rei)ort of a guardian's sale is presented to the court, and a motion entered for an order approving the sale, seven or eight years after the sale, the motion and order form a part of the orignal proceeding under which the sale was ordered to be made, and on the hearing of the motion, any objection can be ui'ged that could have been, had the motion been made at the next term after the sale.(^) The account of moneys received on sale of real estate re(]uired to be made by the guardian to the county court under oath, is not conclusive upon the ward when assailed by him. The county court has the right to allow or reject the report, may require proofs, ex- amine witnesses, and resort to all means necessary to ascertain the truth. This is its duty, and its powers in this respect are co-exten- sive with a court of chancery.(^) After the lapse of many years, and the destruction of the records, where the validity of a guardian's sale is questioned collat- erally, it will be presumed that the clerk of the court filed the guardian's petition, and that he also recorded the guardian's report of sale on its appi'oval, as it was his duty to do so.C*) 20. Guardian's deed. — The guardian can insert no covenants in the deed, which are binding upon the ward;;*) and heiice there can be nothing in the deed which can operate by way of estoppel u[)on the ward. If the guardian choose to insert covenants in the deed, he may be held responsible upon them, and to him alone must the grantee look for redress.(^) So, where a guardian made a deed which contained ambiguiticis in the description of the grantees, and also omitting the number of the block, in describing the prem- ises, it was held that parol evitlence was competent in both cases to remedy the defect, and held, also, that a subsequent deed executed by the guardian for the purpose of ex[)!aining the deed and correct- (i) Harvey, Guai-dian, In the matter of, 16 111., 127. (2) Spellmaii vs. Dowse, 79 III., 66. , (3) In Re Steele, 65 111., 322. ^ (4) Sprinsj vs. Kane, 86 HI., 580. (5) M isoii vs. Cakiwell, 5 Giltn , 196; Yoan.^ vs. Lorain, 11 III., 624. (6) Whiting vs. Dewey, 15 Pick., (M.isj.j 428; Young vs. Lorain, supra. 316 SAi>E OF ward's real estatf:. [ch. yri. ing mistakes therein, ccnXl not be admitted in evidence. The guardian's power ceases when he has made the sale and conveyance, and his acts are approved by the court.(^) If, at the time of a guardian's sale, tlie infant has but an equit- able title and subsequently acquires the legal title, equity will compel a conveyance to the purchaser of the subsequently acquired legal title, on the ground that the legal title was held as a trust ;(^) but, where a ward subsequently acquires from the government of the United States, a patent to the premises which had been sold by his guardian, at a guardian's sale, under the statute, his independent title, subsequently acquired, does not inure to the benefit of a l)revioiis purchaser at a guardian's sale ; nor is he estopped by the guardian's deed from setting up such subsequent title.(^) A guardian sold land, and executed a deed to be delivered to the purchaser upon his securing the purc^hase money, in accordance with the decree. The party who purchased at the guardian's sale, having failed to comply with the terms of the sale, under an arrangement with the guardian, conveyed the land to a third person by a deed absolute on its face, but to be held by such third person and by him to be re-sold. The land was afterwards re-sold for more money than the amount of the original bid by the purchaser at the guardian's sale, and the proceeds were accounted for to the guardian. Under these circumstances, it was held not material whether the deed from the guardian to the purchaser at the guard- ian's sale, was ever in actual possession of such purt-haser or not. and that what occurred, was equivalent to a delivery, and the title acquired under these circumstances, was valid. (*) A married woman, Avho is a guardian, can convey the real estate of her ward, without her husband joining in the deed.(^) If a person should purchase at a guardian's sale for the benefit of the guardian, but take the deed to himself, afterward conveying to the guardian, the purchase will not be v(j>id at law, and even in equity, such sales are not ipso jure, void, l)ut the trustee purchases subject to the equity of having the sale set aside, if the cestui que (i) Young vs. Lorain, ii 111., 624. (2) Young vs. Dowling, 15 111., 482. (3) Young vs. Lorain, supra. (4) Mulfurd vs. Beveridge, 78 111., 455. (5j Palmer vs. Oakley, 2 Douglass, (Mich.) 433. Cri. VJI.] SALE OF ward's REAL ESTATE. 317 trust, within a reasonable time chooses to say he is not satisfied witli it.(*) 21. Confirmation of sale. — The approval of a guardian's sale of real estate, by the county court, is not a mere formality ; it is an affirmation not merely of tlie deed, but of the sale or mortgage necessary to make it valid. (^) The discretion to be used by the court in confirming sales of guardian's must conform to established ])rinciples; and as a general principle, mere inadequacy of price is not a sufficient cause for setting aside a sale. The English practice of opening sales before confimation of the report, on the offer of a reasonable advance upon the sum bid at a sale, and the payment of the expenses of the purchaser — the party applying to have the biddings opened being required to deposit the amount of such advance and expenses — has not been adopted in this country. (^) The confirmation of a sale is a judicial act.(*) Unless judicial, a court would have no power to perform it, for a court has no other functions than judicial.(^) A void act can not be confirmed. C') An order entered by mistake, dismissing the proceeding after decree and before the confirmation of sale, Avould not vacate the order of sale, nor revoke the authority of the guardian. Q Where the statute requires the court to direct the time of sale, a sale at another time must be void.(^) Where, however, the sale was ordered to be made, and was made on the lOth day of June, but was advertised for the 18th day of June, and no fraud was shown, the sale was not void as having been made without i)0wer, and not even voidable as against a purchaser having no notice of the irreg- ularity. (^) For, where the court has jurisdiction, and makes an order of sale, the fact that the guardian may proceed irregularly in the execution of the order, will not make the sale invalid.(^'') (i) Hoskins vs. Wilson, 4 Dev. & B., (N. C.) Law, 243; Patton vs. Thompson, 2 Jones, (N. C.) Eq., 2S5 ; VVyman vs. Hooper, 2 Gray, (Mass.) 141 ; Bostwick vs. Atkins, 3 Comst., 53. (2) Wade vs. Carpenter, 4 Iowa, 361. (3) Aj-ers vs. Baunigarten, 15 111., 444. (4) Halleckvs. Gny, 9 Cal., iSi. (5) Ayers vs. Baunigarten, supra; Ex Parte Guernsey, 21 111., 443. (6) Sinclair vs. Jackson, S Cowen, (N. Y.) 543. (7) Fitzgibbon vs. Lake, 29 III., 165. (S) Wellman vs. Lawrence, 15 I\iass., 326; Reynolds vs. Wilson, 15 III., 394. (9) Conover vs. Musgrave, 68 111., 58. (loj Mulford vs. Beveridge, 78 111., 455. 20 318 SALE OF ward's REAL ESTATE. [CH. VII. 22. Purchaser not bound to see to application. — The purcliaser of real estate at a guardian's sale, is not responsible for the order of the court in appropriating tiie money realized from the sale; and, although it may have been niis-applied, the purchaser's title would not be affected thereby.(^) Any agreement among parties not to bid against each other at a public sale of land, being designed and calculated to stifle comjieti- tion, is such a fraud as to afford ground of avoiding the sale as against a purchaser participating in the fraud.(^) Whether one of two guardians named in a will, had authority to apply for an order of sale, was for the court, where the application was made, to determine. And so of the regularity of the sale, that court would determine that question upon hearing.(^) Where land was sold by a guardian under authority of law, though the sale was not confirmed, and the purchase money paid and })art applied to the support of the minors, and the residue invested in lands, which were received and appropriated by the ward, the minors will be estopped in equity, from proceeding to recover the land sold by the guardian, from an innocent purchaser, not immediately connected with the sale.(*) But the mere fact, that the guardian ap])lied a part of the proceeds of such sale to the support of the ward, will not be an estoppel on him from disputing the validity of the sale.(^) Where a sale is confirmed by the court, the confirmation cures all irregularities in the sale.(^) Laud subject to dower, should not be sold for the sup])ort of infant heirs, without first ascertaining and recognizing the rights of the widow.(') And when a sale by a guardian of the Avard's lauds, iu which the guardian herself has a right of dower, is avoided by the ward, because made to the guardian herself, the right of dower revives.(^) (i) Fitzgibbon vs. Lake, 29 111.. 165; Mulford vs. Stalzenback, 46 111., 303; Mulford vs. Beveridge, 79 111., 455. (2) Loyd vs. Malone, 23 111., 43. (3) Fitzgibbon vs. Lake, supra. (4) Penn and wife vs. Heisey, 19 111., 295; Commonwealth v^s. Sherman, 6 Penn. St., 346 ; Smith vs. Warden, 7 Penn. St., 424 ; Gibson vs. Roll, 27 111., 88; Conover vs. Musgrave, 68 111., 58; Favil vs. Roberts, 10 N. Y., 222. (5) Schnell vs. Chicago, 38 Hi., 3S4. (6j Anderson vs. Foulke, 2 Harris & Gill, 346; Bland vs. Muncarter, 24 Miss., 62; Doe vs. Harvey, 5 Blackf., (Ind.) 487; Garrett vs. Moss, 20 111., 550; Fitzgibbon vs. Lake, supra; Conover vs. Musgrave, supra. (7) Lijyd vs. Mai one, .?///'/'«,• Ex' Parte Guernsey, 21 111., 443. fS) Walker vs. Walker, 101 Mass., 169. cir. VII.] SALE OF ward's reai- estate. 319 AVhere a guardian proceeded by bill in circuit court for leave to sell his ward's land, and filed as an exhibit with the bill, an order showing her appointment as guardian, and thatshe had filed her bond, the court may properly presume that the bond mentioned in the order of" the probate court, was such as the law requires. (^) 16. Fixing time op sale. — It was not intended under our statute, to require the couit to fix the precise day or hour of sale. It is siiffi(;ient if the court in its order fixes certain reasonable limits, both as to the day and hour within which the sale shall be held, requiring the guardian to give due notice ; and the guardian may exercise some discretion in a mode favorable to the ^\'ard's interests ;(^) and while it is the duty of the court, in authorizing a guardian's sale of real estate, to fix the day of sale, Avhicli admits of doubt, its omission to do so, can not vitiate the sale, as it does not affect the jurisdiction. It is a mere irregularity, at most.(^) But a sale of land by a guardian, at a time other than that prescribed by the statute or the decree, is not only irregular, but void, even in the case of one holding a derivative title acquired in good faith, unless the sale is formally ap])roved by the probate court.(*) 17. Notice of application. — A notice in due form, signed in the name of the guardian by her attorney, with the affidavit of the attorney showing that he posted it in the manner required by law, is sufficient; and the attorney is a competent person, not only to post the notice, but also to prove such posting.(^) Where the statute requires the notice of the application of the guardian to sell the real estate, to be published in a public news- paper at least once in each week for three weeks successively, or to be posted in three public places at least three weeks before the session of the court at which the application is to be made, it is sufficient if the notice is published for three successive weeks in a newspaper, and the first ])ublication is made only three weeks before the session of the court. (^^) (i) Campbell vs. Harmon, 43 111., 19. (2) lb. (3) Spring vs. Kane, 86 111., 580. (4) Brown vs. Christie, 27 Texas, 73. (5) Campbell vs. Harmon, sv-bra. (6j Fry vs. Didvvell, 74 111., 381 ; Gilniore vs. Sapp, 100 III., 297. 320 SALE OF ward's REAL ESTATE. [CH. VII. should not be disturbed for slight cause, otherwise property can not be expected to bring its value at such sales.(^) (i) Conover vs. Musgrave, 68 111., 58. Note. The question often arises as to how far courts of equity have jurisdiction to order rales of tiie laud of minors for the same purposes contemplated by the statute herein referred io, and has been the subject of some discus.iiou. lu a receut ca8e,(l) following Smith va. Sackel, 5 Ollm., 534, the supreme court of Illinois, hold, that a court of chancery, under its general pow- ers over the estates of infants, lunatics or distracted persons, has jurisdiction to order the sale of the land of such persons for their support, upon appUcatiou ma■ , Foreclosure. CD. J And now comes , special commissioner, appointed by this court in said cause, and files his report in court of said sale, made in said cause, and the court being sufficiently advised of and concerning the same, it is ordered, adjudged and decreed, by this court, that said report be in all things confirmed and approved, and this cause continued. 6. Remarks. — The moi-ti^a;^e provided for in the foregoing statute, as well as that pjrniitteil to executors by the statute,(') are purely statutory, and to be elfjctual against the devisee or ward, all the proceedings must be in strict conformity to the statutes under whose authority they are made. Any ra iterial departure from the conditions made essential, will render the mortgage void,(^) and covenants entered into by the guardian in such a mortgage, purporting to be made in his official capacity, are void, unless such covenants contain an express undertaking on the part of the guard- ian. In which case the guardian only is bound.(^) (i) Kurd's R. S., Chap. 3, ? 119. (3) Webster vs. Conley, 46 III., 14; (2) Merritt vs. Simpson, 41 111., 391. Ante page, iSS. 330 MORTGAGING, ETC., REAL ESTATE OF WARD. [CH. VITI. ADDITIONAL NOTES. 1. Defenses accorded to the ward on foreclosure. 2. Bill of review by a ward in respect to an order mortgaging the ward's land. 3. Mortgaging ward's real estate — Duty of guardian with respect to interests. 1. Defenses ACCORDED ward on foreclosure. — On a pro- ceedina; in the countv court to foreclose a mortirJiire a'iven hv a guardian on his ward's lands, the guardian and the ward are botli necessary parties ; and any sale made on a decree of foreclosure may, at any time before confirmation, be set aside for good cause shown, and will not be binding on the guardian or ward until confirmed by the court. In such a suit the w;ird may have the entire proceeding, including the authority to give the mortgage, reviewed by thecourt.(') 2. Bill of review by ward, etc. — A ward may, before a bill is filed to foreclose a mortgage given by his guardian, maintain ;i bill of review, to review the order granted by the county court, authorizing the guardian to moitgage his lands, and thereby take advantage of every objection that might be allowed on writ of error, if one were allowed. (^^) 3. Mortgaging ward's real estate — duty of guardian. — The probate court may, where it becomes necessary to protect the ward's estate, empower the guardian to mortgage the real estate of the ward. And where he does so, it is his duty to pay interest as it falls due.(^) Borrowing money to improve ward's estate is a proper purj)ose to authorize the guardian to procure a loan.(*) There- can be no strict foreclosure against the ward ; the right of foreclosure is implied, even though not mentioned in the mortgage. (^j Upon a bill filed to foreclose a mortgage given to secure a note made by the guardian of a minor, and payable to his successor on a (i) Kingsbury vs. Sperry, 119 111., 279; Kingsbury vs. Powers, 131 III., 182; Kingman vs. Harmon, 32 111. Ap., 529. (2) Kingsbury vs. Sperry, supra. (3) Kingsbury vs. Powers, supra. (4) U. S. Mortgage Co. vs. Sperry, 13S U. S., 313. (5) rb. CH. viir.^ ,M()i;T(;AGiN(i, r-rrc, uhai^ estate of ward. 331 promise by the latter to credit the giiardiaDship account of ihe maker and to procure an order from the county court to tiiaf elfect, it is hid: That an answer setting up said promise, a failure of j)erform- ance, and the' i)endency of a suit against the maker for the entire balance of said guardianship account, was pertinent; that the promise of the payee did not bind him porsoually or as guardian, the note l)eing void for want of consideration. (') (i) DeLand vs. Metzger, 21 111. Ap., 89. 332 NON-RESIDENT GUARDIANS, [CH. IX. CHAPTER IX. NON-RESIDENT GUARDIANS. 1. Non-resident guardians— power to collect. 2. Transfer of estate to non-resident guardians. 3. Conditions. 4. Manner of procedure — forms. 5. Rules governing non-resident guardians. 1. Non-resident guardians — power to collect. — When there is no guardian in the state of a non-resident minor, his guard- ian appointed and qualified according to the law of the place where the minor resides, having first obtained the authority of the county- court of the county in this state where any of the personal estate of such minor may be, so to do, may collect, by suit or otherwise, receive and remove to such place of residence of the minor, any personal estate of such minor.(^j 2. Transfer of estate to non-resident guardians. — When there is a guardian in this state of a non-resident minor, the court may authorize such guardian to pay over and transfer the whole or any part of the ward's property to the non-resident guard- ian of such ward, appointed and qualified according to the law of the place where the ward resides, upon such terms as shall be proper in the premises, requiring receipts to be passed ; and when the whole estate in the hands of the resident guardian shall be so trans- ferred, may discharge ]iim.(^) 3. Conditions. — But the court shall not grant the authority mentioned in sections forty-four and forty-five, except upon petition of such foreign guardian, signed by him and verified by his affida- vit, and unless he shall file with the court properly authenticated copies of his letters of guardianship and bond, with security in double the amount of the value of the property and estate sought, which shall have been executed and filed in the court which ap- pointed such guardian. An^ unless it shall appear to the court, (i) Hurds R. S., Chap. 64, I 44- (2) Kurd's R. .S.. Chap. 64, I 45- CH. IX ] NON-RESIDEXT GUARDIANS. 333 that a removal of such estate will not conflict with the interest of the Avard or the terms of limitation attending the right by wiiich the ward owns the same, or the rights of creditors, the resident guardian shall have ten days' previous notice of such application.(^) 4. PROCEEDINGS TO TRANSFER ESTATE, ETC. In Order tO transfer property held by a resident guardian into the hands of a non-resident guardian, it is necessary that such non-resident guard- ian shall be appointed and qualified according to the law of the })lace where the ward resides. We give below the record of such an appointment made in the State of Texas, as an example : The State of Texas,) Collin County, / ' Be it remembered, that there was begun and holden at the court house in the city of McKinney, on Monday, May 21st, 1877 (it being the 3rd Monday), a regular term of the county court of ColHn county, for civil and probate business. Present and presiding : Hon. T. C. Goodner, County Judge, W. W. Merritt, SherifiF, and J. M. Burge, Clerk, When the following proceedings were had, to-wit : John Havill ] vs. V John F. Havill. J Monday, May 19th, 1877. Now^, on this day comes on to be heard the application of John Havill to be appointed guardian of the person and estate of John F. Havill, a minor, and it appearing to the court, that notice of the same has been given accord- ing to law: It is ordered, that said prayer be granted and that letters of guardianship issue to him, upon his filing a bond with good and approved security, in the sum of twelve hundred dollars, and taking the oath as the law requires. BOND. The State of Texas, "| Collin County, J ss. Know all men by these presents, that we, John Havill as principal, and T. W. Garrett, W. C. Stanford and J. W. Williams as sureties, are held and firmly bound unto the County Judge of Collin county, and his suc- cessors in office, in the sum of tweive hundred dollars, for t-he payment of which well and truly to be made, we bind ourselves, our heirs, executorii and administrators. Signed and dated May 21st, A. D. 1877. The condition of this obligation is such, that whereas, the above bound (i) Hurd's R. S., Chap. 64, ? 46 21 334 NON-RESIDENT GUARDIANS. [CH. IX. en John Havill has been appointed by the County Judge of Collin county, guardian of the person and estate of John F. Havill, a minor of said county. Now, should the said John Havill faithfully discharge the duties of guardian of the person and estate of such minor according to law, then this obligation to be void. John Havill, T. W. Garrett, W. C. Stanford, J. W. Williams. Approved, May 21st, A. D. 1877. T. C. GooDNER, County Judge. OATH OF OFFICE. I, John Havill, do solemnly swear that I will faithfully discharge and perform all the duties as guardian of the person and estate of John F. Havill, a minor, according to law, to the best of my skill and knowledge. John Havill. Sworn to before me, May 21st, A. D. 1877. J. M. BuRGE, County Clerk, Collin County, Texas. The State of Texas, (^ CERTIFICATE OF CLERK AS TO PROCEEDINGS. Collin County, j" I, J. M. Burge, Clerk of the county court of Collin county, Texas, do hereby certify that the above and foregoing is a true copy of all proceedings had in the matter of John F. Havill, a minor, as appears of record and on file in my office. [Seal] Witness may hand and seal of office, this June 15th, A. D. 1877. J. M. Burge, Clerk. CERTIFICATE OF THE COUNTY JUDGE AS TO CLERK. The State of Texas, "I Collin County, / ' I, T. C. Goodner, Judge of the county court of said county, do hereby certify that J. M. Burge, whose genuine signature is affixed to the above certificate, is now, and was at the above date thereof, the duly elected clerk of said court, qualified and commissioned, according to law. That said certificate is in due form of law, and that his official acts are entitled to full faith and credit. In witness whereof, I have hereunto set my hand officially at office in McKinney, this June 15th, A. D. 1877. T. C. Goodner, Judge County Court, Collin County, Te.xas. One of the conditions required of the foreign guardian under Section 3 above, is that he file a petition, signed by him, verified by his affidavit, togetlier with certified copies of his letters of guard- CH. IX.] NON-RESIDENT GUARDIANS. 335 iansliip and bond, with security in double the amount of the value of the pro[>crty and estate sought, which shall have been executed and filed in the court which appointed the guardian. In Texas, a certified copy of the appointment of guardian and bond, constitute and are the only letters of guardianship required by the laws of that state. The petition required under Sections 1 and 2 above, are similar in form, and the non-resident guardian, having first filed an authen- ticated copy of his appointment, and obtained an order to have the same recorded and placed on file, may file his petition, which may be in form as follows : State of Illinois, "I In the County Court, County. / •^* To the term, A. D. i^... To the Hon .Judge of the County Court of County, in the State of Illinois : Your petitioner, John Havill, a resident of the county of Collin, and State of Te.xas, by , his attorney, would respectfully represent and show unto your honor, that John F. Havill is a minor, aged. ..years on the-. .day of. , A. D. i8.-., and resides in the said county of Collin, and State afore- said. That your petitioner has been duly appointed guardian of said minor by the county court of said Collin county, both of the person and property of the said minor aforesaid. A certified copy of the same being now on file in this honorable court, duly recorded, reference being had thereto for greater certainty. And your petitioner would further show unto your honor, that said minor has an estate coming to him from one , who is the guard- ian legally appointed by this honorable court, for the said John F. Havill, as will more fully appear by his appointment, a record of the same being now on file in this honorable court, in book "C," page 22, Record of Guardians. And your petitioner would further show, that at the last settlement made with this court by the said guardian aforesaid, there was in the hands of said guardian belonging to said minor, the sum of I500, which said settle- ment bears date. ..day of. , A. D. 18, and is on file in this court. And your petitioner having fully complied with the laws of the said State of Te.xas, and having filed authenticated copies of his letters of guard- ianship and bond, with security in the sum of twelve hundred dollars, a certified copy of which said letters and bond he herewith files, marked ex- hibit "A," prays that a citation may issue to the said , guardian as aforesaid, commanding him to be and appear before this honorable court at its next term, to be held at the court house in , on the. ..day of , A. D. 18... And your petitioner prays that on a final hearing hereof, your honor will cause to be entered an order of record, authorizing the said , 336 NON-RESIDENT GUARDIANS. [CH. TX. guardian aforesaid, to pay over to and deliver up, and transfer the property aforesaid to your petitioner, upon liis giving liim a receipt therefor, according to the statute in such case made and provided, and your peti- tioner, as in duty bound, will ever pray, etc. By , his Attorney. John Havill. ss. State of Texas, \ Collin County, J John Havill, whose genuine signature appears to the foregoing petition, personally appeared before me, and having heard the same read over, states upon oath that all the facts set forth in said petition, are true in substance and in fact. John Havill. Subscribed and sworn to before me, this 15th day of , A. D. 18... J. M. BuRGE, Clerk County Court, Collin County, Texas. [Add certified copy of appointment as exhibit " yi.".] Uuless it shall appear to the court, that a removal of the estate will uot conflict with the interest of the ward, or the terms of limi- tation attending the right by which the ward owns the same, or the rights of creditors, and the resident guardian has had the ten days' notice required, the petition should be refused ; if, however, the conditions imposed in Section 3, shall have all been obviated, the guardian will be entitled to a decree, which may be in form as follows: In the Matter of the Guardianship of , minor. State of Illinois, \ County. J And now, on this day, the same being the. ..judicial day of the present term of this court, comes the said , by , his attorney, comes also, the said , by , his attorney, and it appearing from the return of the officer, that due notice has been given to the defendant , of this proceeding, by service made by the sheriff of county, Illinois, on the... day of , A. D. 18..., and this cause coming on now to be heard upon the petition of the said , petitioner, and the answer of the said , de- fendant, and the replication of the said thereto, and the exhibits, files and oral proofs, and the court being sufficiently advised and satisfied in the premises, finds, that all the allegations of the said petitioner's petition, are true as therein stated, and doth order and adjudge, that the said , res- ident guardian of county, Illinois, pay over and transfer to John Havill, guardian of Jolm F. Havill, of Collin county, in the State of Texas, the sum of I512, the amount found due in the hands uf the said , resident guardian, and that he take his receipt therefor. And it is further ordered, that the said John Havill, guardian as afore- said, pay the costs o. this proceeding. CH. IX.] NON-RESIDENT GUARDIANS. 337 5. Rules governing non-resident guardians. — The power of a guardian is local to the state in which he receives his appoint- ment. He is competent, however, upon proof of his guardianship, to receive the jiroperty or the custody of the ward, when placed in his hands, by the courts of another state, to be taken to the state where either or both belong, and in which he received his ap- pointment.(^) And a court of chancery will order the funds of an infant under its control to be paid to a guardian appointed, and residing in an- other state.(^) The transcript, which a foreign guardian, making application for the removal of his ward's property, is required to produce, must not only show that he has given bond with security for the perform- ance of his trust, but must set out a copy of it, in order that the court authorizing the removal, may see that it is suffioient to pro- tect the ward's estate.(^) Where one acting in the capacity of a guardian of minors, but not by appointment of any court, came into the possession of their property in another state and removed to Illinois, where he died, his administrator was held to account in a court of equity, as if the deceased had been in fact tha guardian of such minors. (*) (i) Warren vs. Hofer, 13 Ind., 167; Martin vs. McDonald, 14 B. Mon., (Ky.) 544; Swayzee vs. Miller, 17 E. Mon., (Ky.) 564. (2) Ex Parte Smith, i Hill, S. C. Ch., 140 ; Ex Parte Heard, 2 Hill, S C. Ch., 54; Ex Parte Baker Andrews, 3 Hump., ( lenn.J 592. (3) Carlile vs. Tiittle, 30 Ala., 613. (4) Davis vs. Harkwfc^A; 1 Gilni., 173. 338 NON-RESIDENT GUARDIANS. [CH, IX. ADDITIONAL NOTES. I. A foreign guardian has a rigiit to take steps to collect his ward's money. 1. Foreign guardian has a right to collect his ward'^ MONEY. — A foreign guardian will have the right to compel the cita- tion of a former resident guardian who has failed to make settlement or account to his ward. Nor is it necessary to obtain an order first for that purpose. It is sufficient if s ich order be obtained to collect the money due to his ward before he institutes suit. Where suit is instituted on the guardian's bond, the amount found due on citation, which was afterward appealed from, and judgment by consent ren- dered in ilie circuit court, affirming the amount found due by the county court, such aniount is conclusive in any action brought on the guardian's bond.(') A foreign guardian has no authority over the person or property of the ward in another state, except by the comity of the latter. (2) (i) McCleary vs. Menke, 109 111., 294. (2) Lamar vs. Micou, 112 U. S., 452. OH. X.] RESIGNATION OF GUARDIANS. 339 CHAPTER X. RESIGNATION OF GUARDIANS. 1. Resignation of guardians— forms. 2. Rules. 1. Resignation of guardians. — When it shall appear proper, tlie court may permit the guardian to resign his trust, if he first settles his accounts and delivers over the estate as by the court directed.(^) A guardian having fully settled and discharged his duty, may file his petition to resign, and for good reasons shown, it is the duty of the court to accept it, and relieve him from any further burden, upon his filing the receipt of his successor in office. The petition may be in form as follows : State of Illinois,) In the Coimty Court, County. / • To the term, A. £>. i8... In the Matter of tiie Guardianship of. To the Hon , Judge of the Coimty Court of said County: Your petitioner, , by appointment of this court, made on the... day of , A. D. i8..., guardian of the person and estate of. , and minor heirs of , late of said county, deceased, would respectfully rep- resent and show unto your honor: That your petitioner at, to-wit: the term, A. D. iS-—, filed his settlement as guardian aforesaid, which said set- tlement was approved by the court, and he hereby tenders his resignation as guardian aforesaid, and prays the court to accept the same. And your petitioner assigns as a reason for his said resignation, that he desires to remove from the State of Illinois, and without the jurisdiction of this court, and that it will be impossible for him longer to look after and care for the interests of his said wards. Your petitioner therefore prays that he may be finally discharged from his said trust, upon filing the receipt of his successor in office, of the amount ascertained to be due from him on settlement made and approved as aforesaid. And your petitioner will ever pruy, etc. By , his Attorney. (i) Hurd's R. S., Chap. 64, I 39. 340 RESIGNATION OF GUARDIANS, [CH. X. State of Illinois,) County. J ' , the above named petitioner, states on oath, that he has heard the foregoing petition read over, and that the matters and things therein stated, are true and correct. Subscribed and swam to before me, this. ..day of- , A. D. i8... J Clerk County Court The guardian may also tender his resignation in the settlement hied with the court, and it is usual to simply insert at the close of the settlement filed for approval, the words : "And the said , guardian as aforesaid, having filed this, his settlement, respectfully asks the approval of the same, and hereby tenders his resignation of the office of guardian, and prays the court to accept the same ; and that he may be discharged upon filing the receipt of his suc- cessor in office. And your petitioner assigns as a reason for so asking to resign his trust as aforesaid. That he is old and unable longer to attend properlyjto the duties of his said office, being now above the age of seventy, and hence asks to be relieved from said trust. And your petitioner, as he is in duty bound, will ever pray, etc." Upon the filing, presenting and acceptance of the petition by the court, the clerk shall enter an order, which may be in form as follows : State of Illinois, \^^ County, i In the Matter of the Guardianship of. , Guardian of. , minor heirs of. , deceased. And now, on this day, the same being the.. -judicial day of the present term of this court, comes the said , by appointment of this court guard- ian of. , minor heirs of. , late of. county, deceased, by , his attorney, and presents his petition for resignation of said trust ; and the court having considered thereof, and being now sufficiently advised and satisfied concerning the same, orders that said resignation be accepted, and that said be discharged from said trust upon the filing of the receipt of his successor in office for the amount found due in his hands on final settlement made and approved by the court at its present term. And now, to-wit : it being t!ie....judicial day of the present term, comes again the said , by , his attorney, and files herewith the receipt of. , by appointment of this court, guardian of the person and estate of. , minor heirs of , deceased, and the successor in office to the said , for the sum of dollars, in full of the amount found due in his C:H. X ] RESIGNATION OF GUARDIANS. 341 hands by the court, at his settlement at the present term of this court, which said receipt is ordered filed, approved and credited, and said guardian finally discharged from further service in and about said trust. 2. Rules. — The validity of the revocation of letters of guard- ianship, and the appointment of another guardian, can not be col- laterally called in question. (^) His resignation will not be accepted by the court, and he be discharged from his trust, on his own petition, unless for good reasons shown. (^) (i) Yonnc;- vs. T.orain, ii 111., 624. (2) Ex Parte Crumb,, 2 Johns. Ch., (N. Y.) 439. 342 REMOVAL OF GUARDIANS. [CH. XI. CHAPTER XI. Rp]MOVAL OF GUARDIANS. 1. Power of court. 2. Notice to guardian — petition, etc. 3. Successor in office. 4. Rules governing the removal of guardians. 5. Appeals. 1. Power of court.— ^-The county court may remove a guard- ian for his failure to give bond or security, or additional or counter security, when required, or for failure to make inventory, or to account and make settlement, or support or educate the ward, or when he shall have become insane, or have removed out of the state, or become incapable or unsuitable for the discharge of his duties, or for failure to discharge any duty required of him by law or the order of the court, or for other good cause.(^) 2. Notice to guardian. — Before removing a guardian, the court shall summon him to show cause why he should not be re- moved for the cause alleged. If the guardian has left the state, or can not be served with process, he may be notified in the same manner as non-resident defendants in chancery. (*) The petition for the removal of a guardian may be in form as follows : State of Illinois, "( /// the Coinifv Court, County. / ^^- To tlie tenn, A. D. 18.... To the Hon , Judge of the County Court: Your petitioner , of the county of , and State of Illinois, by , his attorney, would respectfully represent and show unto your honor, that on to-vvit: the. ...day of , A. D. 18...., one was appointed by this hon- orable court guardian of , a minor, aged....years, as will more fully ap- pear by reference to the records of said appointment now on file in this court. Yout petitioner would further show, that he is a brother of said minor, and that he is desirous of watching the interest of his estate ; and that the said guardian aforesaid since his said appointment, has wholly mismanaged the estate df his said ward, in this : That he has failed to file an inventory (i) Kurd's R. S., Chap. 64, 1 37. (2) Kurd's R. S., Chap. 64, I 38. CH. XI.] REMOVAL OF GIIARDTANS. 343 of the estate of said ward ; and ha-.; converted a pn of the estate of said ward to his own use ; and has wholly failed to give additional or counter security, although required to do so, by an order of this honorable court, made and entered of record at its term, A. D. i8...., and has, in other and many respects, mismanaged the estate of his said ward. Your petitioner, therefore, prays that a summons may issue against the said and that he may be cited to be and appear before this honorable court, at the term thereof, to show cause, if any he has, why he should not be removed ; and upon a final hearing hereof, in case of the failure of the said.... to justify or show cause why he should not be removed, your petitioner prays that he maybe removed, and his letters revoked, and the guardianship of said minors be committed to some other person. And your petitioner will ever pray, etc. By , Attorney. Dated this-.-day of. , A. D. 18.... State of Illinois, County. ss. being duly sworn, states, that he has heard the foregoing petition read and knows the contents thereof, and that the same is true in substance and in fact. Su'-scribed and sworn to before me, this-. -day of. , A. D. 18... , Clerk. Upon filing the petition, it is the duty of the clerk to issue a summons or citation, which may be in form as follows : ss. State of Illinois, ") County, / T/ie People of the State of Illinois, to the Sheriff of said County, Greeting : Whereas, it has been represented to the county court of said county, by petition of. , that , guardian of. , minor, has been guilty of mismanaging and wasting the estate of his ward, and has failed to file an inventory of his said ward's estate, and to give additional or counter secu- rity as required by the court : You are therefore commanded to summon the sa'd to be and appear before the county court of. county, Illi- nois, on the. ...day of. , A. D. 18...., at the court house in , Illinois, and show cause why, if any he has, his letters of guardianship should not be revoked, and he be removed from his office of guardianship of. Witness, , clerk of the county court of. county, Illinois, and the seal thereof, at his office, in , in said county, this. ...day of. , A. D. 18.... , Clerk of the County Court. The clerk should deliver the citation to the sheriff, whose duty it is to see that the same is served within a reasonable time before the court convenes. 344 REMOVAL OF GUARDIANS. [CH. XI. The return of the officer may be in form as follows : State of Illinois,) County, j ■ I have duly served the foregoing summons by reading and delivering a true copy of the same to , as I am therein commanded. This-. day of. , A. D. iS , Sheriff. On the day of the return, if service be had or due notice given, the court will proceed to hear and determine the petition. In case the allegations are not true, the same will be dismissed at the costs of the petitioner filing the same. If, however, the court be satis- fied sufficient cause exist for the removal of the guardian, it will cause an order to be so entered of record. The order may be in form as follows : State of Illinois, \ In the County Cojirt, County, J • term, A. D. i8.... Present: Hon , Judge. Attest: , Clerk. In the matter of the Guardianship \ of , minor heir of , \ Removal of Guardian. deceased. J And now, on tliis day, the same being the. ...judicial day of the present term of this court, comes the said , by his attorney, , comes also, the said by , his attorney, and the said having filed his answer herein, denying each and every allegation of said petition, and the said having filed his replication thereto, and this cause coming on now to be heard, and the court having heard all the testimony adduced and the argument of counsel, and having considered thereof, and being satisfied in the premises, finds each and every allegation of said petition true, as stated in said petition, viz. : \^Here set out the facts.'] The court doth there- fore order, adjudge and decree: That said letters of guardianship issued to said , be revoked ; and that said guardian's accounts be closed ; and that he forthwith render to this court, a full settlement of said guardianship, and that upon the same being approved, he pay and deliver over to his successor in office, all of the estate of the said , now remaining undis- posed of in his hands, and exhibit his receipt therefor. That said shall fully comply with this order and decree of the court at its present term, and in default thereof, he stand committed as in contempt of court. 3. Successor in office. — Upon the removal, resignation or death of a guardian, another may be appointed, who shall give bond and security and perform the duties prescribed by this act. ni. XI ] REMOVAL OF GUARDIANS. 345 And the court sliall have power to compel tlie guardian so removed or resigned, or the executor or administrator of a deceased guard- ian, or the conservator of an insane ])erson, or other person, to deliver up to such successor, ail tlie goods, cliattels, moneys, title papers, and other effects in his custody or control, belonging to such minor; and upon failure to so deliver the same, to commit the person offending to jail, until he shall comply with the order of the court.(^) 4. EULES GOVERNING THE REMOVAL OF GUARDIANS. The court of probate has power to remove the guardian for good and sufficient reasons. (^) The proper proceeding for the removal of a guardian, is by peti- tion.(^) Where the removal is sought on the ground of the '' noto- riously bad conduct of the guardian," the petition should allege particular facts of which the defendant was guilty, in order to enable the court to determine whether such facts constituted notoriously bad c(mduct.(*) Conduct of a guardian tending to alienate the affection of his infant ward from its mother, who is a person of good charac- ter, is a sufficient cause for his removal from the trust.(^) He may be removed for misconduct in investing the funds of his ward ;(^) and for his failure to file his inv^entory, verified by oath, of the real and personal estate of his ward, within the time required by law.(^) The removal of a guardian beyond the limits of the state, is a sufficient reason for severing the relation of guardian and ward, and revoking the appointmant.(^) Whore he acts corruptly and collusively, to defraud his wards, it will not only justify his re- moval, but damages will be awarded against him, on proof of the damages sustained by his fraudulent conduct.^'*) (i) Kurd's R. S., Chap. 64, ? 40. (2) Young vs. Lorain, 11 111., 624; Pickens vs. Clayton, 7 Blackf., (Ind.) 321 ; Simpson vs. Gonzales, 15 Fla., 9. (3) Uisbrow vs. Henshavv, 8 Cow., (N.Y.) 349. (4) Edwards vs. Morrow, 12 La. Ann., 887; VViiitney vs. Wiiitney, 15 Miss., 740; (7 Smedes & Marsiiall.) (5) Perkins vs. Finnegan, 105 Mass., 501. (6) O'Neil's Case, 1 Tuck., (i N. Y. Surr.) 34. (7) Ilarnes vs. Powers, 12 Ind., 341; Kiinniel vs. Kiinmel, 48 Ind., 203. (8) Eiland vs. Chandler, 8 Ala., 781; Sp.iight vs. Knight, 11 Ala., 461 ; Cockrell vs. Cockrell, 36 Ala., 673; Nettlctou vs. State, 13 Ind., 159; Cooke vs. Beale, 11 Ired. (N. C.) Eq., 36. (9) Marks vs. Whitkouski, 16 La. Ann., 341. 346 REMOVAL OF GUARDIANS. [cH. XI. His insolvency, together with the insolvency of one of his sure- tics, is a sufficient cause for his removal, (^j unless upou notice he files a sufficient bond. Ignorance or imprudence on the part of the guardian, resulting in the injury of his ward's estate ;(^) drunkenness ;(') abandonment of the trust ;('') in fact, where the county court deems it best for the interest of the ward, it has authority to displace the guardian. (^) A large discretion is necessarily left to the courts having original jurisdiction, of removing guardians, for a breach of their duties, and their decision will not be interfered with, unless their discretion has been grossly abused. (^) A father, who was guardian for his children, and received an annual income from their estate of $2,000, and who, for a period of several years, refused to sup[)ort and educate them, was removed, as being a person unsuitable to have the care and management of their person and estate.C') It is no ground for the removal of a guardian, that he has re- tained the funds of his ward, instead of investing them, admitting his liability for interest.(^) Letters of guardianship create a trust coupled with an interest, aud where one of two guardians dies, or is removed, the trust sur- vives or remains to the other. (^) A guardian can uot be removed without notice or a citation to show cause.(^'') Where his authority is revoked, he is required by his bond to pay over the money in his hands to the person appointed to re- ceive it.(") It has been held, that where a guardian is removed, that he can not claim compensation for his services. ^^^) (i) Matter of Cooper, 2 Paige, (N. Y.) 34. (2) Nicholson's Appeal, 20 Penn. St., 50. (3) Kettletas vs. Gardner, i Paige, 4S8. (4) Lefever vs. Lefever, 6 Md., 472. (5) Ej^ Parte Crutchfield, 3 Yerg., (Tenn.) 336. (6) Young vs. Young, 5 Ind., 513; Nicholson's Appeal, supra. (7) In the Matter of Swifyts, 47 Cal., 629. (8j Sweet vs. Sweet, Spears (S. C.) Ch., 309. (9) Pepper vs. Stone, 10 Vt., 427. do) Montgomery vs. Smith, 3 Dana, (Ky.) 599; Eddv vs. People, 15 111., 3S6; Dibble vs. Dibble, 8 Ind., 307. (11) United States vs. Nichols, 4 Cranch., Cir. Ct., 191. (i2j Trimble vs. Dodd, 2 Tenn. Ch., 500. CH Xr.] RRMOVAL OF GUARDIANS. 347 Wliere tlie court removes a [guardian, the order sliould state tlie grounds on wliich tlie court j)r()ceeded.(^) The guardianship may be also determined by the majority of the wards, which in males, is twenty-one years, and I'emales, eighteen. And the ward, wIil'u he arrives at the agt; ol" Ibnrtccn, may determine the guardian.ship, by his election and selection of another guard ian.(^) The guardianship may also be determined by the death of the ward and by the death of the guard ian.(^) The marriage of a female ward terminates the guardianship, as to her person ; it is otherwise of the marriage of a male ward.(*) 5. Appeals. — Appeals shall be allowed to the circuit court from any order or judgment made or rendered under this act, upon the appellant giving such bond and security as shall be directed by the court; but no appeal from an order removing a guardian, shall in any wise affect such order, until the same be reversed.(^) (i) Pepper vs. Stone, lo Vt., 427. ^2) Dibble vs. Dibble, 8 Ind., 307. (3) Johnson vs. Carter, 16 Mass., 443. (4) P>ricks' Estate, 15 Abb., (N. Y.) Pr., 12; Holmes vs. Field, 12 111., 424; Shutt vs. Carloss, i Ired.(N. C ) Eq., 232; Burr vs. Wilson, 18X0x33,367. (5) Kurd's R. S., Chap. 64, § 43. 348 RIGHTS AND LIABILITIES OF SURETIES. [CII. XII. CHAPTER XII. RIGHTS AND LIABILITIES OF SURETIES OX GUARDIANS' BONDS 1. Defenses to suits upon guardians' bonds. 2. Counter security— petition— order of court. 3. Proceedings under the order. 1. Liability of the surety. — Sureties of a gnai-dlan can not set up in defense, during the ward's minority, th:it the guardian and ward have together, and with the consent of the ward, squan- dered the estate. A ward can not, during minority, give a consent whicli will excuse a misappropriation. (^) Tiie estate of a surety upon a guardian's bond, is liable for a default whicli occurred subsequent to the death of the surety. (^) While a decree rendered against a guardian on tinal acx30unt, is conclusive against him, it is not so against a surety not a party to that suit, and he may show, wheu sued, that the guardian failed to charo-e his wards with boarding, tuition or commissions, or that he made improper charges in their favor against himself.(^) A final settlement made by a guardian, with tiie court, showing the amount of his indebtedness to the wards, is conclusive alike on the guardian and his sureties, unless they can impeach it for fraud or collusion. *j Where a ward, after the death and distribution of the estate of a surety on the guardian's bond, obtains a decree against the guard- ian, up()n which execution is issued and returned no property found, a court of equity will entertain jurisdiction of a bill filed by the ward a<>-ainst personal and legal representatives of the decea-sed surety, to enforce satisfaction of the demand, (^) If the estate of the guardian of a minor is insolvent and his sureties irresponsible, it is not necessary for the ward to institute proceedings at law before he can file a bill in equity to recover such part of tlie estate as he can trace. ^®y AVhere several bonds, with dilFerent sets of sureties have (i) judge of Probate vs. Cook, 57 N. H., 450. (2) Voris vs. State, 47 Ind., 345. (3) State vs. Hall, 53 Miss., 626. (4) Chilton vs. Parks, 15 Ala., 671 ; Meyer vs. Rives, 11 Ala., 769; Am- nions vs. Peoole, 11 111., 6; Ralston vs. Wood, 15 111., 159; Stone vs. Wood, i5 111.. 177; Gilbertvs. Guptil, 34 111., 140; Ream vs. Lynch, 7 Bradvvell, 161. (5) Moore vs. Wallis, 18 Ala., 458. (6) Hill vs. Mclntire, 39 N. H., 410. CH. :xir ] RIGHTS and i.iahilitieh of suretiks. 349 been given by a guardian, so long as the principal is confessedly solvent, the remedy at law on the bonds is ample, notwithstanding the different liabilities of the sureties.(^) Bonds that are void at law, are sometimes enforceable in cqulty.(^) Where an order of the court directed that the guardian give bond in a certain sum, and give for security certain pc^rsons, and the bond was executed in such a form as to be void, upon the ward becoming of age, a bill was filed, and the bond was corrected as against the surety.(^) So, too, where the bond was void at law, on the ground that the sureties were justices of the county, and were, therefore, both obligors and obligees, the bond was enforced in equity.(*) It is not necessary before an action can be maintained at law, upon a guardian's bond, that the accounts must have been adjasted, and a specific sum decreed to be paid over.(^) Until the removal of a guardian from his trust, the statute does not authorize a suit by his infant wards on his bond for the recovery of money in his hands ;(®) for, whilst the relation of guardian and ward subsists, an action can not be maintained against a guarditm or his sureties, on his official bond.(^) Where an administrator becomes guardian to a minor interested in the estate, he must do some act in his hands, as administrator, in order to charge himself and sureties under the guardian's bond, such as passing an account charging himself as guardian. (^) But, where a person sustains the dual relation or trust of admin- istrator and guardian, he will be chargeable as guardian, if the estate is virtually settled up, and a reasonable time has elapsed for settling, and he has charged himself in a private book with the fimds belonofino; to the heir who is the sole distributee, his sureties as administrator will be released, and his sureties as guardian will be liable for the funds which came into his hands in the capacity (i) McDougald vs. Maddox, 17 Ga., 52. (2) Butler vs. Durham, 3 Ired. (N. C.) Eq., 589. (3; Armistead vs. Bozman, i Ired. (N. C.) Eq., 117. (4) Butler vs. Durham, supra. (5) State vs. Stran,a:e, i Ind., 538; Stillwell vs. Mills, 19 Johns., (N. Y.'. 304; Barrrett vs. Munroe, 4 Dev. & B. (N. C.) L., 194; VVann vs. People', 57 111., 202; Mclntyre vs. People, 103 111., 142. (6) El^' vs. Hawkins, 15 Ind., 230. (7) Er.md vs. Chandler, 8 Ala., 781. (8) Burton vs. Tunnell, 4 Harr., (Del.) 424. 22 350 RIGHTS AND LIABILITIES OF SURETIES. [CII. XII. of administrator. An order of the county court transferring the funds in his hands as administrator, is not indispensable in such case to charge the sureties on the guardian's bond.(^) Ui)on the death of the principal in a guardian's bond, the trust is thereby terminated, and the sureties become liable for the amount of money in the guardian's h\nds, belonging to the ward at tlic time of his death, and it is not necessary that the ward should first resort to a suit against the legal representatives of the guardian ;(*; for, an action will lie upon the bond of a guardian, against the surety, witliout any previous suit against the principa].(^) Where a guardian neglects to accjunt, a citation from the judge of probate requiring him to render his account, is a necessary pre- liminary, in order to charge the guardian on his bond for refusing to account.C) An action on a guardian's bond for a failure to pay over money to a subsequently ajipointed guardian, can not be sustained, if tiie declaration fails to allege the due appointment of the plaintiif as successor, — as tJie plaintiff shows no right to sue, under the condi- tions in the bond. Mere profert of letters attached to the declara- tion, is no averment of appointment. It is not a sufficient allegation of the breach of the bond, that the guardian had failed to make report to the court when thereunto required, without further alleging that the guardian was required by the court to make such report. (^) 2. Counter security. — Upon the application of the surety of any guardian, and after summoning the guardian, the court may, if it believes him insolveiit or in doubtful circumstances, require him to give counter security to his sureties. (^) The application should be made by petition to the court, and may be in form as follows : State of Illinois, ) In the Countv Court, County, /"• term, -A D. i^.... To the Hon , Judge of said Court : Your petitioners, , would respectfully s!io\v unto your honor, that (i) Bell vs. People, 94 III., 230. (2) State vs. Thorn, 28 Ind., 306. (3) Call vs.Ruffin, i Call, (Va. 1333; Foster vs. IMaxey.G Verg;., (Tenn.) 224. (4I P>ailey vs. Roclo;ers, i Me., (i Greenlf.) 186. (5) People vs. Steele, 7 Bradvvell, 20. (6) Kurd's R. S., Chap. 64, g 36. CH. XII.] RIGHTS AND LIABILITIES OF SURKTrKS. 351 on or about the—day of- , A. D. 18..., they became the sureties of one on his bond as guardian of. , minor heir of. , deceased ; which said bond was afterwards approved and accepted by this honorable court as the official bond of the said , guardian as aforesaid, and still remains on file in the office of the clerk of this honorable court, and in full force and effect. Your petitioners furtiier show unto your honor, that since the said bond was accepted and approved by the court as aforesaid, the said has, as your petitioners are informed and believe, become insolvent ; that he is in doubtful circumstances, and your petitioners have cause to fear, and do fear, that they will suffer loss as sureties on the bond of the said , guardian as aforesaid. Yourpetitioners, therefore, pray that the said may be summoned to appear before this honorable court at the....term thereof, to be holden the-... day of , A. D. 18 And your petitioners pray that on a final hearing of tliis petition, the said may be required to give to your petitioners, counter security as surety on said guardian's bond, according to the form of the statute in such case made and provided, and that your petitioners may have such other and furtiier relief in the premises as the nature of their case may require. And your petitioners will ever pray, etc. By , Attorney. Subscribed and sworn to before me this-. .day of , A. D. 18... A B, Clerk. The order of the court granting tlie prayer of said [)etition, may be as follows : State of Illinois,") /;/ the Coiuiiy Court, County, r Of the term, A. D. iS-.. Present: Hon , Judge. Attest: , Clerk. In the matter of. , Guardian 1 On the ap;)lication of , of , the minor child |- sureties on said guard- of .deceased. J ian's bond for counter security. And now, on this day, come the petitioners, by , attorneys, none appearing for the said , guardian of , and it appearing to the satisfaction of the court that the said , guardian as aforesaid, has been duly served with a summons to answer said petition more than ten days before the first day of the present term of this court : It is ordered that the said , guardian, be called, and he being three times called bj^ the slieriff comes not, but makes default herein. It is ordered, that the petition of said petitioners be taken for confessed by the said guardian ; and this cause coming on to be heard upon said petition taken for confessed, oral proofs heard by the court, and the court having heard all the proofs in sup- port of said petition, and being now sufficiently advised and satisfied in the premises, finds that said guardian is insolvent or in doubtful circumstances: It is ordered and adjudged, that the said , guardian as aforesaid, do, within... days from the date of this order, execute and deliver to the petitioners a good and sufficient bond in the penal sum of.. .dollars, with at least two sureties to be approved by the court, or accepted by the petition- 352 RIGHTS AND LIABILITIES OF SURETIES. [CH. XII. ers, conditioned that the said .guardian as aforesaid, shall save harmless the said petitioners as sureties on the bond of said guardian, or that he give to the petitioners such other counter security as may be agreed upon by the parties and be acceptable to said petitioners. It is further ordered, that the said guardian report his action in the premises to the next term of this court, and that he pay the costs of th's proceeding to be taxed by the clerk, that execution issue therefor, and that this proceeding stand continued for report. 3. Proceedings under the order. — The guardian may give the bond and security name;! in the order, or if he and the petition- ers .should agree upon some other security, such as a pledge or a mortgage, acceptable to the surety, that Avould be a sufficient compli- ance with the order of the court. The bond to be given may be in form as follows: Know all men by these presents : That ,as principal, and , as sureties, are held and firmly bound unto , in the penal sum of.. .dollars, lawful money, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly, severally and firmly by these presents. Sealed with our seals, and dated on this. ..day of , A. D. iS.... The condition of the above obligation is such, that whereas on the....day of. , A. D. i8.-., the above named became one of the sureties of the above bounden on his bond as the guardian of , minor child of deceased, in the penal sum of- dollars; and whereas, the county court of county, in the state of Illinois, at the term thereof, A. D. i8...., by its order made and entered of record, required the above bound- en , guardian as aforesaid, to give to the said , surety on said guardian's bond as aforesaid, counter security, in tiie said sum of. dollars. {^Penalty of the bond.'\ Now, if the above bounden shall so execute and discharge the duties of his said guardianship as to save the said entirely harmless as surety on the bond of said guardian, then this obligation siiall be void, but otherwise shall remain in full force and effect. , [Seal.] Signed, sealed and delivered in , [Seal.] presence of , [Seal.] State of Illinois, l ^ County, ) I , in and for said county and state, do hereby certify that , who are each personally known to me to be the same person;; whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered said in- strument as their free and voluntary act, for the uses and purposes as there- in set forth. Given under my hand and seal, this.. ..day of , A. D. iS... , County Clerk. CH. XII.] RIGHTS AND LIABILITIES OF SURETIES. 353 The report required of the guardian, may be as follows : State of Illinois, 1 In the Cotinty Court, County, ]^^- To the term, A. D. iS.... To the Hon , Judge of said Court: The undersigned, by appointment of this court guardian of the person and property of , minor child... .of , deceased, would respect- fully report unto your honor, that in pursuance of an order of this court, made at its term, A. D. i8...., "In the matter of. petitioners, to re- quire guardian of. , to give counter security," an order was made requiring the undersigned, guardian, as aforesaid, to give to the said counter security, and report herein at the present term of this court. The undersigned would therefore respectfully report that in pursuance o^ said order, he has executed and delivered to the said a bond, with and as sureties, in the penal sum of. dollars, which said bond has been accepted by the as a good and sufficient bond for counter secu- rity, as required by the order of the court aforesaid. The undersigned would further report that he has paid the cost of this proceeding, and prays hence to be discharged. All of which is respectfully submitted for the approval of the court. Dated this....day of. , A. D. i8.... , Attorney. As has been already stated, should the guardian refuse to give such counter security, it will be cause for his removal. (^) A ward can not be prejudiced by an unauthorized alteration made in the bond of his guardian. i^^j (i) Kurd's R. S., Chap. 64, I 2,7- (2j Mclntyre vs. People, 103 111., 142. 354 RIGHTS AND LIAP.ILITIES OF SURETIES. [CH. XII. ADDITIONAL NOTES. 1. Alteration of guardian's bond will not affect ward. 2. Guardian's bond— Action lies on, vviihout first fixino^ guardian's liability. 3. Grounds of liability on a guardian's bond— No devastavit need be established. 4. A release obt^iined by the guardian from the ward under influence. 5. Subrogation— Right of surety. 6. In case of several wards and only one bond, several liability to the wards. 7. A guardian owes his ward a duty, which can be discharged only by the performance of all the conditions of his bond. 8. Citation of a surety. 9. Security may recover fom co-security — When. 10. The iindnig of amount due ward conclusive — When. ] I. A failure to make settlement on arrival of age, a breach of guardian's bond. 1. Alteration of guardian's bond will not affect wa rd. — The adding of another name as security in the body of a guard- dian's bond, and the signing and sealing of such bond by the new surety, under an order of the court requiring additional security, even if unlawful, will not affect the security of the ward in the bond as originally made, or defeat a recovery thereon ; and if lawfully made, the ward may treat the bond as that of all the sureties named in it after its alteration, and may sue any one of such sureties separately. (^) 2. Guardian's bond — action lies on, without first fixing LIABILITY. — Nor will it be necessary, before bringing suit upon the bond, to have the liabilities of the guardian ascertained and fixed; the damages may be ascertained in the suit on the bond.(*) 3. Grounds of liability — need not establish devastavit. — An action will lie on a guardian's bond given prior to the act of 1874, without first establishing a devastavit. A declaration on such bond containing two breaches: First, that the guardian was on a certain day required to account and failed to do so; and, second, that one of the wards became of age on a certain day, etc., and the guardian filled to account and pay over to her a certain sum of (i) Mclntire vs. The I'eople, for the use of Alice Wilkey, 103 111., 142. (2) lb. CH. Xir.] RIGHTS AND I.[ ABILITIES OF .SURETIES. 355 money, whidi \v;i^ duo to the ward, and which the ward was entitled to receive (Voin tlie guardian, but whicli .sum vas converted by tiie guanb'an to hi.s own use, and not paid over by him, is .^ufficiL-nt to authorize the rendition again.st the surety upon tiie guardian's bond.(^j It ii^ no defciise to an action on a guardian's bond to allege and show that no adjuslnient was ever had of the accounts of the guardian by tiic jjrubate court. ('^) 4. Release or.TAixED i;v guardian fk<)\[ ward under INFLUENCE. — A rcica.se obtained by a guaixb'an and Ids sureties, after her ai-rivaj ol age, .-^he being a daughter of the guaidian, and ignorant of lier rights, the receipt amounting to a gift, will be invalid, and slie may iile a bill within ten years after she arrives of age, against her guardian and his sureties on his bond, for an account and the payment of moneys due the ward, and to set aside a release given without consideration and in ignorance of the ward's rights, the sureties having full notice thatsuch release was fraudulently obt.viincd. A release obtained by the father, the guardian of his minor child, and his sureties, in ignorance of her rights, amounts to constructive fi-aud on the ward.(^) 5. Subrogation. — A surety has a clear right, in equity, upon paying the debt of his principal, to be substituted in tiie place of the creditor, as to all the securities held by the latter for the debt, and to have the same benefit therein as the creditor would have,(*) G. Several wards and one bond — liability. — Where one is appointed guardian for three wards and gives but one bond, he will be the separate guardian of each ward, and the death of one will not relieve the guardian from resji.ui.-ibility as guardian of the sur- vivors, and an action may be maintained on his bond, in the name of The People, for the use of the surviving wards. (^) 7. Guardian's duty — now dlscharged. — A guardian owes his ward a dut/, which can be discharged only by a performance of all the conditions of his bond, and no one but the ward has power to release the guardian or his surety. A surety on a guardian's bond undertakes for the fidelity and honesty of his principal toward his (i) Winslow vs. The People, for use of Walrath, 117 111., i';2. (2) 7-5 {3) Carter vs. Tice, 120 III., 277. (4) Rice v.s. Rice, 108 111., 199. {5) Winslow vs. The People, for the use of Walrath, 117 III., 152; 16., 17 111. Ap., 222. 356 RIGHTS AND LIABILITIES OF SURETIES. [CH. XII. ward, and when tlie guardian, by means of fraud and circumvention, procures his ward to execute an instrument in writing as an acquit- tance, in the belief it is something else, whereby the guardian is enabled to defraud his surety, the doctrine of estoppel cannot be , invoked by such surety to prevent the ward from asserting his legal rights.(») ■ 8. Citation of surety. — The citation of a surety twenty-one years after the ward became of age, to state a knowledge of the ■guardian's accounts, the guardian having died, will not revive a right of recovery against the surety for any balance remaining due and iinjciid.^^j 9. Security may recover fro:^! co-security — when, — The insolvency of one security cannot oper.ite to incr'iase the amounts recovei'able against those who are solvent, whore sureties bring suit against a co-secui'ity for contribution. The security who is compelled to pay judgment in full may recover from each of his several co-securities a pro rata share of the sum so [)aid, with interest from the time of payment.(^) 10. Finding amount due ward conclusive — wpien. — In a suit upon a guardian's bond, as against the sureties, a judgment ol the county court finding the amount due from the guardian to hi.- ward on final settlement is, in the absence of fraud, conclusive upon the sureties and their privies. (^) 11. Failure to make settlement on arrival of age, a !5Reach of guardian's bond. — A failure to make a settlement immediately upon the ward's arrival of age is a breach of the guardian's bond, and action arises at once against the sureties under the statute.(^) A condition in a guardian's bond that settlement shall be made iu the county court does not bind the surety thereon to a settlement in the probate court (^j But the transfer of said cause from the county court to the probate court in conformity to the act of 1877 did not void such bond as to other conditions therein. ') ri) Gillett vs. Wiley, 126 111., 310. (2) The People, for use, vs. Stewart, 29 111. Ap., 441. (3) Moore vs. Bruner, 31 111. Ap., 400. (4) Brooks vs. The People, for use, 15 111. Ap., 570; Seago vs. The I'eople, for use, 21 111. Ap., 283. (5) The People, for use, vs. Brooks, 22 111. Ap., 594. (6) Seelye vs. The People, 40 111. Ap., 449. (7) lb- CH. Xirr.] LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. 357 CHAPTER XIIL THE LAW OF TRUSTS AS APPLIED TO EXECUTORS, ADMLNISTRA- TOIW AND GUARDIANS. 1. Definition. 2. When a trust is not implied. 3. Duties of trustees. 4. Disabilities of trustees. 5. Duty to act in good faith. 6. Remedy against trustees. 7. Settlements between trustee and cestui que trust. 8. Relations of trustee to the court. 1. DEFrxmoN-,— A trust is a riglit of property, real or personal, held by one party lor the benefit of another. The party huldino-, is the trustee ; the one for whom he holds, is the Gcdid que trust. A trustee is a person in whom some estate, interest or power in or affecting property of any kind or description is vested for the benefit of another: hence, executors, administrators, guardians conservators and assignees are trustees, and the law of trusts is applicable to them. 2. WiiEX NOT IMPLIED.— Trusts, howcver, M-ill not be imi)lied merely from the fiict that parties are related ; and tiie mere fact of relatives trading with one another, does not impose upon them the duty of disclosing their knowledge of the value of property, or the sum for M-hich it could be sold, any more than where mutual friends trade, and the purchaser fails to disclose his superior knowled'<'e of the value of the property. The rule would be different, however, if the relative were acting as the vendor's agent; or had been the confidential business adviser; or had been entrusted with or inter- ested in the management of the business affairs ; or had agreed to ascertain the value of the property in question for the party sellino- • or had been told by the vendor, that he was relied upon, owin<>- to his relationship, to truly disclose the facts, and that the sale was made in coaseqiience only of such coiifidenoa reposed in him.(M 3. Duties of trustee^.— Frerpiently questions of interest (i) Fish vs. Clelland, ^ 111., 23S; Clelland vs. Fish, 43 III., 282. .358 LAW OF TFIUSTS APPLIED TO ILXECUTORS, ETC. [f'H. XIIL arise as to the duty wliich a trustee owes to the trust property and to the beneficiary ; and we have deemed it not inappropriate here to give a brief outline or synopsis of the law of trusts in relation to the duties of the trustee, with respect to the trust property and the cestui que trust. From the very sacredness of the obligation, to apply the prop- erty faithfully, and for the purpose to which it was intended, and in accordance with the confidence reposed, it follows as a general rule, that the trustee shall not be allowed to deal with the cestui que trust, nor with the trust property. (^) This was so by the rules of the common law, and j)er60us who were acting in a fiduciary ca- pacity, were bound to act for their principals alone. (^) Trustees and others sustaining a fiduciary and confidential relation, can not deal on their own account with the thing or person falling within the trust or relationship ;(^) hence, it follows, as we have seen, that if at sales made by them in such capacity, they become purchasers, no matter by what means, open or covert, their purchases are void- able.(^) The reason is apparent, for a party can not legally be allowed to purchase on his own account, that which his duty or trust requires him to sell on account of another.(^) A deed of trust property from the trustee to himself, however, is not ipso facto void; and, if relieved from suspicious circumstances, is at least sufficient to give color of title.^^j And, while voidable at the option of the cestui que trust, it can not ba questioned by third parties. (') Ci) Thorp vs. McCullom, i Gilm., 614; Michoud vs. Girod, 4 How, 503 ; Hitchcock vs. Watson, 18 111., 289; Wickliff vs. Robinson, 18 111., 145; Rob- bins vs. Butler, 24 111., 3S7 ; Lockwood vs. 7\Iills, 39 111., 602 ; King- vs. Cush- man,4i 111., 31 ; Aliles vs. Wheeler, 43 111., 123; Ringo vs. Binns, 10 Peters, 269. (2) Pensoneau vs. Bleakley, 14 111., 15 ; Wickliff vs. Robinson, supra. (3) Dennis vs. McCagg, 32 111., 429; Davoue vs. Fanning, 2 Johns. Ch., 252; Thorp vs. McCullom, supra; Switzer vs. Skiles, 3 Gilm., 529; Casey vs. Casey, 14 III., 112. (4) Worthy vs. Johnson, 8 Ga., 236; Wickliff vs. Robinson, supra; Ta- tum vs.McLillan,5oMiss., i ; Clark vs. Deveaux, i S. C, 172 ; ante pige, 163. (5) De Caters vs. Leray De Chaumont, 3 Paige, (N. Y.) 178; Child vs. Brace, 4 Id., 309 ; Camptiell vs. Johnson, i Sandf. (N. Y.) Ch., 148: Boyd vs. Hawkins, 2 Ired. (N. C.) Eq., 304; Saltmarsh vs. Beene, 4 Port., (Ala.) 283; Renew vs. Butler, 30 Ga., 954; Remick vs. Butterfield, 31 N. H., (2 Frost j 70 ; Den vs. Hileman, 7 N. J., L., (2 Hals.) 180; Obert vs. Hammel, iS N. J., L., (3 Har.) 73; Bank of Orleans vs. Torrey, 7 Hill., (N. Y.j 260. (6) Veasey vs. Graham, 17 Ga., 99. (7) Baldwin vs. Allison, 4 Minn., 25; McKinley vs. Irwin, 13 Ala., 68r ; Woelper's Appeal, 2 Pa. St., 71 ; Painter vs. Henderson, 77 Id., 48; McNish vs. Pope, 8 Rich. (S. C.) Eq., 112. CH. xrir] LAW OF trusts applied to executors, etc. 359 Bat as the tmistcc is not allowed to deal with the ceMul que trust as with a third person, purchases of trust property made by him will not be sustained, unless the court is satisfied he has acted through- out with the most perfect fairness, and no advantage taken of his peculiar relation. (^) If he purchases, it must be upon a full and fair disclosure of everything that relates to it, or, that may, in any material degree, affect its value. Should he have an advantageous offer for the property, it is his duty to make this known to the cesUu que trust be- fore purchasing from liim.(^) 4. Disability of trustees. — Executors, administrators, guardians or trustees, entrusted with the selling of real estate, can not purchase the same, because the seller and purchaser would con- stitute one person, and a valid contract requires two parties. Every man is partial to his own interest ; and this maxim is one not re- quired to be proved, for the law will not allow it to be controverted. An administrator appointed to sell real estate, because of his fidu- ciary relation, can not purchase it, either directly and openly, or secretly and covertly, through a sale to another person, whom he employs for the purpose. It is not enough for a trustee in such case, to say : " The sale was a public one, and you can show no fraud ;" for it is in his power to conceal it. Every such sale must be considered absolutely void in a court of common law, because it has not the power of converting the purchaser into an accountable trustee ; whereas, a court of equity will sometimes affirm the sale, and give a remedy for the fraud, by making the purchaser give up all the profit he has made by it.(^) On bill filed by the heirs of a deceased intestate, to set aside a sale of lands made by the administrator of their father, under an order of the circuit court, it is sufficient to show, that the adminis- trator was himself the purchaser at his own sale, though he may have used the name of another, and observed the forms of q. convey- ance to and from such other party, as a moans of vesting the title in himself, and may even have paid what at the time was a fair (i) Schwartz vs. Wendell, Walk. Ch., (Mich.) 267; Puzey vs. Senier, 9 Wis., 370; Staats vs. Bergen, 17 N. J. Eq., 554, 297. (2) VVard vs. Armstrong, 84 III., 151. (3) Den vs. Hammel, 18 N. J., L., (3 Har.) 73; Dyer vs. Shurtleff, 112 I\Iass., 165; Crown vs. Cowell, 116 Mass., 461. 360 LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. [CH. XIIL jiricc, entertaining no intent to defran(l,(^) as the law will not per- mit an administrator, or any kind of a trnstee or person acting in a representative capacity, to be both seller and buyer, or vice versa, in the same transaction. The act is fraudulent, whatever the intent.^ j So, too, a sale by a trustee, directly or indirectly, to a corporation of which he is a member and large owner, is as fraudu- lent as an outright transfer to himselfX^) Nor will a trustee be permitted to lease a railroad to another company of which he is a stockholder and a director.(*) Directors of a railroad company are the trustees of the stock- holders, and it is regarded as a breach of duty t(j transfer the trust, or assume obligations inconsistent with that relation — as becoming members of a company to build and equip the road, so that they may share in the profits — and they will be compelled in equity to account for the profits so realized. The cestui qua trust has an election to ratify or av(Hd contracts, in which the trustee has a private interest.(^) It is a rule of equity, that no person who is interested, with the power to sell or dispose of trust property, can become a ])urchaser at his own sale, even though he may employ another to conduct the formal part of it. This applies to sheriiis, masters, marshals, con- stables, or other officers employed to sell for another. '') The fact tliat the person interested by law to make the sale, becomes the purchaser, whether by direct or indirect means, creates such a pre- sumption of fraud as requires the sale to be vacated, if application is made within a reasonable time.(^) Where no actu d fraud appears in the sale to ths administrator, the proceeding to set aside the sale must be had in a court of equity ;^y and this, too, whether a loss has resulted to the owner or not.^^''; At law, a different rule pre- (i) Miles vs. Wheeler, 43 III., 123. (2) Id. (3) Robbins vs. Butler, 24 111., 3S7. (4) Ashuelot Railroad vs. Elliott, 57 N. H. 397. (5) Gilman C. & S. R. R. Co. vs. Kelly, 77 HI., 426. (6) Mapps vs. Sharpe, 32 111., 13; Dempster vs. West, 69 111., 613. (7) PeiLsoneau vs. Blealdey, 14 111., 15; Wickliff vs. Robinson, 18 111., 145; Robbins vs. P.utler, 24 111., 3S7 ; Dennis vs. McCagg, 32 111., 429; Patten vs. Pearson, 60 Me., 220. (8) Lockvvood vs. Mills, 39 111., 602. (9) Thorp vs. McCulloni, i Giim., 614. CH. XI rr 1 LAW OF TRUSTS APPLIKl) TO EXKCUTORS, KTC. 361 vails. There, a fraudulent deed may be invalidated, if the fraud can be sufficiently proved. (' ) If a trustee exchanges trust proporty for other real estate, and takes the title thereto in his own name, such property so :ic(piired, will be considered trust ])r()j)erty to the extent of the value of the trust property exchanjred therefor. And if no deed has been made by the trustee, and the trust jjroperty is afterwards forfeited and given back to the trustee for breach of conditions, it will inure to the benefit of the trust fnnd, and not to the benefit of the trustee.(^j An agent or trustee for another, can not speculate in the execu- tion of his fiduciary duties or employment, and if he, by compro- mise or otherwise, liquidates or pays off a debt of his principal or cestui que trust at less than he received for that purpose, he is ac- countable for the residne.(^) Nor will an agent be permitted to purchase the property of his principal at a sale of lands for taxes; for a trustee can not buy in an outstanding title, or purchase the lands for taxes, and in equity set up title thus acquired, to defeat the title of the cestui que trust.C) A trustee will never be permitted to obtain a personal benefit for himself, at the expense of his ccs'/fm que trust,(^) Should the trustee loan the money of his cestui que trust at an usurious rate of interest, the jirofits will inure to the beneficiary. (^) And where a trustee speculates with the trust funds, he may be held to account for profits if the investment has been successful, or for interest, if disastrous.^ Nor can a trustee purchase a title adverse to his beneficiary ; a purchase so made, will be considered as made for the benefit of the cestui que trust.Cj And, should the trustee purchase lands or other (i) Den vs. Hammel, i8 N. J., L., (3 Har.) 73; Thorp vs. IMcCullom, I Gilm., 614; Lockwood vs. Mills, 39 Ills., 602. (2) Blaiivelt vs. Ackerman, 5 C. E. Gr. Ch., 141. (3) Trenton l^janking Co., vs. Woodruff, i Gr. Ch., 117; Switzer vs. okiles, 3 Gilm., 529; Hitchcock vs. Watson, iS 111., 2S9. (4) Morris vs. Joseph, i W. Va., 256; O'Halloran vs. Fitzgerald 71 III-, 53- (5) Sloo vs. Law, 3 Blatchf., 459; Page vs. Naglee, 6 Cal., 241 ; Buell vs. Buckingham, 16 Iowa, 284; Richardson vs. Spencer, 18 B. Mon., (Ky.) 450; Emerson vs. Altwater, 7 Mich., 12; Jones vs. Smith, 33 Miss., 215; Jamison vs. Glascock, 29 Mo., 191 ; Davis vs. Wright, 2 Hill, (S. C.) 560. (6) Barney vs. Sanders, 16 How., 535. (7) Norris's Appeal, 71 Pa. St., 106; Blaveltvs. Ackerman, 20 N.J. Eq., 141. (8) Brantley vs. Key, 5 Jones (N. C.) Eq., 332; Crutchfield vs. Haynes, 14 Ala., 49; McCIanahan vs. Henderson, 2 A. K. Marsh., (Ky.) 388. 362 LAW OF TRUSTS ATI'LIED TO EXECUTORS, ETC [cH XIII. property with the money of the estate, and afterwards re-sell it at a profit, the benefit of the purchase inures to the estate, and not to liiinself individually ;(^) or, the cestui que trust may claim an equity u[)()n the property, for tlie money. A vendee froiu such purchaser, with notice, stands as trustee. The trust can be enforced against all persons who come into possession of the trust property with notice of it;(^) and the oestiil ^ite trust has his election to follow the trust {)roperty in the hands of the j)urchaser, or sue the trustee for his breach of trust.(^) But a party acquiring the legal title to either real or personal estate, by purchase from a trustee, in good faith, and for value, without notice, will be pi-otected against the cestui que trust. {*) Tlie cestui que trust, in prosecuting a suit in e(]uity, to compel the trustee to convey the legal title to him, may, in the same suit, recover of the trust(;e, the rents and profits, which the trustee has received to the use of the cestui que trust, wliile the trustee was in possession of the land.(^) Should the trustee sell the trust property and receive money, a court of equity will nevertheless retain jurisdiction to enforce the payment, (^j Where a trustee purchases in an outstanding title, independent of any agreement, a court of equity will consider money advanced by a trustee, as money advanceil for the benefit of his cestui que trust, and not for his own use, giving to him a lien on the properly, until he is reimbursed for the advancement.('''j A trustee has no right to derive any advantage or benefit from the tru-;t fund, but all his skill and labor in the management of it, must be dir^'ctcl to the advancement of tlie interest of his cestui que trust. (^^j And, (i) Mozely vs. Lane, 27 Ala.. 62. (2) Wood vs. Stafford, 50 Miss., 370; Shihla vs. Ely, 2 Hal. (N. J.) Ch., 181 ; Johns vs. Norris, 12 C. E. Green (N. J.) Ch., 485. (31 Isom vs. First Nat. Bank, 52 Miss., 902; Burling vs. Hammar, 20 N. J. Eq., 220; Treadwell vs. McKeon, 7 Baxter, (Tenn.) 201 ; McLeod vs. First Nat. Bank, 42 Miss., 99; National Bank vs. Hyde Park, loi 111., 595. (4.) Wyse vs. Dandridge, 35 Miss., 672 ; Prevo vs. Walters, 4 Scam., 35 ; Christmas vs. Mitchell, 3 Ired. (N. C.) Eq., 535; Hadnul vs. Wilder, 4 Mc- Cord, (.S. C.) 294. t.S) Hill, vs. Cooper, 8 Oregon, 254. (6) Nease vs. Capehart, 8 West Va., 95. (7) King vs. Ciishman, 41 111., 31. (8) Arnold \s. Brown, 24 Pick., (Mass.) 89; Mevresvs. Meyres, 2 McCord (S. C.j Ch, 214. CH. Xlir.l r.AU' OF TliUSTS APPLIED TO EX I-X.'UTORS, ETC. 3G3 should he purchase an incuml)rance upon the trust estate; or, pur- cluise or pay oif a debt due froiii hi.s ccdul que trust, to a third person, at a discount, lie will he treated) as havinn- purchased them for the benefit of the cc.'itai que tru-t.'j Wliere a trustee buys lands in his own name, and pays for (hem out of tlie trust money in his hands, a court of equity will fasten a trust upon the lands in favor of the person beneficially entitled to the money, and the cestui que trust has a right to the estate,;^) and may sell it to satisfy the trust fund.(^) Property so ])urchased by the trustee, with the trust funds, will not be liable to a judgment against him, merely because he took the title in his own name, if he always treated it as trust i)roperty, and it is not shown that the creditor considered it as the estate of the trustee, and contracted with him on the faith of it.(*) If a trustee trades with himself upon the trust fund, the cestui que trust may repudiate the act,(^) and always has the option to take the benefit of any purchase which the trustee may make, of claims or titles adverse to the estate, upon reimbursing the trustee to the extent of his outlay. While this is true, it is a general rule, he should signify his election to do so within a reasonable time ;(*') as equity will not relieve a cestui que trust, who, with full knowledge of the misconduct of the trustee, has for a long time either acquiesced in it, or slept on his rights. (") A sale by a trustee to his cestui que trust stands on the same footing as a i)urchase by a trustee from his cestui que trust, and is void, especially, if the trustee has taken advantage of the necessities of the cestui que trust, or, from the nature of the case, such advant- age may be presumed. (^j A trustee can not, by the failure of the object of the trust, be- (i) Hawley vs. Mancius, 7 Johns. (N. Y.) Ch., 174; Green vs. Winter i Johns. (N. Y.) Ch., 27; Boyd vs. Hawkins, 2 Uev. (N. C.) Eq., 195; Matter of Oakley, 2 Edw., (N. Y.) 478; Hitchcock vs. Watson. 18 lU., 289; Plielps vs. Reeder, 39 111., 172. (2) Piigh vs. Pugh, 9 Ind., 132; Durling vs. Hammar, 20 N. j. Eq., 220. (3) Treadwell vs. McKeon, 7 Baxter, (Tcnn.) 442; Pu-h vs. Pugh, supra; Burling vs. Hammar, supra. (4) Hancock vs. Titus, 39 Miss., 224. (5) Boyd vs. Clements, 14 Ga., 639. (6) Wisvvall vs. Stewart, 32 Ala., 433. (7) Hume vs. Beale, 17 Wall., ^36. (8) McCauts vs. Bee, 1 McCord (S. C.) Ch., 383. 364 LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. [CH. XIII. come the beneficial owner of tlie trust property ;(^) nor can he divest hiinself'of liis fuhiciary character, by converting the trust fund into money, and the money into land.(^) Nor will he be permitted to deny the title of the cestui que trust, and retain the property dis- charged of the trust.(') Nor can he use the trust fund in the payment of his own debts. (*) We have seen that executors and administrators cannot purchase at their own sales, and, generally, all trustees, except those appointed to preserve contingent remainders, or otherwise to stand merely nominally as such, are incapable of purchasing or dealing in the trust property.(^) A contingent remainder, is one which is limited to take effect on an event or condition which may never happen or be performed, or which may not happen or l)e performed, until after the determi- nation of the preceding particular estate; Avhile a vested remainder, is one by which a present interest passes to the party, though to be enjoyed in the future, and by which the estate is invariably fixed to remain to a determinate person, after the particular estate has been spent. Hence, we have a remainder-man, or one who is entitled to the remainder of the estate, after a particular estate carved out of it has expired. Now, let us suppose, A should con- vey projierty over to B, in trust for C, with remainder over to D, would B be allowed to take advantage of his trust, and purchase from the remainder-man D ? Let us suppose C, to be a person non covipos mentis, B, his conservator, would the law tolerate B, in in making purchases of the estate in remainder from the remainder- man ? If such practice were tolerated, the grossest outrages might be perpetrated — the object of the trust defeated — the beneficiary be deprived during his life of the proper enjoyment of that to which he is rightfully entitled, in order that the remainder, thus pur- chased, might be carefully preserved for the trustee, who becomes a dealer in the trust proi)erty. While such sales are not absolutely void, they are certainly voidable, in the fullest extent of that term, (i) Fox vs. Harrah, i Ired. (N. C.) Eq., 358. (2) Pierce vs. McKeehan, 3 Watts & S., (Pa.) 280. (3) Sweet vs. Jacobs, 6 Paige, (N. Y.) 355; Van Home vs. Fonda, 5 Johns. Ch., 388. (4) Graff vs. Castleman, 5 Rand., (Va.) 195; McConnell vs. Hodson, 2 Gilm., 640. C5J Wright vs. Campbell, 27 Ark., 637; Anie page 163. CH. Xlir.] LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. 365 upon the petition of tlie cestui que trust, but not upon the applica- tion of the trustee.(') The rule in chancery, is, that the purchaser of a reversion must prove that he gave a full price, and this rule applies with greater force to a purchaser who bore the relation of trustee to those in re- main(ler.(2) Where, however, the title of a cestui que trust, mort- gagor or remaiuder-man is destroyed, the trustee, mortgagee, or tenant for life, may acquire the real title, provided, his condition and conduct are free from fraud. (^) 5. Duty of trustee to act in good faith. — The rule in re- gard to trustees, extends to all cases where confidence has been reposed, and applies as strongly to those who have gratuitously or officiously undertaken the management of another's property, as to those who are engaged for that purpose and paid for it.(*) Tli : . where a party voluntarily interferes with and manages an estate in behalf of heii-s, as their representative, and as such acquires inform- ation to which a stranger would not have access, he assumes the obligation to his principals which properly appertain to the charac- ter of an agent. In treating with them for the purchase of an interest in an estate, he is bound to disclose how he has acted, and every matter to them Mdiich it is important for them to know, unless such disclosures were distinctly diijpensed with. An ao-ent can not deal for his own advantage with the thijig purchased for his principal ; or become the seller, or buyer, to or of them, because of his confidential relation, and his duty to disclose to his prin- cipal every fact, circumstance or advantage, in relation to the purchase, which may come to his knowledge.(^) Where confi- dence is reasonably reposed, that confidence must not be abused. The party relied upon, whether he be a jvaid servant or an assumed friend, must see that he meets fully and fairly the responsibilities of his position, and does not take advantage, either to the injury of another, or for his own gain.C') The rule is applied to all persons (i) McClure vs. Miller, i Bailey Eq., 107. (2) May vs. May, 7 Fla., 207. (3) Price vs. Evans, 26 Mo., 30. (4) Wright vs. Smith, 123 N. J. Eq., 106; Rankin vs. Porter 7 Watts (Pa.) 387. (5) Casey vs. Casey, 14 111., 112; McDonald vs. Fitliian, i Gilm 260- Fish vs. Cleland, 33 111., 23.S. ^' (6) Casey vs. C-asey, sitpra. 23 366 LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. [CH. XIII. in wliom there is a trust and confideneo reposed, wliich would bring in conflict the interest of the trustee and cestui que trust. (^) The temptation of self-interest is too powerful and insinuating to be trusted ; and it must be removed, by taking away every rela- tion in wliich there may, by any possibility, arise a conflict between the dut\ to the person with whom the trustee is dealing, or on whose account he is acting, and his individual interest, and thus provide against the probability, in many cases, and the danger, in all cases, that the dictates of self-interest will exercise a predom- inant influence and supersede that of duty,(^ A court of equity will not usually aid any one against a volun- tary act in fraud of the law. It is equally averse to allowing a person to profit by any instrument which is extorted by exciting false alarms or threats of legal consequences, when there is such a relation of confideuce as gives one a special power over another.(') 6. Remedy against trustees. — Where one assumes to act as an agent or in a fiduciary capacity, and by concealment of facts, which the party was entitled to know, and which should, in good faith, have been disclosed, and which, if known at the time, would have prevented the party selling for a grossly inadequate price, equity will afford relief. AVhere, on bill to redeem, filed by a principal against one, who, assuming to act as agent, has paid the money and redeemed his principal's laud from a decree of foreclos- ure, taking a conveyance to himself, and where the agent has sold and conveyed the lands to a bona fide purchaser, for value, he will be compelled to indemnify the principal for the loss sustained by his having placed the title beyond reach, either by requiring him to pay over the purchase money he received for the land with interest thereon, or the present value of the land, as may seem most equitable.('*) But where there is no peculiar relation of trust or confidence between the parties, the undue concealment which a court of equity -will relieve, is the non-disclosure of those facts and circunistances, which one party is under some legal or equitable obligation to communicate to the other, aud which the latter has a (i) Davoue vs. Fanning, 2 Johns. Ch., (N. Y.) 252; Hewitt vs. School District, 94 111., 528. (2) Thorp vs. McCullom, i Gilm., 614; Switzer vs. Skiles, 3 Gilm., 529; Michoud vs. Girocl, 4 How., 503. (3) liarnes vs. I5rown, 32 ftlich., 146. (4) Dennis vs. McCagtj, 32 111., 430; Smith vs. Frost, 70 N. Y., 65. CIl Xril.] LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. 367 right not merely, in foro conseientice, hut juris et dejuri, to know.(') A trustee will Jiot l)e held for any loss accruing in the manage- ment of" the trust property, where he acts with good faith in the exercise of a fair discretion, and in the same manner he would ordi- narily do in regard to his own property,(^) as the measure of care required for trustees, is the care which a prudent man would take on his own behalf, in making like investments for himself.(^) Acts of trustees, done in good faith, without selfish motives, and espe- cially under the advice of counsel, are to be viewed indulgently by a court of equity. (") Trustees are not responsible for wrongs to the trust estate in which they had no agency ;^^) nor are they liable for the title or soundness of property sold by them at public sale, except upon their own express warranty, or where fraud exists. (^) 7. Settlement betweex trustee and cestui que trust. — Parties acting in fiduciary relations, may make amicable settlements of their accounts with the cestui que trust, and there is no rule of law or justice which will prevent it, nor are they obliged to have their accounts passed through the probate court ;C} but a trustee can not be permitted to set up a fraudulent acquittance, obtained by willful misrepresentations from his cestui que trust.^^j AVhile public policy and fair dealing will not allow a trustee, either directly or indirectly, to become a purchaser of proptirty at his own sale, yet, after the sale is made, and the property h:is passed beyond his con- trol, he will have the same right to purchase it as a stranger, if the transaction is in good faith. '^^) In the absence of any proof of collusion, the fact that property was sold by a trustee for a sum less than half its value, and was shortly afterwards sold back to him by the purchaser for the same amount, is insufficient to charge him with speculation in violation of his duty.(^"j Nor will the fact that the relation of guardian and (i) Fish vs. Clelancl, 33 111., 238. (2) Knowlton vs. Bradley, 17 N. H., 45S ; Finley vs. Meniman, 39 Tex- as, 56. (3) Roosevelt vs. Roosevelt, 6 Abb., (N. Y.) N. Cas., 447 ; NefTs Appeal, 57 Pa. St., 91 ; Higgins vs. Whitsou, 20 Barb., (N. Y.) 141. (4) Ellig vs. Naglee, 9 Cal., 6S3. (5) Hestorvs. Wilkinson, 6 Hump., (Tenn.) 215. (6) Northy vs. Johnson, 8 Ga., 236. (7) Hooper vs. Hooper, 26 Mich., 435. (8) Berryhill's Appeal, 35 Pa. St., 245. (9) Bush vs. Sherman, So 111., 160; Watson vs. Sherman, 84 111., 263. (10) Bochlest vs. McBride, 48 ]\Io., 505. 368 LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. [CPI. XIII. ward has existed, preclude the making of contracts between the two after tlie fiduciary relation has terminated, and the accounts fully and fairly settled. (^) 8. Relations to the court. — A trustee appointed, becomes an officer of the court, acting under its direction and authority, and, so far as concerns matters of equitable jurisdiction, as to what he does, or ought to do, in discharge of his duties, is responsible to that court alone. (^) And as letters of administration have no extra territorial force, such as would give administrators appointed in one state control over lands lying in another state, an agreement between Michigan administrators and another party, that they should buy for their joint interest and benefit, the claim of the estate to certain lands in Illinois, and fixing the price relatively at which such claims should be sold, is not on its face presumptively fraudulent and consequently void, on the ground that it places the administrators in relations where their self-interests conflict with their duty, since, as to these Illinois lands, said administrators, as such, could not have occupied at once the two positions of seller and purchaser.(^) It will be thus seen, that the policy of our laws, prohibits the trustee from dealing with the cestui que trust, or the trust property ; and the rule which prohibits a trustee or agent, private or public, from assuming a position tending to produce a conflict between his individual interests and a faithful discharge of his fiduciary duties, w so strict, that no question will be allo\ved to be raised as to the fairness of the transaction, and no actual injury to the cestui que trust, need be shown. C*) (i) Wickiser vs. Cook, 85 111., 68. (2) Penn vs. Brewer, 12 Gill. & J., (Md.) 113. (3) Sheldon vs. Rice, 30 Mich., 296. (4) Gilmau C. & S. R. R. Co., vs. Kelly, 77 111., 426. CH. Xlir.] LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. 369 ADDITIONAL NOTES. '1. Cestui que trust may pursue trust fund into property into which it is converted. 2. Agent of a trustee or guardian — When to be held as a trustee. 3. Speculating in trust fund. 4. Trustee cannot purchase at his own sale. 5. Making profit out of the trust fund. 1. Cestui que trust may pursue fund. — Should tlie guardian invest the money of his ward in the purchase of laud, taking the title to himself, a resulting trust arises, and the ward may either follow the money into the land and hold it as a trust estate, or sue upon the guardian's bond.(^) 2. Agent — when held as trustee. — An agent of a trustee, when he acts fraudulently and collusively, may be treated as a trustee by construction, and as such held liable to the cestui que trust. If he secures any benefit by a breach of his trust, he will be responsible to the beneficial interest. Should he obtain possession of trust property, the cestui que trust may proceed against him as a trustee.(^j If one uses trust funds in his own private business, he will be chargeable with interest on same.(^) And should he will- fully violate his trust, and a loss occur, he will be chargeable with compound interest.(^) 3. Speculating in trust fund. — A court of equity will not permit a trustee to speculate in the subject-matter of his trust. Should he purchase an outstanding claim against the trust fund, the transaction will be treated as a payment only, and he will be allowed only what he paid for it.(^) 4. Trustee cannot purchase at his own sale. — A trustee, or one acting in a fiduciary capacity, cannot become a purchaser at his own sale, either directly or indirectly, and hold to his own use; (i) Rice vs. Rice, 108 111., 199. (2) Lehmann vs. Rothbarth, in 111., 185. 3) Z-^. (4) Hughes vs. The People, for use of Kerrick, in III., 457. (5) Rankin vs. Barcroft, 114 111., 441. 370 LAW OF TRUSTS APPLIED TO EXECUTORS, ETC. [cH. XIH. and it matters not whether the sale is made by himseir or under a decree of court, or whether there was auy f'rauci, in fact, intended. The general rule is, when a trustee of any description, or a per.«on acting as agent for others, sells a trust e-stato, and i)ccomes hinisoif interested, either directly or indirectly, in the {.'urchaso, the eesiul que trust is entitled, as a matter of Cv,nrse, at his election, to have the sale affirmed or set aside. An executor, under a decree of court authorizing thesaJo of hand^ of the estate to pay del;ts, sold one hnndiod and ^ixty acres of land to his son and partner for the sum of one dollar, subject lo a mort- gage then held and controlled by the executor. The son tesiifien that his object was to secure the rents, about 'ailing due, to apply on the debt held by his fatiier. It was /uld, that the heirs of the testator were entitled to have the sale set aside, and have an account for the rents and profits received by the purchaser. {') 5. Making profit out of trust fund. — A trustee, or a person standing in a fiduciary relation, will not, in equity, be allowed to so exercise his trust as to speculate or make profit out of the trust fund.O (i) Borders vs. Murphy, 125 111., 578. (2J Roseboom vs. VXhiiaker, 132 111., 81 CH. XIV.] ADOPTION OF CHILDREN. 371 CHAPTER XIV. ADOPTION OF CHILDREN. 1. Humane provisions of the law— who may adopt. 2. What the petition shall contain— forms. 3. What must be found by court— decree. 4. When consent of child is necessary — form. 5. Rights of child adopted. 6. Rights of parents of adopted children. 7. Former adoptions. 8. Effect as to natural parents. 1. Humane provisions of the law— who may adopt. An act of the General Assembly was approved February 27th, 1874, and went into effect July 1st, 1874, giving concnrrent jurisdiction to the circuit and county courts in the adoption of children.(') The county court, from its large jurisdiction over the domestic relations, is naturally the court, it would seem, in which to transact such business. It is open twelve terms a year. It is convenient alike to the attorney and client, and were the humane provisions of this chapter more generally made known, and the ease and facility for the adoption of children, better understood, many poor and orphaned children would find comfortable homes and foster parents, who would care and provide for them. Any resident of this state may petition the circuit or county court, of the county in which he resides, for leave to adopt a child, not his own, and, if desired, for a change of the child's namo, l)ut the prayer of such petition, by a person having a husband or wife, shall not be granted, unless such husband or wife joins therein and when they so join, the adoption shall be by them jointly. 2. PKTrnox— FORM.— The petition shall state the name, sex and age, of the child sought to be adopted; and, if it is desired to change the name, the new name; the name and residence of the parents of the child, if known to the petitioner, and of the guardian, if any, (i) Hurd's R. S., Chap. 4, § i. 372 ADOPTION OF CHILDREN. [cH. XIV. and wlicthor the parents or tlie snrvivor of them, or the guardian, it" any, consents to such adoption. ('j Tlic petition, under Section two of this Act, may be in form as follows: State of Illinois, "I //■/ the County Court, .....County, / • term,A.D.\%... To the Hon , Judge of said Court: Your petitioners, A B and C 15, his wife, of , in said county, would respectlully show unto your honor: That they are residents of said county, and are desirous of adopting a ciiild, so as to render it capable of inheriting their estate. That the name of said child is E F, that it was of the age of... years, on the..-day of last, and is a male child. And your petitioners would further show unto your honor, that the mother of said child is dead, but the father, C F, is still living, and consents to the adoption of said child by your petitioners, as will appear from written consent filed herewith. And further, that the said E F has resided with them for the space of four years now last past ; that the father of said child is wholly unable to provide for him and educate him in a suitable manner, and that your petitioners have ample means so to do, and that it would, therefore, be to the interest of said child to become the adopted child of your petitioners. Your petitioners would further show, that the father of said child has had due notice of the time when, and the place where, this application would be made, as will appear by a copy of such notice, with proof of service filed herewith. Your petitioners, therefore, pray this honorable court, to make an order declaring said child to be the adopted child of your petitioners, and capable of inheriting their estate, and that the name of said child be changed to that of E B, according to the Statute in such case made and provided, and your petitioners will ever pray, etc. By , Attorney. A B, C B. St.vte of Illinois, I County. J "• A B and C B, the above named petitioners, being duly sworn, depose and say, tliat tlie facts contained in the above petition by them subscribed, are true, according to the best of their knowledge, information and belief A B, C B. Subscribed and sworn to before me, this. ..day of , A. D. iS... , County Clerk. Notice to parent or guardian of application for adoption of child, uui)- be in form as follows : To Mr , rtease take notice : That we will, on the. ..day of , A. D. (ij Kurd's R. S., Cliap. 4, I 2. CH. XIV.] ADOPTION OF CHILDREN. 37J 18..., and at the hour of... ..o'clock m., of said day, or, as soon thereafter as counsel can be heard, present to the county court of county, in the State of Illinois, our petition, asking for an order of said court, declaring your minor child, E F, to be our adopted child, and also changing its name to that of E B, as is provided by Act of the General Assembly of the .State of Illinois, approved February 27, 1S74, when and where you can appear and file objections to such application, if you desire so to do. Dated this. ..day of , A. D. 18... A B, C B. State of Illinois, \ County, r^- being first duly sworn, on his oath says, that on the. ..day of. , A. D. 18..., he delivered to the above named C F, a true copy of the fore- going notice. Sworn to and subscribed before me, this. ..day of , A. D. 18... , County Clerk. CONSENT OF PARENT TO ADOPTION OF CHILD. I, C F, of , in the county of , and State of Illinois, father of E F, a minor child, do hereby consent to the adoption of said child by A B and C B, in manner and form as provided by an Act of the General Assem- bly of the State of Illinois, approved February 27, A. D. 1874. Dated this-.day of. , A. D. 18.... C F. Said petition shall be docketed by the clerk when filed, in form as follows : In the Matter of the Application of A B and C B, for an Order Declaring a Child Adopted. 3. What imust be found by court — decree. — If the court is satisfied that the parents of the child, or the survivor of them, has .deserted his or her family, or such child, for the space of one year next preceding the application, or, if neither is living, the guardian, or, if there is no guardian, the next of kin, in this state, capable of giving consent, has notice of the presentation of the peti- tion, and consents to such adoption, or that such chlkl has no father or mother living, and no next of kin living in this state, capable of giving consent, or is a foundling, and that the facts stated in the petition are true, and that the petitioner is of sufficient ability to bring up the child and furnish suitable nurture and education, and that it Is fit and proper that such adoption should be made, a decree shall be made, setting forth the facts, and ordering that from the 374 ADOPTION OF CHILDHEN [CH. XIV. date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners, and may decree that the name of the child be changed according to the prayer of the petition. (^) The decree may be in form as follows : State of Illinois, \.. In the Coimty Court of. County, J Coimty, term, A n.iS.... In the Matter of the Petition of A B and C B, for an Order Declaring E F to be their Adopted Child. And now, on this day, the above cause coming on to be heard upon the petition filed in the above cause, and proofs adduced in support of the facts therein stated ; and it appearing to the court from the petition and evidence herein, that said petitioners are residents of said county, and desire to adopt said child ; that said child is a male, and of the age of.. .years, on the-. .day of , A. D. i8-.. And further, that said petitioners desire the name of said child changed to that of E B. That the mother of said child is dead, but the father is living, and consents to the adoption of said child by said petitioners ; and further, that the father of said child is not a suitable person to bring up said child. That said A B and C B, are proper persons, and have sufficient ability to bring up said child, and furnish it suitable nurture and education, and that all the other matters and facts in said petition as therein stated, are true, and that it would, therefore, be to the interest of said child to be the adopted child of said petitioners. And it further appearing, that the father of said child has had due notice ol the time when, and the place where, said petitioners would make the application for an order in this cause, It is therefore ordered and adjudged by the court, that the said E F, be, from henceforth, the adopted child of said petitioners and capa- ble of inheriting their estate ; that the name of said child be changed to that of E B, and that said petitioners pay the costs of this proceeding. Approved. , Judge of the County Court of. County, Illinois. Or, the decree may be in form as follows: State of Illinois,! In the County Court of. County, County, i^^' To the term, A. D. i?>... In the Matter of the Petition of A B ^ and C B, for an Order Declaring \ Final Order. E F to be their Adopted Child, j And now, on this. ..day of , A. D. iS-.., the same being the. ..ju- dicial day of the present term of this court, comes the said petitioners, by , their attorney, and this cause coming on now to be heard, upon said petition, and the consent of , the child to be adopted. (i) Kurd's R. S., Chap. 4, I 3- on. XIV.] ADOPTION OF CHILDREN. 375 And it appearing to the court that the father of said child has had due notice of the time when, and the place where, said petitioners would make application for an order in this cause, and has filed his written consent hjrein to the application, and the court being now sufficiently advised and satisfied in the premises, and having heard the testimony of and , witnesses, who were produced and sworn, and all the evidence adduced in support of said petition, finds : That the petitioners, who are residents of the county of , and State of Illinois, desire to adopt E F, a male child, aged... years on the. ..day of- , A. D. i8..., and desire the name of said child to be changed to that of E B. That the mother of said child is dead, and the father is not a suitable person to bring up said child, and that he has also filed his written consent herein, to the adoption of his child by said peti- tioners. That said A B and C B, are proper persons, and have sufficient ability to bring up said child, and furnish suitable nurture and education ; and that all the matters and facts in said petition as therein stated are true. It is therefore ordered, adjudged and decreed, by the court, that the said E F be the adopted child of the said petitioners, and capable of inher- iting their estate. And it is further ordered and decreed, that the name of the said child be changed to that of E B, and said petitioners pay all the costs of this proceeding, within... days from this date, and that in default thereof, execution may issue. Approved. , Judge of the County Court of. County, Illinois. 4. When consent of child is necessary. — If the child is of the age of fourteen years or upwards, the adoption shall not be made without his consent. (^) The form of consent to be used when the child is fourteen years old and upwards, may be as follows ; State of Illinois, \ C6unty, r^^- I, E F, a minor child of G F, the child for whose adoption A B and C B, his wife, have filed in the county court a petition, which is now pending and undetermined, and is entitled of the term, A. D. i8-.., of said court, being aged. ..years on the. ..day of. , A. D. i8-.., do hereby request that the prayer of said petition may be granted, and consent to become the adopted child of the said A B and C B, the petitioners, and be known and called by the name of E B. E F. 5. Rights of child adopted. — A child .so adopted, shall be deemed, for the purpose of inheritance by such child, and his descendants and husband or wife, and other legal cf)nsc([uen(!OS and incidents of the n-atural relation of parents and children, the child (i) Kurd's R. S., Chap. 4, | 4. 376 ADOPTION OF CHILDREN. [CH. XIV. of the parents by adoption, tlic same as if he had been born to thorn in hiwful wedlock, except that he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindi'ed of such parents by right of representation. (^) Under this statute, which, being in derogation of the common law, is strictly construed, an adopted child can take by descent only from the person or persons adopting him, and not from the lineal or collateral kindred of the adopting parents. Therefore, such child can not, by inheritance, take from a child of the adopting parents, born in wedlock, the adopted child not being a brother or sister in fact.(^) The rights of inheritance acquired by an adopted child under the laws of another state, where, and under whose laws he was adopted, will be recognized and u})held in this state, only so far as they are not inconsistent with our laws of descent : so, that, if such child can not take by descent by our statute, it can not take at all, no matter what may be the law of the state where the adoption was made, as the laws of this state must govern the descent of real property situated within its limits. (^) 6. Rights of adopted parents, etc. — The parents by adop- tion and their heirs shall take by descent, from any child adopted under this or any other law of this state for the adoption of children, and flic descendants, and husband or wife, of such child, only such property as he has taken or may hereafter take from or through the adopting parents, or either of them, either by gift, bequest, devise or descent, with the accumulations, income and profits there- of; and all laws of descent and rules of inheritance, shall apply to and govern the descent of any such property, the same as if the child were the natural child of such parents ; but the parents by adoption and their heirs, shall not inherit any property which such child may take or have taken, by gift, bequest, devise or descent, from his kindred by blood. C) 7. Former adoptions. — The preceding section shall apply to any case where a child has heretofore been declared by any court to (i) Hurd's R. S., Chap.4, g 5. (2) Keeghan vs. Geraghty, loi III., 26. (3) lb- {4) Hurd's R. S., Chap. 4, | 6. CH. XIV ] ADOPTION OF CHILDREN. 377 have been adopted, or where such adoption ha« been declared or assiinied in any deed or last will and testament, givinj^, bequeath- ing or devising property to sucJi child, as the adopted child of" the grantor or testator, and the wife or husband of such adopted j)arent shall be capable of inheriting from such child the oame as if she or he had become the adoj)t€d mother or father of such child, pursu- ant to this act.(^) 8. Effect as to natural parents. — The natural parents of a child so adopted, shall be deprived, by the decree, of all legal rights, as respects the child, and the child shall be freed from all obligations of maintenance and obedience as respects such pareuts.^^) (i) Kurd's R. S., Chap. 4, 2 7. (2) Hurd's R. S., Chap. 4, § 8. 378 ADOPTION OF CHILDREN. [CH. XIV. ADDITIONAL NOTES. 1. Of the petition. 2. Jurisdiction of the county court — Presumption. 3. Witness — Competency of party as against one suing as heir. 4. Adoption of child so as to confer the right of inheritance. 1. Petition. — A petition by a party to enable him to adopt a cliild under tiie act of 18G7, in order to give the court jurisdiction to act, need not recite any jurisdictional facts, except those the statute specifies shall be recited. The law does not require the petition to state the nauie of the father of the child, and that he consents, whether he is dead, or, if he be alive, that he has abandoned the child. In such case it will be sufficient to state the mother'.- name, and that she consents. The failure to allege in the petition the death of the father, or his abandonment, will not go to the jurisdiction of the court. Where the father is not named, the pre sumption will be, he was dead or had al^andoned his child. 2. JURLSDICTION OF COUNTY COURT — PRE.SUMPTION. — Where an order of the county court, made in 1870, for the adoption of a child, is shown, it will be presumed the court had juri.sdiction, unless it appears from the record itself that it could not have had jurisdiction in any contingency, or unless the statute authorizing the court to act requires the record affirmatively to show, precedent to its decree, some fact which it fails to show. Decree cannot be questioned collaterally. A decree of the court declaring a child adopted and to be the adopted heir of another, if the court had jurisdiction to act at all, however erroneous it may be, must stand until reversed in sodk^ direct pooceeding. 3. Witness — competency. — On a bill by a minor adopted heir for the partition of lands of which his adopted father died seized, and for the assignment of dower, the widow of the deceased ancestor is not a competent witness to prove advances made by her to her husband, to discharge the incumbrances on the hind, and have such advances made a lien on the premi.ses in her favor. (') (i) Barnard vs. Barnard, 119 111., 92. CH. XrV.l A r>OPTrON OF CHILDREN. 379 4. To conpm<:r iuoitt of infieritance. — Unncr t],G p+nfnte. wliore tlierc are luisband and wife, tlie wife's interest, as rfspects l)erself or her children iu the rio;ht of inheritance, cannot be affectedi by any act of adoption by the hnsl)nnd ah)ne of another's child than tJieir own, f^iving it the right of iidieritance, but there must be the consent of the wife thereto. (') Tlie welfare of the child is of prime importance, and the caprice, obstinacy or opposition of non-consenting parents should not be i-egarded.(*) And appeal to the circuit court will not lie from an order entered by the county court for the adoption of a child here- under.(^j (i) Wallace vs. Rappleye, 103 111., 229. (2) Baker vs. Strahorn, 33 111. A p., 59. (3) Mey.ers vs. Meyers, 32 111. Ap., 189. 380 PROCEEDINGS AS CONSERVATOR. [CH. XV. CHAPTER XV. PROCEEDINGS AS CONSERVATOR. 1. Appointment of— form of a petition for the appointment of a con servator. 2. Summons— notice— form of notice to person alleged to be insane. 3. Bond— counter security. 4. Suit on bond. 5. C.ire of estate— custody of person— children. 6 Inventory. 7, Form of inventory. Sf. Settlements. 9. Final settlement. 10. Manner of accounting. 11. Collections. 12. Performance of contracts. 13. I.egal proceeding. 14. What contracts void. 15. What contracts voidable. 16. Swindling idiot, lunatic, etc. .»7. Management of estate. 18. investment of money. 19. Leasing real estate. 20. Mortgaging real estate. 21. Petition to mortgage. 22. No strict foreclosure. 23. Sale of real estate provided for. 24. Petition for sale. 25. Notice of application. 26. Docket— practice. 27. Sale. 28. Return of sale — approval — record — title. 29. Proceeds of sale. 30. Sufficiency of sureties. 31. Counter security. 32. Removal of conservator. 33. Summons to show cause — notice. 34. Resignation. 35. Successor appointed — delivery to successor 36. Compensation. 37. Restoration to reason — form of a petition to remove the conservator. 38. Notice. 39. Trial^udgnient — form ui •)rder removing: conser\al)_:r. CH. XV ] PROCEEDINGS AS CONSERVATOR. 381 40. Appeals. 41. Suits, collection, etc., by non-resident conservator. 42. Sale of real estate by non-resident conservator. 43. Notice of petition. 44. Bond. 45. Bond for costs. 1. Appointment — petition for — form of. — An act to revise the law in relation to idiots, lunatics, drunkards and spendthrifts, was approved March 26, 1874, and went into force July 1, 1874. Almost all that has been written in relation to guardian and ward is applicable to this relation, for a conservator is simply a guardian, appointed by the court to look after the person and estate of certain persons under disability. The conservator is the guardian of the idiot, the lunatic or dis- tracted, the drunkard or the spendthrift — they are, when appointed, the wards of the conservator. Many, if not all the forms used under the head of guardian and ward, are suitable to be used here, for the course to be pursued by the guardian of the minor, is the same to be pursued by the conservator. Both are officers of the court, which, in the exercise of its jurisdiction, appoints them to look after and care for those, who, by reason of their disability, are unable to look after and care for themselves, their estates and prop- erty. The chapter of the statute is a full and complete code, and not unlike the chapter in relation to guardian and ward, and we give here its various provisions at large : ^yllenever any ivliot, lunatic or distracted person has an estate, real or jDcrsonal ; or when any person, by excessive drinking, gaming, idleness or debauchery of any kind, so spends, wastes or lessens his estate, as to expose himself or his family to want or suffering, or any county, town or incorporated city, town or village to any charge or expense for the support of himself or his family, the county court of the county in which such person lives, shall, on the application of any relative or creditor, or if there be neither relative or creditor, then any person living in such county, order a jury to be summoned to ascertain whether such person be idiot, lunatic or distracted, a drunkard or such spendthrift; and if the jury return in their verdict that such person is idiot, lunatic or distracted, or drunkard, or so spends, wastes or lessens his estate, it shall be the duty of the court to 24 382 PROCEEDINGS AS CONSERVATOR. [CH. XV. appoint some fit person to be the conservator of such person. (') The validity of the appointment of a conservator, as in the case of an administrator, can not be inquired into in a collateral proceed- ing, as in cjise of a bill filed to set aside a sale of the lunatic's land, made by his conservator.(^) The petition may be in form as follows : In the Matter of the Estate of. , alleged to be State of Illinois,") County, / To the Hon , Judge of the Court of- County, in the State of Illinois : Tiie petition of the undersigned respectfully represents, that , of the county of. , and state aforesaid, is ; that he has real property. known and described as follows, viz. : \_Here describe the realty.] That his personal property consists of the following, to-wit: [//ere describe the per- sonalty,] and is reasonably worth about , and that he the said , is. by reason of , unfit properly to manage or control his property. Your petitioner, being a... of .therefore prays that your honor will appoint , or some other fit person to be conservator of the said Dated this....day of. , A. D. 18.... By , Attorney. * Subscribed and sworn to before me, this. ..day of , A. D. i8-.., by A B, the petitioner aforesaid. , Clerk. 2. Summons — xoticf:. — On an application for the appointment of a conservator of any person being filed, summons shall be issued and served upon the per.sun for \vhoin a conservator is sought to be appointed, in the same manner as summons is issued and served in ca.ses in chancery. When tlie ap|)licatiou is against an idiot or hniatic, the clerk of the court in whi<'h the ajiplication is filed, shall a'so give not less than ten days' notice thereof, by at least one in- sertion in some newspaper published in the coiuity.(^J The notice may be in form as follows: In the Matter of the Estate of. , alleged to be State of Illinois, 1 In the Countv Court, County, / ^^- To the term, A. D. 18.... To , alleged to be Take Notice : That A B has filed in the county court of said county, a petition against (i) Kurd's R. S., Chap. 86, ? i. (3) Hurd's R. S., Chap. 86, I 2. (2^ Dodge vs. Cole, 97 111., 33S. CH. XV.] PROCEEDINGS AS CONSERVATOR. 383 you for the appointment of a conservator, which said petition will be heard at the. .-term, A. D. i8..., when and where you can appear and defend. , Attorney. , Clerk of the County Court. 3. Bond. — The conservator so appointed, shall, before entcrinji; upon the duties of liis office, give bond payable to the people of the State of Illinois, with at least two sufficient sureties, to be approved by the court, in double the amount of his ward's real and 2)eraonal estate, with such conditions as near as may be, as provided in the case of the bonds of guardians of infants. Additional bonds and counter security may be required, as hereinafter })rovidcd.(^) 4. Suit ox bond. — Bonds given in pursuance of this act, may be put in suit in the name of the people of the State of Illinois, to the use of any person entitled to recover on the breach thereof, and damages adjudged on proceedings had thereon as in other cases of penal bonds. (^) Mere informalities in the execution of a conservator's bond, will not avail as a defense thcreto.(^) 5. Care of estate — custody of person — children. — Such conservator shall have the care and management of the real and personal estate of his ward, and the custody of his person, unless oth- erwise ordered by the court, and the custody and education of his children, where no other guardian is appointed, unless the court orders otherwise; but this act shall not be so construed, as to de- prive the mother of the custody and education of the children without her consent, if she be a fit and competent person to have such custody and education. (^) 6. IiNVENTORY. — The conservator shall, immediately upon his appointment, take charge of the estate of his ward, and within sixty days after such appointment, or, if the court is not in session at the expiration of that time, at the next term thereafter, return to the court a true and perfect" inventory of the real and personal estate of the ward, signed by him and verified by his affidavit. As often as other estate shall thereafter come to his knowledge, he shall return an inventory thereof within sixty days from the time the same .shall come to h:s knowledge.(^^j (i) Kurd's R. S., Chap. 86, ? 3. (2) Kurd's R. S., Chap. 86, ? 4. (3) Richardson vs. People, 8^ 111., 495. (4) Kurd's R. .S., Chap. 86, ^5- (5) Kurd's R. .S., Chap. 86,^ 6. 384 PROCEEDINGS AS CONSERVATOR. [CH. XV. 7. Form of inventory. — Tlie inventory shall describe the real estate, its probable value and rental, and state whether the same is encumbered, and if encund)ered, how, and for how much ; what amount of money is on hand, and contain a list of all personal property, including annuities and credits of the ward, designating them as "good," "doubtful," or " desperate," as the case may be.(^) 8. Settlements. — The conservator shall, at the expiration of a year from his appointment, settle his accounts as conservator Avitli the county court, and at least once each year thereafter, and as much oftener as the coui"t may require. (*) 9. Final settlement. — Such conservator, at the expiration of his trust, shall pay and deliver to those entitled thereto, all the moneys, estate and title papers, in his hands as conservator, or with which he is chargeable as such, in such manner as shall be directed by the order or decree of any court having jurisdiction thereof. (^) 10. Manner of accounting. — On every accounting or final settlement of a conservator, he shall exhibit and file his account as such conservator, setting forth specifically, in sej)arate items, on what account expenditures were made by him, and all sums received and paid out since last accounting, and on what account each was received and paid out, and showing the true balance of money on hand — which account, shall be accompanied by the proper vouchers, and signed by him and verified by his affidavit. (^) 11. Collections. — The conservator shall settle all accounts of his ward, and demand and sue for and receive in his own name, as conservator, all personal prop:'rty of and demands due the ward, or with the approbation of the court, compound for the same, and give a discharge to the debtor upon receiving a fair and just dividend of his estate and effects. (^) 12. Performance of contracts.— Tlie conservator, by tlu j)ermission and subject to the direction of the court which ai)pointed him, may perform the j^ersonal contracts of his ward, made in good faith and legally subsisting at the time of the commencement of his (i^ tlunl's R. S., Clmp. 86, ? 7. (4) Hurd's R. S., Cl)ai>. 85, ? 10. (2) Hiird's R. S., Chap. 86, ^^ S. (5) Ilurd's R. S., Chap. 85, ^ il (3) Kurd's R. S., Chap. 86. i 9. CH. XV ] PROCEEDINGS AS CONSERVATOR. 385 disability, and which may be performed with advantage to the estate of the ward.(^) 13. Legal proceedingr. — He shall aj)poar for and represent his ward in all suits and proceedings, unless another person is ap- pointed for that purpose, as conservator or next friend; but nothing contained in this act shall impair or affect the power of any court to appoint a conservator or next friend to defend the interest of said ward impleaded in such court, or interested in a suit or matter therein pending, nor its power to appoint or allow any person, as next friend for such ward, to commence, prosecute or defend any suit in his behalf, subject to the direction of such court.(^) 14. What contracts void.— Every note, bill, bond or other contract, by an idiot, lunatic, distracted person, or spendthrift, made after the finding of the jury, as provided in Section 1 of this act, shall be void as against the idiot, lunatic, distracted person, drunk- ard or spendthrift, and his estate ; but the \wvson makingany contract with such idiot, lunatic, distracted person or spendthrift, shall be bound thereby. (^^j 15. What contracts voidable. — Every contract made with an idiot, lunatic or distracted person, before such finding, or with a drunkard or s]>endthrift, made after the application for the appoint- ment of a conservator, may be avoided, except in favor of the per- son fraudulently making the same.('*) 16. Swindling idiot, lunatic, etc.— Whoever, by trading with, bartering, gaming, or any other device, possesses himself of any property or valuable thing belonging to any idiot, lunatic or notoriously distracted person, drunkard or spendthrift, shall be deemed guilty of swindling, and upon conviction thereof, be fined in a sum not exceeding $2,000, or confined in the county jail not exceeding one year, or botli.(^) 17. Management of estate. — The conservator shall mana<>-e the estate of the ward frugally ami without waste, and apply the income and profit thereof, so far as the same may be necossaiy, to the comfort and suitable support of his ward and his flimily, and the education of his children. (^) (i) Hurd's R. S., Chap. 86, ? 12. (4) Hurd's R. S., Chap. R6 ? 15 (2) Hurd's R. S., Chap. 86, 'i 13. (5) Hurd'.s R. .S., Chap. 86' ^ 16 (3) Hurd's R. S., Chap. 86, ^ 14. (6) Hurd's R. S.. Chap. 85, | 17. 386 PROCEEDINGS AS CONSERVATOR. [cH. XV. 18. Investment of money. — It shall be the duty of the con- servator to put and keep his ward's money at interest, upon security to be approved by the court, or invest the same in United States bonds or otlier United States interest-bearing securities. Personal security may be taken for loans not exceeding $100. Loans in hu'ger amounts shall be upon real estate security. No loan shall be made for a longer time than three years, unless authorized by the <^ourt: Provided, the same may be extended from year to year, witliout the approval of the court.(^) 19. Leasing real estate. — The conservator may lease the real estate of the ward, upon such terms, and for such length of time, as tlic county court shall a]>prove.(^) 20. Mortgaging real estate. — The conservator may, by leave of the county court, mortgage the real estate of the ward for a term of years, or in fee.(^) 21. Petition to ^mortgage. — C "fore any mortgage shall be made, the conservator shall petition the county court for an order authorizing such mortgage to be made, in which petition shall be set out the condition of the estate, and the facts and circumstances on which the petition is founded, and a description of the j^remiscs sought to be mortgaged. (") 22. No strict foreclosure. — No decree of strict foreclosure shall be made upon any such mortgage, but redemption shall be allowed, as is now provided by law in cases of sales under execu- tions upon common law judgments. (^) 23. Sale of real estate. — On the petition of the conserv^a- tor, the county court of the county where the ward resides, or if the ward does not reside in the state, of the county where the real estate or some part of it is situated, may order the sale of the real estate of the ward for his support and that of his family, when the court shall deem it necessary, or to invest the proceeds in other real estate, or for the purpose of otherwise investing the same, or" for the purpose of l^aying the debts of the ward or the education of the children of said ward.i^**) The right to order a sale of the real estate of a lunatic, is inher- (i) Kurd's R. S., Chap. 86, ? i8. (4) Kurd's R. S., Chap. 86, ? 21. (2) Kurd's R. S., Chap. 86, ^ 19. (51 Kurd's R. S., Chap. 86, 'i 22. (3J Kurd's R. S., Chap. 86, ^ 20. (6j Kurd's R. S., Chap. 86, ^ 23. CH. XV.] PROCEEDINGS AS CONSERVATOR. 387 ent in courts of chancery in this state, and does not depend upon tlic existence of" a statute specifically giving such authority to thecourt.(') 24. Petition for sale. — The petition shall set forth the con- dition of tlie estate and the facts and circumstances on which the petition is founded, and shall be signed by the conservator and be verified by his affidavit, and shall be filed at least ten days before the commencement of the term of court at which the application shall be made.(^) 25. Notice of application. — Notice of such application shall be given to all persons concerned by publication in some newspaper published in the county where the application is made, at least once in each week for three successive weeks, or if no newspaper is published in such county, by setting up written or printed notices in three of the most public places in the county at least three weeks before the session of the court at which such application shall be made. The ward shall be served with a copy of such notice at least ten days before the hearing of such application. Such service may be proved in the same manner as the service of a copy of a bill in chancery. (') 26. Docket — practice. — Such application shall be docketed as other causes, and the petition may be amended, heard or contin- ued for further notice, or for other cause. The practice in such cases shall be the same as in other cases in chancery. (^) 27. Sale. — The court shall direct notice of the time and place of sale to be given, and may direct the sale to be made on reasona- ble credit, and require such security of the conservator or purchaser as the interest of the ward may require.(^) 28. Return of sale — approval — record — title. — It shall be the duty of the conservator making such sale, as soon as may be, to make return of such sale to the court granting the order, which, if approved, shall be recorded, and shall vest in the ])urchaser or purchasers, all the interest of the ward in the estate so sold.(^) 29. Proceeds of sale. — An account of all moneys and secu- rities received by any conservator for the sale of real estate of his (i) Dodge vs. Cole, 97 111., 338; Allman vs. Taylor, loi 111., 1S5. (2) Kurd's R. S., Chap. 86, I 24. (3) Kurd's R. S., Chap. 86, ^^ 25. (4) Kurd's R. S., Chap. 86, I 26. (5) Kurd's R. S., Chap. 86, <( 27. (6) Kurd's R. S., Chap. 86, 'i 28. 388 PROCEEDINGS AS CONSERVATOR. fcH. XV. ward, shall be returned on oath of such conservator to the county court of the county where letters of conservatorship were obtained, and such money shall be accounted for and subject to the order ol the county court in like manner as other moneys belonging to such ward. In case of sale for re-investment in this state, the money shall be re-invested under the direction of the court.(^) 30. Sufficiency of sureties. — It shall be the duty of the county court, at each accounting of the conservator, to inquire into the sufficiency of his sureties, and if at any time it has cause to be- lieve that the sureties of a conservator are insufficient or in failing circumstances, it shall, after summoning the conservator, if he be not before the court, require him to give additional security.(^) 31. Counter security. — Upon the application of the surety of any conservator, and after summoning the conservator, the court may, if it believes him to be insolvent or in doubtful circumstances, require him to give counter security to his sureties. (^j 32. Removal of conservator. — The county court may re- move a conservator for his failure to give bond or security or addi- tional or counter security when required, or for a failure to make inventory or to account and make settlement, or support the ward, or whea he shall have beco;ne insane, or have removed out of the state, or become incapable or unsuitable for the discharge of his duties, or for failure to discharge any duty required of him by la^v or the order of the court, or for other good cause. (■*) 33. Summons to show cause — notice. — Before removing a conservator, the court shall summon him to show cause why he should not be removed for the cause alleged. If the conservator has left the state, or can not be served with process, he may be notified in the same manner as non-resident defendants in chancery. (■'^) 34. Resignation. — When it shall appear proper the court may permit the conservator to resign his trust, if he first settles his ac- counts and delivers over the estate as by the court directed. ^^) 35. Successor appointed — delivery to successor. — Upon the removal, resignation or. death of a conservator, another may be appointed, who shall give bond and security, and perform the (i) Hurd's R. S., Chap. 86, ? 29. (4) Hurd's R. S., Chap. 86, ? 32. (2) Hurd's R. S., Chap. 86, {l 30. {5) Hurd's R. S., Chap. 86, ? 53. (3) Hurd's R. S., Chap. 86, i 31. (6) Hurd's R. S., Chap. 86, 'i 34. CH. XV.] PROCEEDINGS AS CONSERVATOR. 389 duties prescribed by this act. The court shall have power to com- pel the conservator so removed or resigned, or the executor or ad- ministrator of a deceased conservator, to dciliver up to such suc- •jessor, all the goods, chattels, moneys, title papers and other effects in his custody or control belonging to the ward ; and upon failure to so deliver the same, to commit the person offending to jail, until he shall comply with the order of the eourt.(') 36. Compensation. — Conservators on settlement shall be allowed such fees and compensation for their services, as shall seem reasonable and just to the court. (^) 37. Restoration to reason. — When any person, for whom a conservator has been or may be appointed, under the provisions of this act, shall be restored to his reason, or in case such drunkard or spendthrift shall have become so reformed as to be a proper and safe person to have the care and management of his estate, such person may apply to the county court of the county in which such conservator was appointed, to have said conservator removed, and the care and management of his property, or so much thereof as shall remain, restored to him.(^) It is usual to file a petition addressed to the court, which may be in form as follows : State of Illinois, \ /;/ the County Court, County, I ■"•*• To the term, A. D. \Z.... To the Hon ,Jndge of the Comity Court of said County: Your petitioner, , of the county of. , and State of Illinois, would respectfully represent unto your honor, that at the.. .term of this honorable I'ourt, one was appointed as his conservator, and from that time on until the present, has continued to act as such conservator. That your pe- titioner was adjudged insane, and on to-wit: the-. .day of- , A. D. i8..., sent to the Insane Asylum at Anna, Illinois, to be cared for and treated, and that on to-wit: the. ..day of , A. D. iS ...your petitioner, having fully recovered from said insanity, was, by the superintendent of said hospital, discharged as fully restored to reason. Wherefore, in consideration of the premises aforesaid, your petitioner prays that the said may be re- moved as conservator of your petitioner, and that all the estate, both real and personal, belonging to your petitioner, maybe restored to him. To that end your petitioner prays that a summons may issue for the said , conservator, whom he makes defendant to this petition, return- (i) Hurd's R. S., Chap. 86, I 35. i^,) Hurd's R. S., Chap. 86, I 37. (2) Hurd's R. S., Chap. 86, ^36. 390 PROCKEDINGS AS CONSERVATOR. [cil. XV. able at the term of this honorable court, and on the-. -day thereof, A. D. i8..., and that upon a final hearing hereof your honor will cause a jury to be impanneled to try the question whether your petitioner is a fit person to have the care, custody and control of his property, and that upon such final hearing, your honor will cause to be entered an order, fully restoring your petitioner to all the rights and privileges enjoyed before the appointment of said conservatorship. And your petitioner, as he is in duty bound, will ever pray, etc. By , Attorney. Subscribed and sworn to before me this. ..day of , A. D. iS...., by the said , petitioner as aforesaid. , County Clerk. 38. Notice. — Notice of such intended application shall be given to the conservator ten days before the coiumenceinent of the term of the court to which the application shall be made.(^) A precipe for a summons should be filed wi|h said petition, and it will then be the duty of the clerk to issue a summons to the sheriff to execute. 39. Trial — judg^ient. — It shall be the duty of the court to which any such application, as provided in the foregoing section, is made, on proof that said conservator has been duly notified of such application, to cause a jury to be summoned to try the question whether said applicant is a fit person to have the care, custody and control of his or her property, and if the jury return in their verdict, that such person is a fit person to have the control of such property as aforesaid, then the court shall enter an order fully restoring such person to all the rights and privileges enjoyed before said conservator was appointed : Provided, that such conservator, so removed, shall be allowed a reasonable timo to settle his accounts as .such, and to pass over the money or property in his hand.s, and such removal shall not invalidate any contracts made in good faith by such conservator ^vhile acting as such : Provided further, that no application shall be entertain(.'d for the removal of any conserva- tor appointed for any person under the provisions of this act, within less than one year from such appointment, unless for neglect of duty or mismanagement of his trust.i^^) (i) Kurd's R. S., Chap. 85, ? 38. (2) Kurd's R. S., Chap. 86, g 39. CH. XV.] PROCEEDINGS AS CONSERVATOR. 391 ORDER REMOVING CONSERVATOR. State of Illinois, \ Of the term, A. D. i8..~ County, j • Of the Comity County Court. In the matter of the Conservator- "j ship of , alleged to be \ Petition for Removal of Conservator. Insane. j And now on this day, comes the said , the petitioner, by , his attorney, and the said , conservator, by , his attorney, and this cause coming on now to be heard, it is ordered that a jury be called, where- upon comes a jury of twelve good and lawful men, who having been duly examined, impanneled and sworn, and having heard all the evidence ad- duced in this cause, and the arguments of counsel and the instructions of the court, retire to consider of their verdict, and having duly considered thereof, return into open court their verdict, signed by the jurors in words and figures as follows, to-wit: "We, the jury, in the case of. vs , conservator of the said , find that the said is a fit person to have the care and custody and control of his property." It is therefore ordered : That said verdict be received and recorded, and that said jury be discharged, and that said be removed as conservator, and that the property of the said be restored to his care, custody and control, and that he be fully restored to all the rights and privileges enjoyed before said conservator was appointed. And it is further ordered, that said , as conservator as aforesaid, have until to settle up his accounts as such conservator, and that upon a final settlement of the same, he pay the costs of this proceeding. 40. Appeals. — Appeals shall be allowed to the circuit court from any order or judgment made or rendered under this act, upon the appellant giving such bond and security as shall be directed by the court ; but no appeal from an order removing a conservator shall in any wise affect such order until the same be reversed.(^) 41. Suits, collections, etc., by non-resident conserva- tors. — The conservator, guardian, curator or committee, of any non-resident idiot, lunatic, insane or distracted person, spendthrift or drunkard, appointed in any of the United Spates or territories, or any foreign country, in pursuance of the laws of any such state, territory or country, may commence and prosecute in his name as such conservator, guardian, curator or committee, suits for the re- covery of any real or personal property, or any interest therein in this state, belonging to any idiot, lunatic, insane or distracted per- son, spendthrift or drunkard, or for any injury to such property (i) Kurd's R. S., Chap. 86, I 40. 392 PROCEEDINGS AS CONSERVATOR. [CH. XV. in any of the courts of record in this state having jurisdiction in similar cases by persons in their own rights, and may collect, re- ceive and remove to his place of residence, any personal estate of his ward.(^) 42. Sale of real estate by non-resident conservator. — It shall be lawful for any such conservator, guardian, curator or conunittee, of any non-resident idiot, lunatic, insane or distracted person, spendthrift or drunkard, who shall obtain an order from the proper court in the state, territory or country in which such conservator, guardian, curator or committee was appointed, author- izing him to make application for the sale of his ward's real estate or personal property in this state, upon filing a certified copy of such order for record in the office of the clerk of the circuit court of the county in this state, in which the property or the major part thereof is situated, by petition to such court to obtain an order authorizing such conservator, guardian, curator or committee, to sell and transfer any such property or interest therein, belonging to any such idiot, lunatic, insane or distracted person, spendthrift or drunkard, and to make deeds and conveyances thereof; which deeds and conveyances, executed and acknowledged in pursuance of the laws of this state, or of the state, territory or country in which such conservator, guardian, curator or committee was appointed, shall be cifcctual in law and equity to pass to the grantee or grantees therein all the right, title and interest of such idiot, lunatic, insane or distracted person, spendthrift or drunkard therein. The court ordering the sale, may authorize any person to act as auctioneer of the property, but the deed shall be executed by the conservator, guardian, curator or committec.(^) 43. Notice of petition. — Notice of th3 time and place of presenting said petition to said circuit court shall be given by pub- lication in the nearest newspaper for four successive wecsks, the first of which i)ii!)llcations shall be at least forty days before the time fixed for the presentation of said petition, requesting all persons interested to show cause why the prayer of said petition should not be granted. 1^^) 44. Bond. — The said circuit court may, in its discretion, re- (i^ Kurd's R. S., Chap. 86, ? 41- (3) Hurd's R. S, Chap. 86, ^ 43. (2) Hurd's R. S., Chap. 86, 'i 42. CHT. XV ] PROCRKDINGS AS CONSERVATOR. 393 quire sncli conservator, curator, i^tiardian or committee, to file a bond, with sufficient securities, conditioned for tlic faithful applica- tion of the moneys which m.iy be received for any such pro])erty, for the benefit, and to tlie use of such idiot, lunatic, insane or dis- tracted ])erson, spendthrift or drunkard. (^) 45. Bond for Costs. — In all suits by non-resident conserva- tors, guardians, curators or committees, they shall give a bond for costs as in cases of other non-residents.(^) As before remarked, the provisions of this chapter are very sim- ilar to that of guardian and ward, and the forms will answer for both, substituting the word conservator for that of guardian. The form for settlement given for the use of the guardian, see page 272, may be used by the conservator ; so, too, the forms for inventory- ing the estate, see page 230, and for mortgaging real estate, see page 297 ; and for selling real estate, sec page 275; and for security and counter security, see page 321 ; and for removal of conservator for cause, etc., see page 313 ; and resignation of conservator, see page 310. The forms of })rocedure are similar, and by reference to those already given, a necessity for repeating them here will be ob- viated. The conservator, if he discliarge his duties well, finds that he has a task somewhat difficult, but it may be materially lessened, by always obtaining an order of the court in the transaction of his various duties, and in keeping an account of all he pays out and all that he receives, and by always giving, and especially always taking, receipts for any amount which he i)ays out. His duties are almost identical with those of the guardian, and, therefore, his com- pensation should be the same. But the compensation is discretion- ary with the court, and every case should be determined by the attending circumstances. He should file his reports at least once every year, at which time the work of the year is open to the inspection of the court, for its approval or rejection. (i) Hurd's R. S., Chap. 86, ?^ 44. (2) Kurd's R. S., Chap. 86, § 45. 394 PROCEEDINGS IN INSANITY. [CH. XVI. CHAPTER XVI. PROCEEDINGS IN INSANITY. 1. Petition — form of petition. 2. Writ — service— order of the county judge to the clerk — form of writ 3. Subpcenas— form of precipe for witnesses— form of subpoenas for witnesses. 4. Jury — trial — form of a venire for jury. 5. Verdict— form— form of the verdict of the jury. 6. Verdict recorded— order of committal— application— form of fina) order. 7. To which hospital— application. 8. Warrant to commit. 9. Form of warrant. 10. Indorsement — return. 11. Who not admitted — idiots discharged. 12. Temporary commitment. 13. Costs. 14. Who to pay expenses — sheriffs' fees. 15. Bond to furnish clothing — form of a bond to trustees of hospital. 16. Clothing. 17. Paupers — Duty of the county judge in regard to clothing. 18. Discharge of patient — notice — removal. 19. Non-resident patients. 20. Restoration to reason — discharge. 21. County hospital. 22. Trial by jury necessary. 23. Penalty. 1. Petition. — When any person is supposed to be insane or distracted, any near relative, or in case tliere be none, any respect- able person residing in the county, may petition the judge of the county court for proceedings to inquire into such alleged insanity or distraction. For the hearing of such application and proceed- ings thereon, the county court shall be considered as always open.(') The petition may be in form as follows : State of Illinois, "I In the Counfy Court, ss County, I •'•'• term, A. D. \S.. To the Hon , Judge of said Court: Your petitioner, , of saiil county, respectfully represents that. (x) Hurd's R. S., Ciiap. 85, l i. CH. XVr 1 PROCEKDINGS IN INSANITY. 395 of said county, is supposed to be insane or distracted; that your petitioner is of said ,and respectfully asks for proceedings touiquire into alleged insanity or distraction, according to law. By , his Attorney. A B. A B, being duly sworn, according to law, says that the matters and facts stated in said petition are true, in substance and in fact, as he verily believes. , County Clerk. 2. Writ — service. — Upon the filinj^ of such petition, tlie judge shall order the clerk of tlie court to issue a writ, directed to the sheriff or any constable, or to the person having the custody or cl large of the alleged insane or distracted person, unless he shall be brought before the court without such writ, requiring the alleged insane person to be brought before him at a time and place to be aj)pointed for the hearing of the matter. It shall be the duty of the officer or person to whom the writ is directed, to execute and return the same, and bring the alleged insane person before the court as directed in the writ.(^) ORDER OF THE COUNTY JUDGE TO THE CLERK. State of Illinois, \ ^^ t n /^ t r- j Countv I County Court. In the Matter of. , alleged to be Insane. Whereas, , of the county aforesaid, has duly filed in the county court of said county a petition, asking the judge of said court for proceed- ings to inquire into the alleged insanity or distraction of , of said coun- ty and state aforesaid. It is therefore, hereby ordered by the undersigned, judge of said court, that the clerk of said court issue a writ under the seal of said court, directed to , requiring the said person alleged to be in- sane or distracted, to be brought before said judge, at the office of the clerk of said court, in , in said county, at the hour of.. -o'clock in the. ..noon, on the. ..day of. , A. D. i8..., which time and place are appointed by said judge for the hearing of said matter. It is also ordered, that you cause to be issued a venire for a jury, as directed by the law, returnable at the same time and place, directed to the sheriff to execute. Witness my hand, this. ..day of. , A. D. i8... Judge. WRIT — INSANE. In the Matter of. , alleged to be Insane. State of Illinois, ) r 4i r^ , ^ ^ County M-^- In the County Court. The People of the State of Illinois, to , of said County, Greeting : Whereas, a petition has been duly filed in the office of the clerk of the (i) Kurd's R. S., Chap. 85, \ 2. 396 PROCEEDINGS IN INSANITY. [CH. XVI. county court of said county, by , of said county, askin^f the judge of said court for proceedings to inquire into tlie alleged insanity of. , of said county and state aforesaid. And whereas, upon the filing of said petition, the judge of said county court did order the clerk of said court to issue a writ requiring said person alleged to be insane, to be brought before him, the said judge, at the office of the clerk of said court, in , at the hour of.. .o'clock in the. ..noon, on the. ..day of. , A. D. 18... You are therefore, hereby commanded and required to bring said before said judge at the day, hour and place aforesaid. Hereof fail not. Witness, , Clerk of the said County Court, and the [Seal.] seal thereof, this. ..day of. , A. D. 18... , Clerk County Court. 3. SuBPCENAS. — The clerk shall also issue subpoenas for such witnesses as may be desired on behalf of the petitioner, or of the person alleged to be insane, to appear at the time fixed for the trial of the matter.(') The precipe to be filed for the witnesses, may be in form as follows : State of Illinois, \ j^^ ^;^^ ^^^^^^^ ^^^^,.^ County, J ■' In the Matter of , alleged to be Insane. The clerk of said court will please issue siibpcenas for and , witnesses for and on behalf of. , in said proceeding, directed to the sheriff to execute. By , his Attorney. To , Clerk of the County Court. The form of subpoena may be as follows : State of Illinois, 1 County, / • The People of the State of Illmois to the Sheriff of said County, Greeting . We command you to summon to appear before the county court of said county, at ,on the.-.day of..., A.D. iS-.., at. ..o'clock in the. ..noon, to testify and the truth to speak, in behalf of the People of said state, con- cerning the facts in the case of. , alleged to be insane, a cause now pending in said court, at the clerk's office, in the court house, at . And have you then and there this writ, with a return thereon, showing in what manner you have executed the same. W^itness, , Clerk of said court, and the seal thereof, at his [Seal.] office in , in said county, this.. ..day of , A. D. iS... , Clerk. (i) Kurd's R. S., Chap. 85, I 3. CH. XVI. ] PROCEEDINGS IX INSANITY. 397 4. Jury — triai.. — At the time fixed for the trial, a jury of six persons, one of whom sliall be a physician, shall be impanueled to try the case. The case shall be tried in the presence of the per- son alleged to be insane, who shall have the right to be assisted by counsel, and may challenge jurors as in civil cases. The court may, for good cause, continue the case from time to time.(^) The clerk may issue his venire for a jury in form as follows: State of Illinois, ) County, ) The People of the State of Illitiois to the Sheriff of said County, Greeting : You are commanded forthwith to summon six suitable persons, at least one of whom shall be a phj-sician, and the others lawful jurors, to assemble before the county court of said county, at , on the-. -day of. , A. D. i8..., at-. -o'clock in the---noon, to serve as jurors in the case hereinafter named, and as a jury to be sworn to try the fact of the sanity or insanity of- , of said county, alleged to be insane, in the matter of the applica- tion of. , to have said alleged insane person comtniued to the Illinois State Hospital for the Insane, now pending in said court. Hereof fail not, and ot this writ make due service and return. Witness, , Clerk of said court, and the seal thereof, at [Seal.] aforesaid, this-. .day of , A. D. i8... , Clerk. 5. Verdict — form. — After hearing tlie evidence, the jury shall render their verdict in writing, signed by them, which shall embody the substantial facts shown by the evidence, which verdict may be substantially in the following form : State of Illinois, 1 County, j In the Matter of , alleged to be Insane. We, the undersigned, jurors in the case of- , alleged to be insane, having heard the evidence in the case, are satisfied that said is insane, and a fit person to be sent to the Illinois State Hospital for the Insane ; that-he is a resident of the State of Illinois, and county of. , that h... age is , that h... disease is of. duration; that the cause is supposed to be..,. , that the disease is, witli h hereditary; that.. he is not subject to epilepsy, and that..he is free from vermin or any infectious disease, and that. -he is-.. a pauper. Given under our hands, this-.-day of- , A. D. iS---(2) ,M.D. (i) Hurd's R S., Chap. ^5, ? 4. (2) Hurd's F 5, Cliap. 85, ? 5. 25 398 proceedings in insanity. [ch. xvi. 6. Verdict recorded — order of committal — applica- tion. — Upon the return of the verdict, the same shall be recorded at large by the clerk, and if" it appears that the person is insane, and is a fit person to be sent to a state hospital for the insane, the court shall enter an order that the insane person be committed to a state hospital for the insane, and thereupon it shall be the duty of the clerk of the court to make application to the superintendent of some one of the state hospitals for the insane for the admission of such insane person.(') The order may be in form as follows : State of Illinois, \ In the County Court, County, i^^- ,A.n.i8.... In the Matter of , alleged to be Insane. And now on this day, came the said petitioner, , by A B, his at- torney, also comes the said .alleged to be insane, in charge of the , and the court appoints , an attorney of said court, to defend the inter- est of the said , alleged to be insane, and to make for h...a suitable defense. Whereupon comes the sheriff of county, Illinois, with a jury of six good and lawful men, to-wit : [//ere insert the jurors'' names.l One of whom is a physician, and this cause coming on now to be heard, before the court and jury impanneled as aforesaid, the evidence was all submitted, argument of counsel heard, and instructions given by the court, whereupon the jury retired to consider their verdict, and after due consid- eration thereof, returned into open court, their verdict, in form as follows : [//ere msert copy of the verdict of the jury in futt.l Whereupon said ver- dict is received and ordered to be recorded, and said jury discharged. It is, therefore, ordered by the court, that who has been found to be a fit person for the insane hospital, be committed to the insane hospital of the State of Illinois, at , and that the clerk of this court make appli- cation to the superintendent tliereof immediately. It is further ordered, that pay the costs of this proceeding, to be taxed at dollars. 7. To which hospital — appliCxVtiox. — If such insane per- son is a pauper, the application shall be first made to the nearest hospital, but if he be not a paupar, application shall be made to such one of the state hospitals for the insane, as the relatives or friends of the patient shall desire. In any case, if, on account of the crowded condition of any one of the hos[)itals, or ibr other good reason, the patient cannot be received therein, or it is not desirable (l) Hurd's R. S., <_"hap. S5, I 6. CH. XVI.] PROCEEDINGS IN INSANITY. 399 to commit him thereto, he may be committed to any other of said hospitals. Upon receiving any such application, the superintend- ent shall immediately inform the clerk whether the patient can be received, and if so, at what time; and if not, shall state the reason why.(i) The application made by the clerk usually consists in sending a certified copy of the order made and entered in the proceeding, with a request that the patient may be admitted to the hospital to which said application is made. 8. Warrant to coiiMiT. — Upon receiving notice at what time the patient will be received, the clerk shall, in due season for the conveyance of the person to the hospital by the appointed time, issue a warrant, directed to the sheriff or any other suitable person, preferring some relative of the insane person when desired, com- manding him to arrest such insane person and convey him to the hospital ; and if the clerk is satisfied that it is necessary, he may authorize an assistant to be employed. (^) 9. The warrant may be substantially as folloAvs : State of Illinois, "( County, J • The People of the State of Illinois, to You are hereby commanded forthwith to arrest , who has been declared to be insane, and convey h... to the Illinois Hospital for the Insane, and you are hereby authorized to take to your aid an assistant, if deemed necessary, and of this warrant make due return to this office with an endorsement thereon, in what manner you shall have executed the same. Witness my hand and the seal of our said County Court, [Seal.] at , this. ..day of. , A. D. i8... , Clerk County Court. (3) 10. INDORSE^[EXT — RETURN. — Upon receiving the patient, the superintendent shall indorse upon said warrant a receipt as follows : Illinois Hospital for the Insane. Received, this-. .day of. , A. D. 18..., the patient named in the with- in A'arrant. , Superintendent. This warrant, with a receipt thereon, shall be returned to the clerk, to be filed by him with the other papers relating to the ca.se.(*) (i) Hurd's R. S., Chap. 85, ? 7. (3) Hurd's R. S., Chap. 85, I 9. (2) Hurd's R. S., Chap. 85, ^8. 14- Hurd's R. S., Chap. 85, g 10. 400 PROCEEDINGS IN INSANITY. [CH. XVI. 11. Who not admitted — idiots discharged. — No person having any contagious or infections disease, and no idiot, shall be admitted to either of the state hospitals. When the trustees and superintendent shall find that an idiot has been received into the hospital, they may discharge hiin.(/j 12. Temporauy commitment. — If the court shall deem it necessary, ])ending proceedings and previous to verdict, or after verdict and i)ending admission to the hospital, temporarily to re- strain of his liberty, the person alleged to be insane, then the court shall make such order in that behalf as the case may require, and the same being entered of record, a copy thereof certified by the clerk, shall authorize such person to be temporarily detained by the sherilf, jailor or other suitable person, to whom the same shall be directed.(^^) 13. Co,STS. — When a person, not a pauper, is alleged to be in- sane, and is found by the jury not to be insane, the costs of the proceeding, including the fees of the jury, shall be paid by the pe- titioner, and judgment may be awarded against him therefor. If such person is found to be insane, such costs shall be paid by his guardian, conservator, or relatives, as the court may direct. If the l)erson alleged to be insane is a pauper, the costs of the proceeding, including the fees of the jury, shall be paid out of the county treas- ury. Provided, if such pauper is fnind not to be insane, the court may, in its discretion, award the costs against the petitioner.C'^) 14. Who to pay expenses — sheriff's fees. — The expense of conveying a pauper to the hospital, shall be paid by the county in which he resides, and that of any other patient, by his guardian, conservator or relatives; and in no case, shall any such expense be ])aid by the state, or out of any funds for the insane. The fees of the sheriff for conveying any person to a hospital, shall be the same as for conveying convicts to the penitentiary. C*) 15. Bond to furnish clothing. — If the person be not a pauper, then one or more persons, relatives or friends of the patient, shall, upon his admiss'oii into the hospital, become responsible to the trustees for finding the patient in clothes, and removing him (i^ Kurd's R. S., Chap. 85, ? 11. (3) Kurd's R. S., Chap. 85, ? 13. (2) Kurd's R. S., Chap. 85, g 12. (4) Kurd's R. S., Chap. 85, 'i 14. CH. XVI.] ' PROCEEDINGS IN INSANITY. 401 ^vhen required ; and shall execute a bond conditioned as follows, viz. : Know all men by these presents, that we, and , of the coun- ty of. , and State of Illinois, are held and firmly bound unto the Trus- tees of the Hospital for the Insane, in the sum of one hundred dollars, for the payment of which we jointly and severally bind ourselves firmly by these presents. The condition of this obligation is such, that whereas , an insane person, of the county and state aforesaid, has been admitted as a patient into the Hospital for the Insane: Now, therefore, if we shall find said patient in suitable and sufficient clothing, while..he may remain in said in- stitution, and shall promptly pay for such articles of clothing as it may be necessary to procure for said , at the hospital , and shall remove h...from said hospital, when required by the trustees to do so, then this ob- ligation to be void, otherwise to remain in full force. Witness our hands and seals, this. .-day of. , A. D. i8... , [Seal.] [Seal.] State of Illinois, \ County, /■^•^• I, , Clerk of the County Court for said county, do certify that who are named in, and whose names are, in their own proper handwriting, subscribed to the foregoing bond, have been approved as sureties therein, and as being good and sufficient, to meet and duly respond to the condi- tions of said bond, by said court, as appears by the order of said court, duly entered on the records of said court in my office remaining. Given under my hand and the seal of said court, at my [Seal.] office in , this-.-day of. , A. D. , Clerk. 16. Clothing. — The clothing to be funiislied each patient, upon being sent to the hospital, shall not be less than the folIowinuee to comply with act. — Any such superintendent failing to comply with the foregoing section shall be liable to a fine of one hundred dolhirs for each failure, to be col- lected by suit before a justice of the peace of the county wherein such hospital is situate, on complaint of such clerk of the county court, or other person having relatives or friends confined in said hospital.(^)* (i) Kurd's R. S., Chap. 85, § 31-32, 930- *NoTE.— Prior to this amendment (§ aO) there was no right to apical given to the person adjudged insane. Remedy held to be by h"hrt her, it was held, that a court of chancery might appoint a consiTvator for her estate, held in her own right.(') Upon the application for the appointment of a guardian to one rep- resented as non compos mentis, the court is not coutiujd to a trial by the inspection and examination of such person, but may admit o:lier evidence.^') A verdict in proceedings upon a commission of lunacy, miy be set aside as against the weight of evidence, and a new comuiissiou ordered.''"; An inquisition of lunacy is prima facie evidence only of mental incapacity, as to one who was n^t a party to the proceedings.(") It (i) Coleman vs. Commissioners of Lunatic Asylum, 5 15. Mon. (Ky.) 239. (2) Drew's Appeal 57 N. H., 181. (3) Grant vs. Green, 41 Iowa, 88. (4) J^e Carmichael, 36 A!a., 514. (5) Morey's Appeal, 57 N. H., 54. (6) Norwood vs. Hardy, 17 Ga., 595. (7) Dowell vs. Jacks, 5 Jones, N. C. Eq., 417. (8) Davenport vs. Davenport, 5 Allen, 464. (9) Brigham vs. Bri'^ham. 12 Mass., 505. (10) Matter of Lawrence, 28 N.J. Eq., 331. ^. , , , ^ (11) Hirscli vs. Trainer, 3 Abb., (N. Y.)Cas., 274; Field vs. Lucas, 21 Ga., 447 ; Hopson vs. Boyd, 6 15. Mon., (Ky.) 296; Clark vs. Trail, i Mete, (Ky.) 35 ; Lucas vs. Perkins, 23 Ga., 267. CH. XVir] PROCREDIVGS rx INSANITY — CONSERVATOR. 409 i.s never con-lnsive a;2jainst any person not a party to it;(^) for sanity is tria!)le anew as ollon as the question arises, as the verdiet is effective only in the suit in which it is rendered. ^^) Under the statutes of Illinois, and even Ijefore the married woman's act of 1861, the county court may appoint a conservator lor the estate of a married woman.(^) • 2. Cannot be questioned coli^ateratxy. — Letters of o:uard- ianship of a lunatic, wheu issued by a probate court, can not be questioned in a collateral proceed! ny;.(*) And where a guardian of an insane [)ers(jn has been ai)pointed by the county court, and under tlij sanction of the court, has sold the land of such insane jierson, the validity of this sale can not be questioned in a collateral pro- ceeding, on the ground that notice of th^ inquisition was not given to the alleged lunatic.(^j The findings of the county court are con- clusive in all collateral proceedings. (*'j 3. Their liability when appointed. — A guardian, ap- pointed under the act relative to common drunkards, is not liable to an action upon a note made by the drunkard before the guard- ian's api)ointmcnt.;''') 4. LiAr>iLiTY for interest. — A guardian of an insane person, who allows his ward's money to lie idle in his hands for an unrea- sonable time, or mingles the same with his o\vn money, is charge- able with interest thereon. y^j 5. How insanity is ascertained. — The only legal test of insanity is delusion; and this consists in a belief of facts which no rational person would believe.(^) The law presumes that every adult man is sane, and possessed of the absolute right to sell and dispose of Ids prop^a-ty in whatever way he may choose ; his will in every case standing as the reason of his conduct, and the burden of (i) Den vs. Clark, lo N. J. L., (5 Hals.1 217. {2) Emery vs. Hoyt, 46 111., 25S. (3) Gardner vs. Maroney, 95 111., 552. (4) Warner vs. Wilson, 4 Cal., 310; Wing vs. Dodge, So 111., 564. (5) Dutcher vs. Hill, 29 Mo., 271 ; Gardner vs. Maroney, supra ; Dodge vs. Coie, 97 111., 338. (6) Wing vs. Dodge, supra. (7) Coombs vs. lanvier, 31 N. J. L., 240. (8) .Stumph vs. Pfeiffer, 58 Ind., 472. (9) Matter of Forman, 54 P.arb., (N. Y.) 274. 410 PROCEEDINGS tN INSANITY — CONSERVATOR. [CH. XVII. proving insanity lies on the party who asserts it.(') Even in the case of suicide, insanity will not be presuraed.f) But evidence of hereditary taint is competent to corroborate direct proof.i^^) Every man will be presumed to be sane, until the conti-ary is proved, and the burden then of proof lies upon the party who alleges in- sanity ;(*) and this presumption will continue until inquest found, when, perhaps, the presumption is reversed until rebutted by evi- dence that sanity has returned. (^) Never until the disease mani- fests its presence, can we infer its existence.(^) 6. Who are deemed insane. — So long as a person is pos- sessed of the requisite mental faculties to transact rationally the ordinary affairs of life, he will be deemed sane, and will not be relieved from the responsibilities that rest on the ordinary citizeu.C') A person deaf and dumb from birth, is not, on that account, to be deemed non compos mentis;^) as it does not follow necessarily that a deaf mute is an idiot or non compos mentisJ^) Occasional oddity or hypochondria, does not amount to in- sanity.(^'') 7. Evidence. — The fact of insanity is established by the opin- ions of those, who, from habits of daily or common intercourse with, or observation of such person, can make an intelligent comparison of his mental manifestations with his conduct when he was admit- ted to enjoy the full use of his natural faculties, together with the facts upon which such opinions are founded ;(^^) and in proving in- sauitv of a party making a contract, evidence of ih^d state of his mind before, at, and after, such time, is admissible.'J^) The law presumes sanity, and, when insanity has been once proved, it pre- (i) Hall vs. Un£?er, 2 Abb., (U. S.) 507- .. (2) Coffey vs. Home Life Ins. Co., 44 How., (N.M.) Pr., 481. (3) Smith vs. Kramer, 5 Pa. Law. J. Rep., 226. t (4) Menkins vs. Lightner, iS 111., 2S2 ; Jackson vs. Van Dusen, 5 Johns., 154; Grabill vs. Barr, 5 Penn. St. R., 441. (5) Titcomb vs. Vantyle, 84 111., 371. (6) Snow vs. Penton, 28 111., 306. (7) Titcomb vs. Van Tyle, supra. (8) IJrower vs. Fisher, 4 Johns. (N. Y.) Ch., 441 ; Markle vs. Markle, 4 Johns. (N. Y.) Ch., 168. (9) Christmas vs. Mitchell, 3 Ired., N. C. L., 535. (10) Hawe vs. State, 11 Neb., 537. (11) Beller vs. Jones, 22 Ark., 92. (12) Grant vs. Thompson, 4 Conn., 203; Peaslee vs. Robbins, 3 Mete, (Mass.) 164. CH. XVir.] PROCEEDINGS IN INSANITY CONSERVATOR. 411 sumes its continuance. (^) But it can not bo ])rcsumo(l against proof that a person is insane, from the fact that his mother wasso.(^j The conversations of a party upon any subject tending to show tlie state of his mind, are admissible in evidence on the question of sanity.(^) And the opinion of a non-professional witness in rela- tion thereto, derived from personal observations of, and conversa- tions with, such person, is admissible in evideiic;; in connection with the facts upon which the opinion is based. (*) But, the opinion of a witness that the defendant ^vas incompetent to manage his own affairs and take care of himself, is inadmissible,;^; for the reason, that it fails to state the grounds upon which the o})inion was formed.(^) Witnesses who are not experts, may testify to their opinions concerning sanity, based on their own observations ;("') but, whether experts or not, they nmst 'always state the facts ujiou which their opinions are based. ;^) 8. Effect of finding. — After a person has been found to be of unsound mind, he should, so long as the unsoundness exist, be regarded as civilly dead.(^) And while the law presumes every man to be sane, when insanity is once proved to exist, the law presumes it still to continue.(''') A discharge from the insane asylum, because the officers adjudged the patient restored, would be at least prima facie evidence of such restoration. ('') And, so a person under guardianship, as non compos mentis, if his reason be restored, is competent to make a will, although the letters of guardianship are unrepealed. (^^) After a person has been found insane, and a conservator has (i) Myatt vs. Walker, 44 HI-- 4^5; Achey vs. Stephens, 8 Ind., 411 ; Cook vs. Cook, 53 Barb., (N. Y.) iSo. (2) Snow vs. Benton, 28 111., 306. (3) Mollins vs. Cottrell, 41 Miss., 291. (4) Cram vs. Cram, 33 Vt., 15. (5) Re Carmichael, 36 Ala., 514. (6) Jones vs. Perkins, 5 B.Mon., (Ky.) 222. (7) Beaubein vs. Cicotte. 12 Mich., 459. (8) White vs. Bailey, 10 Mich., 155. (9) McNees vs. Thompson, 5 Bush., (Ky.) 686. (10) Menkins vs. Lii;htner, 18 111., 282; State vs. Reddick, 7 Kansas, 143; Carpenter vs. Carpenter, 8 Bush., (Ky.) 283 ; Aurentz vs. Anderson, 3 I'i'ltsh.i (Pa.) 310; Haynes vs. Svvann, 6 Heisk., (Tenn.) 560: Chica-ranted to, the guardian of a minor, so far as the same are t^plicab'Q.(^) The ^'aservater has a right to enter the dwelling house of his ward^ witiiout hU permission, and against his will, to take an in- ventory cf the property of the ward, or to attend to any other duties of his office that require such entry.(^) One of two guardians of a spendthrift is competent to receive payment of a debt due to the ward, and his receipt i?> prima facie evidence of the payment.(*j Where a trust is already created by a lunatic, the committee of his person and estate has no right to the control of his property ;("} but they have a right to demand and receive the annual interest and income thereof from the trustees.('') Guardians of spendthrifts, have no control of the persons of their wards.(^) A guardian of an idiot appointed in another state, is but the guardian of the person and estate of the idiot within that state; he has no power over the estate of the infant in this state, by virtue of such appointmeut.(^) 10. Custody and support. — The guardian of an insane per- son has general power to determine and to change the domicile of his ward,(*) A m:'n of wealth, and having no family dependent upon him, under purdianship as insane, should be allowed those luxui-ies wiiich he de&jres and caci enjoy, which are unobjectionable in themselves, (i) MxCter of L^-tie, 3 Pai,a:e, (N, Y.) 251. ^2) Alexander vs. A'.-xauder, « Ala., 796; Dearman vs. Dearnian, 5 Ala., 202; Stumph vs. Pfeiffer, 58 Ind., 472. (3) State vs. Hyde, 29 Cjnn., 564. (4) Raymond vs. Wyman, iS Me., 385. (5) Wilson's Estate, 2 Pa. St., 325. (6) Earp's Estate, 2 Pars., (Pa.) Stl. Cas., 178. (7) Boyden vs. Boyden, 5 Mass., 427. (81 Rodjters vs. McLean, 31 Barb., (N. Y.) 304; Boyce vs. Warren, 2 Dev. &B., (N. C.) L., 152. (9) Anderson vs. Anderson, 42 Vt., 350. CH. XVIl] PROCEEDINGS IN INSANITY — CONSERVATOR. 413 and would be proper and reasonable expenditures for a sane man in a similar position. (^) An insane person having property adequate to his support, is not a pauper, and the county is not liable for the support of such person, nor is the city in which he resides, liable for his support.('*) 11. Claims against the estate of the insane. — The fact that one has been adjudged a lunatic, or of unsound mind, does not abate any right of action against him upon his contracts previously made ; but actions may be commenced and prosecuted against him as against other persons, and equity will not interfere.(^) No claim can be allowed against the estate of an insane person in the hands of his conservator, by the county court, as the proper I'emedy of the creditor is by suit against the conservator as his rep- resentative, under which the creditor may have any property of the insane person sold under execution. (*) Nor do the creditors of a lunatic, who obtain judgment after inquisition found, thereby ac- quire any right of priority over other creditors.(^) 12. Commissions. — The question of compensation of the com- mittee of a lunatic, is not governed by the statute prescribing commissions of executors and guardians, but is to be determined l)y the court having custody of the estate, in view of its value and situation, and of the attending circumstances.(^) When charged with annual interest on money in his account with the ward, he is entitled to his commissions upon such interest.^) A wife appointed conservator of her insane husband, can not recover com2)ensation for Iier services in- that capacity from his estate.(*) 13. Voluntary support. — One who voluntarily expends money in the support of a lunatic, can not recover for such ex|)end- iture, either against the lunatic or his committee.^) 14. — Suits affecting the person and property of lu- natics. — All suits affecting the person or property of a lunatic, (i) May vs. May, 109 Mass., 252. (2) Tlie City of Alton vs. County of Madison, 21 111., 115; Smith vs. The People Ex Rel, 65 111., 375. (3) .Stij^ers vs. Brent, 50 Md., 214. (4) Morgan vs. Hoyt, 69 111., 4S9. (51 Wright's Appeal, 8 Pa. St., 57. ^6) Matter of Colah, 6 Daly, (N. Y.) 51. (7) Hird vs. Bird, 21 Gratt., (Va.) 712. (8) Grant vs. Green, 41 Iowa, 88. (9) Hehn vs. Helm, 23 Pa. St., 415 26 414 PROCEEDINGS IN INSANITY CONSERVATOR [CH. XVII. must be prosecuted in liis name, except those which are authorized by statute to be brouj^ht in the name of his conservator.(') The guardian of a lunatic is authorized and may sue in his own name as guardian, in trover, for the property of the hiiiatic;(^) and where a promissory note is given to a guardian of an insane person as guardian, he may institute suit upon it in his own name.(^) A lunatic whose interests are sought to be affected by a decree, must be made party to a suit, and, if a defendant, must answer by a conservator; and if he has none, the court will appoint a guard- ian ad litem to defend the suit, and answer for the lunatic.('') The guardian of a lunatic can not bring an action of ejectment, nor any other action at law, in his own name ;(^) but a suit on be- half of a lunatic, brought in the name of his guardian, as follows, viz : '' A B, Guardian of B C," (the lunatic,) was held to be regu- lar,(*^) When the guardian of an insane jierson sues in his own name, the complaint .should show that the right of action is in the insane person, and should not allege the cause of action to be in the guard ian.C) Until the appointment and qualification of a conservator for an insane person, a suit may be maintained in such insane person's name for the recovery of a debt due him.(^) Where a conservator of an idiot, on his removal from office and settlement with the court, is ordered to pay over the balance in his hands to his successor, and the latter is also removed before the money is paid, and another appointed in his place, the latter may maintain an action on the bond of the first for non-payment, as the latter is authorized to receive the money. (^j Where a party is unal)le, in consequence of mental weakness, to protect himself, equity will lend its aid to see that no injustice may be done. It will protect such party against his ow;i acts, as well (i) McKillip vs. IMcKillip, 8 Barb., (N. Y.) 552 ; Reed vs. Wilson, 13 Mo., 28. (2) Field vs. Lucas, 21 Ga., 447. (3) Nickerson vs. Gilliam, 29 Mo., 456. (4) Harrison vs. Rowan, 4 Wash., 202 ; Sunday vs. Gordon, Blatchf. & H., Adm., 569. (5) Brooks vs. Brooks, 3 Ired. (N. C) L., 3S9. (6) Shaw vs. Burney, i Ired. (N. C.) L., 148 (7) Bearss vs. Montgonierv, 46 Ind., 544. (8) Chicago & Paciiic R. R. vs. Munger, 78 111., 300. (9) Richardson vs. People, 85 111., 495. CII XVII.] PROCEKDINGS IN INSANITY — CONSEHVATOIJ. 415 as those of others, done in his name. A bill filed in the name of an insane wife against her husband for a divorce, while she is in close confinement, she not beino; ca])ab]e of giving consent, the proceed- ings under it are void, and may all be set aside on bill filed by her conservator. Whether there be fraud, in fact, or not, the law will presume it, and that will vitiate the decree.^') 15. Sale of real estate by conservator. — The petition to be filed by a conservator of this state, must show the facts and specify the purposes for which the sale is sought, and these must be for one or more of the objects named in the statute. But where the a])plicatiou is made by a non-residait conservator or guardian of an insane person, the law does not require the petition to state the ])urposes for which the property is to be sold. It is deemed sufficient to confer jurisdiction for the petition to show that the court of the state where the conservator resides, has required the sale, without reference to the application of the proceeds. \^^) Notice published in a daily newspaper, three insertions in each successive week, the first being not less than thirty days before the l)resentation of the petition, of the time and place of presenting the [)etitiou, requesting all persons interested to show cause Avhy the prayer of the petition shall not be granted, is sufficient to give the court jurisdiction on an application by a non-resitleut conservator for the sale of real estate. (^) Conveyances by conservators, are, in no sense, to be regarded as conveyances by the lunatic. They are conveyances made by the law for the benefit of the lunatic, and are cA,ualogous to conveyances l)y guardians and administrators. C*) The acts in regard to convey- aucies by married women, have no relation whatever to conveyances by conservators. The latter ai e governed >.ntirely by the statute in relation to idiots and lunatics. /'j 16. Contracts. — After the finding of Ji inquisition declaring the iuoonipeteuey of a lunatic i»r u. Mutual drunkard, and until he is permitted by the coui't to t:s»at:i^ coiivrol of liis property, all gifts, (i) Bradford vs. Abend, Si^ II... -jt. 1 2) Win^ vs. Dodge, 80 Hi., 5^.;., ,(4) Gardner vs. Maroney, Q5 ill., 552. <5j lb ; Guardianship of Eli:;a Fcgan .1.5 Ca*!., 176; Drew's Appeal, 57 416 PROCEEDINGS IN INSANITY CONSERVATOR. [CH. XVII. bonds, or contracts, made by him are void.(^) And this is true, even though proved to be at the time j)erfectly sober, and compe- tent to transact business.(^) In many forms of insanity, the capacity to transact is entirely unaffected, and in such cases, tlie fact of insanity can not be set up to avoid business transactions. (^) If the party alleged to be in- sane, has received all the benefit from a sale, and had sufficient capacity to comprehend the act, he is estopped from denying its validity.^) Where no conservator has been appointed, although the person may have been adjudged insane, if he is in the management of his business, and there is nothing about his aj^pearance to indicate his incapacity to contract, if he purchases an article at a fair and reasonable price, necessary and useful in his business, and the seller have no notice of his being adjudged insane, he will be liable to pay the price he agreed to pay, and it will be error to enjoin a judgment on a note given for the price. (^^) And so, a contract made in good faith, by one apparently in sound mind, will not be set aside by him or his representative, after the subject matter thereof can not be restored. (^) Where a conveyance is set aside on the ground of insanity or lunacy of the grantor, and an account taken, the grantee, having purchased in good faith, without the knowledge of the alleged insanity, will be entitled to be reimbursed that which he has paid on the same. The consideration must be returned be- fore the conveyance can be avoided. And if the contract was fair and made in good faith, and is executed and completed, and the property which is the subject matter of the contract can not be restored, so as to put the parties in the same place, courts have held, that such contracts can not be set aside, either by the alleged lunatic or those who represent him.(") A court of equity, when its jurisdiction is invoked to set aside deeds and contracts of a per- son on the ground of insanity, acts upon equitable principles. It is (i) L'Amoureaux vs. Crosby, 2 Paige, (N. Y.) 422; Griswold vs. Miller, 15 Barb., (N. Y.) 520. {2) Wadsworth vs. Sherman, 14 Piarb., 169. (3) Searle vs. Galbraith, 73 111., 269. (4) Miller vs. Craig, 36 111., 109; Searle vs. Gai raith, supra. (5) McCormick vs. Littler, 85 111., 62. ' (6) Scanlan vs. Cobb, 85 111., 296. (7) lb- CII. XVII.] PROCEEDINGS IN INSANITY — CONSEUVATOR. 417 by no means a matter of course for a court of equity to set aside and declare- void the act of a lunatic, executed during lunacy. It does so in no case, except on ec^uitable terms. He who seeks equity, must do equity.(^) A great many of the acts done, and contracts made, by lunatics, are void, while others are only voidable : Thus a contract for the sale of land, made by one who had been adjudged a lunatic, \^ absolutely void, and no action can be maintained to enforce it.(2) So, too, a power of attorney to sell lands, given by a lunatic, is void, and not merely voidable.(^) A deed, executed by a person under conservatorship, is void, even though it be executed with the consent of the conservator ;{*) and it is the duty of the conservator to take measures to s(!t aside a deed made by his insane grantor, after his appf)intment.(-^) But the deed of an insane grant- or, not under guardianship, is voidable only.C') The evidence showing the insanity at the time of the execution of the deed, must preponderate, or the legal presumption in favor of sanity, will sus- tain the act;(^) for sanity being the rule, and insanity the exception, to destroy the binding effect of the deed, the evidence showing in- sanity, must decidedly preponderate. In chancery cases, involving questions of insanity, an issue should be formed upon the question and submitted to a jury.(^) The want of absohitc and perfect soundness of mind, doss not necessarily affect the capacity to make a valid conveyance, provided the mind is still capable of fully com- prehending the import of the act.(^) A deed can not be impeached on the ground that the grantor, at the time of the execution, was a monomaniac on the subject of religion. (^'') Where a person, subject to temporary insanity, in a lucid inter- val, sold property for a full price, for the payment of urgent debts, he acting under the advice and counsel of friends, the sale will not (i) Canfield vs. Fairbanks, 63 Darb., (N. Y.) 461. (2) Fitzhugh vs. Wilcox, 12 JJarb., (N. Y.) 235. (3) Dexter vs. liall, 15 Wall., 9 (4) Griswold vs. Butler, 3 Conn.. 227; Van Diisen vs. Sweet, 51 N. Y., 378; Elston vs. Jasper, 45 Texas, 409; Nichol vs. Thomas, 53 Ind., 42 ; Mohr vs. Tulip, 40 Wis., 66. (5) Kilber vs. Myrick, 12 Florida, 419. (6) Wait vs. Maxwell, 5 Pick., (Mass.) 217. (7) Lilly vs. Wag.^oner, 27 111., 395; Myatt vs. Walker, 44 111., 485. (8) Myatt vs. Walker, supra; Titcomi; vs. Vantyle, 84 111., 371. (9) Miller vs. Crai.-^, 36 111., 109; Speers vs. Sewell, 4 Hush., (Ky.) 239; Harvey vs. Hobson, 55 Maine, 256; Dennett vs. Dennett, 44 N. H., 531. (loj Burgess vs. Pollock, 53 Iowa, 273. 418 PROCEEDINGS IN INSANITY — CONSERVATOR, [cil. XVII. I)c set aside ;/) for a oonti-act entered into duriug the lucid inter- vals of oiic wiio is a luiuitic, is valid.(^) The tenn hic'd interval, implies that the noi'mal condition of tiie person is insanity ; and the burden of proving that a contract was made durini;' a hieid interval, is on the party seeking perform- ance of tlie contract. (^) When the mind is so deranged, that a person can not compre- iiend and understand the effect and consequences of an act, or busi- ness in vtl;I/h he may be engaged, the law will relieve him from his acts.C*) The vohmtavy conveyance by a father, of all his property to a person not his relative, the father being old and in a state of dotage, may l)e set aside at the instance of his children after his dealh jJ'J and the i)arty signing a deed or other instrument, or any pors()!i claiming under him, may show that, at the time such deed, or instrument was signed, he was of insane mind.(^) Promissory notes will be set aside on the ground of mental in- capacity of the maker, where thei'c appears such weakness of mind as to incapacitate the party to guu'd himself against imposition and undue influence.(') And where the consideration is very inade- quate, a court of equity or an impartial jury will closely scrutinize the facts, and will give weight to slight evidence of imposition and eircuinvention, when one of the parties is of weak intellect.^') An insane person is not bound by his contract of suretyship, even though the creditor accepted him as surety wdthout knowledge of his inca[)acity.('') A lunatic can not make a notcC") So, too, the transfer of negotiable paper by him is vo:d.('') Contracts with Innatics are not all absolutely void; but such as are fairly made (i) Jones vs. Perkins, 5 B. Men., (Ky.) 222. (2 Lilly vs. Wa;^,L;oiier, 27 111., 395; McCormick vs. Littler, 85 111., 62. (3) l-:mery vs. Floyt, 46 111., 25S. (4) Titcomb vs. Vaiityle, 84 111., 371. (5) Keible vs. Cum.n.niji, 5 Hayvv., (Tenn.) 43 ; Parris vs. Cobb., 5 Rich., S. C. Ec]., 450. (6) Ballew vs. Clark, 2 Ired. (N. C.) L., 23 ; Bensell vs. Chancellor, 5 Whart., (Pa.) 371. (7) Johnson vs. Chadvvell, 8 Humpli., (Tenn.) 145; Beller vs. Jones, 22 Ark., 92. (8) iMcFadden vs. Vincent, 21 Texas, 47; Hale vs. Brown, 11 Ala., 87; Jam2S vs. Lin ; Ion, 7 B. Mon., (Ky.) 193 ; Wilson vs. OUlliani, 12 B. Mon.,55. (9) Van Patton vs. Beals, 46 Iowa, 62. (10) Taylor vs. Dudley, 5 Dana. (Ky.) 308. (11; Hannahs vs. Sneldon, 20 Mich., 278. CH. XVII.] PROCEEDINGS IN INSANITY — CONSERVATOR. 419 with them for necessaries, or things snitable to their eondition and iiabits of life, will be sustained. (^) And where no undue advant- age is taken, contracts with a person of unsound mind, are held valid.(^) But if it appear that one of the parties was so overreached while in such a mental condition from the use of alcoholic spirits, as to make him an easy victim, the settlement will not be conclusive n[)on the party so overreached. (^) For a party will be protected against his own acts, while in a state of insanity, even if brought on by drunkenness.C*) Mental incapacity at the time of contracting, produced by di-unkcnness or any other cause, is a good defense against the con- tract, whether it be by deed or parol ;(^) and relief may be granted against acts done by a party who is so inebriated as to be incapable of contracting, or who, from the effects of inebriation, continues in- capable.('') 17. Criminal responsibility. — The law presumes persojis of full age to be sane and responsible agents, and this presumption stands until overcome by evidence.!'^) The old rule was, that it must be shown that the defendant was insane, and not responsible for his acts at the time the deed was committed ; for, the presump- tion being, that all men are of sufficient capacity to be responsible for crime, therefore, the defendant must establish his insanity .(^j And, in some states, it has been held, that if a defendant sets up insanity as a defense, he must es!:ablish it beyond a reasonable (loubt.y^) The burden of proof, to establish the insanity of one who has committed a criminal act, is upon the accused;/"; l)ut in Illi- nois, as well as in quite a number, if not majority of all the states, (i) Pearl vs. McDowell, 3 J. J. Marsh, (Ky.) 658; Skidmore vs. Roinaine, 2 Bradf., N. Y.) 122; Grouse vs. Holman, 19 Ind., 30. (2) Sims vs. McClure, 8 Ricli., S. C. Eq., 286; Dods vs. Wilson, i Treadw., S. C. Const., 448. (3) Murray vs. Carlin, 67 111., 2S6. (4> Menkins vs. Lightner, 18 111., 282. (5) Jenners vs. Howard, 6 Blackf., (Ind.) 240. (6) Menkin^vs. Lightner, 18 111., 282. (7) Commonwealth vs. Heath, 11 Gray, 'INIass.) 303; State vs. McCoy, 34 Miss., 531 ; Newcomb vs. State, 37 Miss., 383 ; \Va tcr vs. Pe )p!e, 32 N. Y., 147 ; Fisher vs. People, 23 111., 283. (8) Graham vs. Commonw---a.th, 16 B. Mjh., (Ky.) 5S7 ; Fis'.ier \s. Peo- ple, supra. (9) State vs. Brinyea, 5 Ala., 241 ; State vs. Mar'.e;-, 2 Ala., 43 ; People vs. Coffman, 24 Cal., 230. (10) State vs. Lawrence, 57 r.Ie.. 574. 420 PROCEEDINGS IN INSANITY — CONSERVATOR. [CH XVII. it need not be established beyond a reasonable doubt — it is enough if tlie jury be satisfied by the preponderance of the evidence.(^) Where a defendant, charged with crime, sets up insanity as a de- fense to the act, he does not thereby assume the burden of proof upon that question — such a defense being only a denial of one of tlie essential allegations against him.(^j In Kansas, it has been held, that in a criminal action, where the defense of insanity is in- terposed, it does not devolve upon the defendant to prove that he is insane by a preponderance of the evidence ; but if, upon the whole of the evidence introduced on the trial, together with all the legal presum])tions applicable to the case, under the evidence, there should be a reasonable doubt as to whether the defendant is sane or insane, he must be acquitted.(^) This seems to be the rule in Illinois.^ The same doctrine is held in Michigan, that where any evidence is given, which tends to overthrow the presumption of sanity, the burden of proof then falls upon the prosecution to establish the insanity. (^) In California, it was held, that where insanity was relied upon as a defense, the burden of proof is on the defendant; and the proof must be such in amount that, if the issue of sanity or insanity of the defendant, were submitted to a jury in a civil case, they would find he was insane.(^) In order for insanity to constitute a defense, the evidence must show, that, at the time of committing the act charged, the defend- ant was laboring under such a defect of" reason from disease of the mind, as not to know tlic nature and quality of the act he was doing; or, that if he did know, he did not know that what he was doing, was wrong. For, if the party indicted, had, at the time of the offense, capacity and reason sufficient to enable him to distin- guish between right and wrong, and to understand the nature, character and consequences of his act, and his relation to the party (i) Fisher vs. People, 23 111., 283; State vs. Klinger, 43 Mo., 127. (2) Hopps vs. People, 31 111., 3S5. (3) State vs. Crawford, 11 Kansas, 32. (4) Chase vs. People, 40 111., 352; Hopps vs. People, supra. (51 People vs. Garbutt, 17 Mich., 9; Contra, Boswell vs. State, 63 Ala., 307 ; See, also, note to the above case, 35 American Rep., 32. {6j People vs. Hamilton, (Supreme Court of Cal., May, 1882) 14 Report- er, 45. CH. XVir.] PROCEEDINGS IN INSANITY — CONSERVATOR. 4^1 injured, the defense of insanity is not made out.(*) To constitute a defense, the insane dekision must be shown to have existed to such an extent as to blind its subject to the consequences of his acts, and dej)rive hiiu of all freedom of agcncy.(^) Where liercditary insanity is offered as an excuse for crime, it must appear that the kind of insanity proposed to be proven, as existing in the prisoner, is no temporary malady ; but that it is no- torious, and of the same species as that with which other members of the family have been afflicted. (^) While voluntary intoxication is no excuse for crime, still insan- ity produced by continued drunkenness, is a good defense in a criminal action. (*) Delirium tremens, is a species of insanity, and, like insanity from other causes, affects the res])onsibility for crime.(^j But when set up as a defense, the prisoner must show that he was under the influence of delirium at the time the act was perpetrated. (") A fixed, habitual madness, which is the result of long continued drunkenness, will excuse a crime; but insanity, which is the imme- diate result of intoxication, affords no excuse for crimCjC^) where the person, when sane, of his own volition, became intoxicated. C') It is as much the duty of a conservator of the peace, to order into custody an insane man, who is committing a breach of the peace in his presence, as to order the arrest of a sane person under like cir- cumstances; for, although an insane person may not be guilty of crime, he may lawfully be prevented from doing harm.;^*^) 18. Liability for Torts. — A lunatic or insane person is lia- ble, in a civil action, for any tort he may commit, though he is not punishable criminal ly.(^") Generally, insanity is no defense to an action of tort,(^') but it may be shown as a defense to an action for slander.(") (i) People vs. Pine, 2 Barb., (N. Y.) 566; Hopps vs. People, 31 111., 385; State vs. Brandon, 8 Jones, N. C. L., 463; People vs. Montgomery, 13 Abb., u.siVE. — Wliere an insane i)erson ix propeily brought before the court by personal service, the judgment or decre(^ rendered against him will be valid and binding, and is said to be neither void nor voidable. 13. IvKMinn- WHERE A LUNATIC IS SUED. — Where a lunatic or insane person is sued at law, the proper remedy for the lunatic is to a})ply to a court of chancery to restrain the proceedings, and to comi)eI the plaintiiF to go tliere for justice. But a judgment against a lunatic, until set aside in chancery, or otherwise, is as valid aud binding as any other judgment. It seems, however, that the mere fact of insanity alone is not sufficient ground to set aside the judg- ment. It should farther be shown that the judgment is iuequitable.(^) 14. Proper court to review decree. — Where a decree of strict foreclosure has been rendered in the circuit court of the United States against a lunatic or insane person, that court is the proper forum in which to apply for relief against the decree. The state courts have no power or authority to review, revise and correct such decree. 15. Statute construed. — The provision of section 6 of tiie chancery code, that in any cause in equity it shall be lawful for the court to appoint a guardian ad litem to any insane defendant in such cause, is not made jurisdictional, and can have no application where a conservator has been appointed and is acting, or when the complainant has no knowledge of the insanity. IG. Parties in chancery — bill against lunatic. — After inquisition and the appointment of a conservator for a lunatic, a (t) Upstone vs. The People, 109 111., 169. (2) (ireen vs. The Phcenix Life Ins. Co., 134 111., 310. (3) .Maloney vs. Dewey, 127 III., 395. 426 PROCEKDINGS IX IXSAXITY — CONSKRV'ATOR [cH XVrr party filing a bill to enforce the contracts of a lunatic should make the conservator a party ; but until such appointment it is competent to commence suit against the lunatic. The complainant is not bound to ascertain the mental capacity of the defendant before he can bring his suit.(^) 17. Insanity of partner — effect. — The insanity of a partner does not, j^er se, work a dissolution of the partnership, but may con- stitute sufficient grounds to justify a court of equity in decreeing its dissolution. But this doctrine is applied in equity with appropriate limitations and restrictions. For, while curable, temporary insanity will be sufficient, upon an inquisition, to sustain an adjudication of insanity in the county court, the appointment of a conservator, and commitment of the ward to an insane asylum, yet it will not authorize a court of chanc.ry to decree a dissolution of the partner- ship if the malady be temporary only, with a fair prospect of recovery in a reasonable time. An adjudication of insanity by the county court can have no effect in determining the partnership, and upon a bill to dissolve the partnership it will have no other effect than to establish the insanity. Courts of equity will, as between the partners, look to the effect produced upon the partnership relations and business, and refuse to dissolve the partnership and apply its assets unless the insanity materially affects the capacity of the partner to discharge the duties imposed by his contract relation. 18. Relation of partner — The relation of a partner embraces the character of both principal and agent. As to the partnership concerns, for himself he acts as principal, and as agent for his partners. His power to act for them is coupled with an interest in all that pertains to the firm business. Therefore, if, for any reason, one member of the firm should assume control and manage- ment of the business and affairs of the partnership, he should, while so controlling it, manage it for all, and in the interest of all the partners. He will not be allowed to derive personal advantage from the use of the partnership assets, or business or good will oi the firm. So where, after one of two partners had l)een adjudged insane, Init his insanity was considered only temporary, and curable, and the other, without objection or notice to any one, continued the business precisely as before, it was held that the presumption wag (i) Maloney vs. Dewey, 127 111., 395. err XVH ] Pf.'Of^KEDrNGS IN rXSANITY COXSKRVATOR. 427 that he did not intend a dissohition of the firm, and, in the ahscnce of evidence to the contrary, that lie waited to determine whether the incapacity of his partner would prove temporary merely, and it become ])racticable for him to resume business. In such a case, as long as the same partner continued thus to carry on the business without taking steps to dissolve the partnership, there could be no dissolution, or he be excused from afterward accounting lor the profits actually derived by him from the business of the firm.(') 19. Accounting by conspjrvator. — A. and B. were ])artners in this state in the business of brokers, and the former was adjudged insane, and the latter appointed his conservator, and continued the business precisely as before. The conservator did not inventory the i)artnership matters, and the profits of the business thereafter were not embraced in the final account of the conservator. Upon his recovery, a bill was filed in chancery by A. for an accounting of the partnership matters and profits: Held, that the final accounting of the conservator partner in the county court was no bar to the relief sought by the bilh The judgment of the county court approving a conservator's account and discharging him without any notice, actual or con- structive, to the ward, who was at that time in a lunatic asylum, is not conclusive upon the latter or his personal representatives. A claim cannot be barred by a proceeding in which it was in no wise involved, and of which the party to be estopped had no kind of notice. (^) 20. Appeal. — No appeal will lie from the finding and order of the county court in a proceeding to inquire into the alleged insanity of a person had under the act to revise the laws in relation to the commitment and detention of lunatics, approved March 21, 1874. 21. Recovery OF insane person. — If a person adjudged insane tiud committed to the hospital for the insane shall be restored to reason, he will be entitled to be discharged, and if he shall afterward be detained against his wishes, the law gives him a remedy by the writ of habeas corpus.[^) (i) Raymond vs. Vaughn, 128 111., 256. ( , Z^- (3) The People vs. Gilbert, 115 111., 59. 428 ASSIGNMENT FOR BENEFIT OF CREDITORS. [CH. XVJII. CHAPTER XVIII. ASSIGNMENT FOR THE BENEFIT OF CREDITORS. 1. Definition. 2. How made. 3. Notice to creditors to present claims. 4. Assignee to file inventory under oath. 5. Report of claims made and list of creditors. 6. How claims may be contested. 7. Dividends — final account and settlement. 8. Power of court over assignee. 9. Want of list or inventory not to void assignment. 10. When additional inventory and bond. 11. When claim not due — limitation. 12. Power of assignee to sell property, collect debts, etc. 13. Death or failure of assignee to act. 14. Preferences void. 15. Jurisdiction of county courts. 16. Discontinuance of proceedings. 17. Forms of a deed of assignment and schedules. 18. Inventory of the estate of assignor — bond. 19. Assignee's notice to creditors — form. 20. List of creditors and their claims to be filed. 21. Manner of presenting claims— form. 22. Exceptions to claim — forms and service of notice. 23. Order of distribution. 24. Final report of assignee. 25. Who may make assignments. 26. Construction given to deeds. 27. What assignments are fraudulent. 28. Modifications subsequently made. 29. Preference of creditors. 30. Trustees— rights of creditors. 1. Definition. — The .student should distinguish between bank- ruptcy and in.solvencv — or, bankrupt laws, and those relating to insolvents. By the provisions of the Federal Constitution, the power of enacting b:inkrupt laws is given to congress; hence, the several states have no power to pass bankrupt laws. Such laws necessarily impair the obligation of contracts.(^) Yet, the legisla- (i) Sturgis vs. Crowningshield, 4 Wlieat., 125; McMillan vs. McNeill, Id., 209. CH. XVIII ] ASSIGNMENT FOR BENEFIT OF CREDITORS. 429 tares of the several states may, in the aI)sonce of a federal bank- rupt law, pass laws providinj^ for, and regulating assignments for the benefit of creditors ; and may even provide that a discharge under state insolvent laws, shall bar actions for debts contracted between citizens of that state after the passage of the act ; but can not, by such legislation, aifect obligations due to citizens of another state, nor those antedating the law.(^) An assignment is a transfer to another of real or personal prop- erty in possession or in action, or of any estate or interest therein. Assignments are either voluntary, as where the debtor volunta- rily makes an assignment for the benefit of his creditors ; or, involuntary, as when made by an imprisoned debtor, upon his application for discharge. These are mostly regulated by statutes, and the reader should consult these for details. The purpose of this chapter is to give the law relating to voluntary assignments as it now exists in the State of Illinois. Prior to the act of May 22d, 1877, there was no statute regulating assignments in this State, except such as are con- tained in the insolvent debtor's act, which will be treated in another chapter. The act passed May 22d, 1877, which went into force and effect July 1st, 1877, we shall give here in detail. 2. How MADE. — In all cases of voluntary assignments hereafter made for the benefit of creditors, the debtor or debtors shall annex to such assignment an inventory under oath or affirmation, of his, her or their estate, real and personal, according to the best of his, her or their knowledge ; and also a list of his, or their creditors, their residence and place of business, if known, and the amount of their respective demands; but such inventory shall not be conclu- sive as to the amount of the debtor's estate, but such assignment shall vest in the assignee or assignees, tlie title to any other proper- ty not exempt by law, belonging to the debtor or debtors, at the time of making the assignment, and comprehended within the gen- eral terms of the same. '' Every assignment shall be duly acknowl- edged and recorded in the county where the person or persons making the same, reside, or where the business in respect of which the same is made, has been carried on ; and in case said assignment (i) Mather vs. Bush, i6 Jolins., 233; Hicks vs. Hotchkiss, 7 Johns. Ch., 742; Vanuxem vs. Hazelhurst, i Southard, (N. J.) 192; Norton vs. Cook, 9 Conn., 314; See, also, note to the above case, 23 Am. Decisions, 346. 27 430 ASSIGNMENT FOR BENEFIT OF CREDITORS. [CH. XVIII. shall embrace lands, or any interest therein, then the same shall also be recorded in the county or counties in which said land may be situated.(^) Where one partner transfers and delivers to another, all the assets of the firm, to collect the debts due the firm, and pay and discharge its liabilities, giving such managing partner all the pow- ers possessed by both, for the purpose of settling the partnership affairs, and a division of proceeds after the payment of debts, this is not an assignment for the benefit of creditors of the firm, and will not prevent the partner taking the assignment, from securing one creditor to the prejudice of others.(^) 3. Notice to creditors to present claims. — That the as- signee or assignees named in such assignment, shall forthwith give notice thereof by publication in some newspaper published in the county, if any ; and if none, then in the nearest county thereto, which publication shall be continued at least six weeks, and shall also forthwith send a notice thereof by mail to each creditor, of whom he or they shall be informed, directed to their usual place of resi- dence, and notifying the creditors to present their claims under oath or affirmation to him within three months thereafter. (^) 4. Assignee to file inventory under oath — give bond to perform trust. — That the assignee or assignees shall also forthwith file with the clerk of the county court where such assign- ment shall be recorded, a true and full inventory and valuation of said estate, under oath or affirmation, so far as the same has come to his or their knowledge, and shall then and there enter into bonds to the People of the Slate of Illinois, for the use o^ the creditors, in double the amount of the inventory and valuation, with one or more sufficient sureties, to be approved by said clerk, ai.d the said clerk shall give a receipt therefor, and the assignee or assignees may thereupon proceed to perform any duty necessary to carry into effect the intention of said assignment as respects the collection of debts and the sale of real or personal estate. AVhich said bond shall be taken in the name of the People of the State of Illinois, and the condition shall be as follows: The condition of this obligation is such, that if the above bound , (i) Kurd's R. S., Chap, loa, ? i. (3) Kurd's R. S., Chap, loa, I 2. (2) Smith vs. Dennison, loi 111., 531. CH. XVIII ] ASSIGNMENT FOR BENEFIT OF CREDITORS. 431 assignee of. .shall, in all thinj^s, discharge his duty as assignee of. , aforesaid, and faithfully execute the trust confided to him, then the above obligation to be void, otherwise to remain in full force. (i) Such an assignment, if valid, passes all the property, real and personal, which the debtor owns at the time to the assignee.^^) 5. Report of claims and list of creditors. — Tiiat at the ex- |)iration of three months from the time of first pnblishing notice as before provided, the assignee or assignees shall report and file with the clerk of the connty court, as aforesaid, a true and full list, under oath or affirmation, of all such creditors of the assignor or assignors, as shall have claimed to be such, with a true statement of their respective claims, and also an affidavit of publication of notice, and a list of the creditors, with their places of residence and the date of mailing, to whom notice has been sent by mail, duly verified. ^^j 6. How claims may be contested — bond for costs. — That any person interested as creditor or otherwise, by himself or attorn- ey, may appear within thirty days after filing such report, and file with said clerk any exceptions to the claim or demand of any cred- itor's exhibit as aforesaid, and the clerk of said court upon such per- son, by himself or attorney, filing in said court, good and sufficient bond for cost, to be approved by the clerk, and executed in the same manner and to like effect in law as is now required in qui tarn actions as provided in sections one and two of an act entitled, "An Act to Revise the Law in Relation to Costs," approved February 11, 1874, shall forthwith cause notice thereof to be given to the creditor, which shall be served as in case of an original notice in the county court, and shall be returnable at the next term of the county court in said county ; and the said county court, shall, at the next term, proceed to hear the proofs and allegations of the parties in the premises, and shall render ouch judgment thereon as shall be just, and may allow a trial by jury thereon. (^) 7. Dividends — final account and settlement — commis- sions. — That at the first term of the said county court after the expiration of the three months, as aforesaid, should no exceptions (i) Hurd's R. S., Chap. \oa, \ 3. (2) Freydendall vs. Baldwin, 103 111., 325. (3) Hurd's R. S., Chap. loa, ^ 4. (4) Hurd's R. S., Chap. loa, \ 5. 432 ASSIGNMENT FOR BENEFIT OF CREDITORS. [CH. XVIII. be made to the claim of auy creditor, or, if exceptions have been made, and the same have been adjudicated and settled by the court, the said court shall order the assignee or assignees, to make from time to time, fair and equal dividends (among the creditors) of the assets in his or their hands, in proportion to their claims, and as soon as may be, and within one year thereafter, to render a final account of said trust to said county court, and said court may allow such commissions and allowances to said assignee or assignees, in the final settlement, as may be considered by the court just and right-C) 8. Power of court over assignee. — That the assignee or assignees, in the execution of assignments, shall, at all times, be subject to the order and supervision of the county court, when in session, or the judge of said court, when not in session, and the said court or the said judge, may, by citation and attachment, compel the assignee or assignees from time to time, to file reports of his or their proceedings, and of the situation and condition of the trust, and to proceed in the faithful execution of the duties required by this act, and to obey the order of such court when in session, or the said judge, when not in session, in relation to the complete and final settlement, distribution and paying over of the proceeds de- rived from said trust or any part thereof, until a final settlement and distribution is made.(^) The whole management of the estates of insolvent debtors, un- der voluntary assignments, is committed to the jurisdiction of county courts. How the trust funds, in the hands of the assignee, are to be paid over and distributed, are matters for the determina- tion of the county court, where such proceedings are pending, and its judgments and orders in that respect, can only be reviewed as the judgments and decrees of other courts of competent and original jurisdiction are reviewable by appellate courts. In supervising the administration of these estates, this court will determine the prior- ity of creditors claiming to have judgment or execution liens against the property of the assignor, as well as all other questions that may arise, during the period of its administration. This jurisdiction being given by statute to the county court, a court of equity can (i) Kurd's R. S., Chap. loc, ? 6. (2) Kurd's R. S., Chap, loa, I 7. CH. XVIII.] ASSIGNMENT FOR BENEFIT OF CREDITORS. 433 not, in any manner, interfere with the estate while it is being admin- istered by that court.(^) 9. Want of list or inventory not to void assignment. — That no assicnment shall be declared fraudulent or void for want of any list or inventory, as provided in the first section of this act. The county court of the county may, upon application of the as- signee or assignees, or any creditor, compel the appearance in per- son of the debtor or debtors before such court, by citation returna- ble forthwith, or at the next term thereof, and by attachment to answer, under oath, such matters as may then and there be inquired of him, her or them; and such debtor or debtors may then and there be fully examined under oath, as to the amount and situation of his, her or their estate, and the names of the creditors, and amounts due to each, with their places of residence ; and may compel the delivery to the assignee or assignees, of any property or estate embraced in the assignmeut.(') 10. When additional inventory and bond. — That the assignee or assignees, shall, from time to time, file with the clerk of the county court, an additional inventory and valuation of any ad- ditional property or estate, which may come into his or their hands under said assignment, after the filing of the first inventory, and the clerk may thereupon require additional security by bond, as upon the filing a first inventory .(') 11. When claim not due — limitation. — That any creditor may claim debts to become due as well as debts due, but on debts not due, a reasonable abatement shall be made when the same are not drawing interest, and all creditors who shall not exhibit his, her or their claim within the term of three months from the publi- cation of notice as aforesaid, shall not participate in the dividends until after the payment in full of all claims presented within said term, and allowed by the county court.(*) 12. Power of assignee to sell property, collect debts, ETC. — That any assignee or assignees as aforesaid, shall have as full power and authority to dispose of all estate, real and personal, assigned, as the debtor or debtors had at the time of the assignment, (i) Freydendall vs. Baldwin, 103 111., 325. (2) Kurd's R. S., Chap. 10a, I 8. (3) Kurd's R. S., Chap, loa, I 9. (4) Kurd's R -S., Chap. 10a, 'i 10. 434 ASSIGNMENT FOR BENEFIT OF CREDITORS. [CH. XVIII. and to sue for and recover in the name of such assignee or assignees, every thing belonging or appertaining to said estate, real or personal, and generally to act and do whatsoever the said debtor or debtors might have done in the premises; but no sale of any real estate be- longing to said trust, shall be made only on notice published as in case of sales of real estate on execution, unless the county court shall order and direct otherwise.(^) 13. Death or failure of assignee to act — court to ap- point A SUCCESSOR — REMOVAL — BOND. — That in case any assignee shall die before the closing of his trust, or in case any assignee shall fail or neglect for the period of twenty days after the making of any assignment, to file any inventory and valuation, and give bonds as required by this act, it shall be the duty of the county judge of the county where such assignment may be recorded, on the appli- cation of any person interested as creditor or otherwise, to appoint some one or more discreet and qualified j)erson or persons to exe- cute the trust embraced in such assignment ; and such person or persons on giving bond with sureties as required of the assignee or assignees named in such assignment, shall possess all the powers thereby, and by this act conferred upon such assignee or assignees, and shall be subject to all the duties hereby imposed, as fully as though he or they are named in the assignment, and in case any security shall be discovered to be insufficient, or on complaint be- fore the county court, it shall be made to appear that any assignee or assignees, are guilty of wasting or misapplying the trust estate, said county court may direct and require the giving additional secu- rity, and may remove such assignee or assignees, and may appoint others in their stead to fulfill the duties of said trust ; and such person, so appointed, on giving bond, shall have full power to exe- cute such duties, and to demand, and sue for all the estate in the hands of the person or persons removed, and to demand and recover the amount and value of all moneys and property or estate so wasted and misapplied, which he or they may neglect or refuse to make satisfaction for, from such person or persons, and his or their sureties.(^) 14. Preferences void. — Every provision in any assignment (i) Kurd's R. S., Chap, loa, I ii. (2) Kurd's R. S., Chap. \oa, I 12. CH. XVIII.] ASSIGNMENT FOR BENEFIT OF CREDITORS. 435 liereafter made in this state, providing for the payment of one debt or liability in preference to another, shall be void, and all debts and lial)ilities within the provisions of the assignment, shall be paid pro rata from the assets thereof. (^) 15. Jurisdiction of county courts. — Full authority and jurisdiction is hereby conferred upon county courts and the judges thereof, to execute and cai-ry out the provisions of this act, and said courts shall be and remain open at all times for the transaction of business, under this act.(^) 16. Discontinuance of proceedings. — All proceedings un- der the act of which this is amendatory, may be discontinued upon the assent, in writing, of such debtor, and a majority of his cred- itors in number and amount ; and in such case, all parties shall be remitted to the same rights and duties existing at the date of the assignment, except so far as such estate shall have already been administered and disposed of; and the court shall have power to make all needful orders to carry the foregoing provision into effect.(^) 17. Forms. — The date of this act is so recent, that it has not yet become the subject of judicial construction to any considerable extent. No statutoiy forms have been provided for the proceed- ings under the act, and thus far each one has used such forms as his own skill could construct. The following forms meet all the requirements of the act : FORM FOR DEED OF ASSIGNMENT. Know all men by these presents : That I, , of the county of. , in the State of Illinois, in consideration of one dollar to me paid by , of the same county and state, the receipt whereof I hereby acknowledge, and of the uses, purposes and trusts hereinafter mentioned, have granted, bargained, sold, assigned, transferred and set over, and by these presents, do grant, bargain, sell, assign and set over, to the said , and to his successors in trust, all my lands, tenements and hereditaments, goods, chattels and effects, and all accounts, debts and demands due, owing or be- longing to me, together with all securities for the same, which said lands, goods, chattels, debts and demands, are particularly enumerated and de- scribed in the schedules hereto annexed, marked "Schedule A" and " Schedule B." To have and to hold the same to the said , and to his successors in trust, should any be appointed ; in trust, nevertheless, that the said shall forthwith take possession of the premises, estate and prop- erty hereby assigned, and file an inventory thereof, with the clerk of the (i) Hurd's R. S., Chap, loa, I 13. (3) Hurd's R. S., Chap, loa, I 15. (2 Hurd's R. S., Chap. loa, § 14. 436 ASi^IGNMENT FOR BENEFIT OF CREDITORS. [CH. XVIII. county court of. county, in the State of Illinois, and with all reasonable diligence, sell and dispose of the same, for the benefit and use of the cred- itors of the said , the grantor, under the order and direction of the county court of the said county of , and of the judge of said court, and in conformity with the statute of the .State of Illinois, concerning voluntary assignments. In witness whereof, the said has hereunto set his hand and affixed his seal, this. ..day of. , A. D. i8... , [Seal.] STAtE OF Illinois, \^^ County, j I, , in and for the said county, in the state aforesaid, do hereby certify that , who. .-personally known to me to be the same person.. whose name. ..subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that..he..signed, sealed and delivered the said instrument as. -free and voluntary act, for the uses and purposes therein set forth. Given undar my hand and seal, this. ..day of. , A. D. i8... , Clerk of the County Court. It has been usual to insert in the deed of assignment a power of attorney to the assignee. Under the statute this is not necessary, as the statute confers upon the assignee, acting under the order of the county court, or the judge thereof, all the power necessary. schedule " a." — inventory of the estate of assignor. State of Illinois, 1 .County, J Inventory and Valuation of the Estate of. , Assignor, as the same ex- isted on the. ..day of , A. D. iS... REAL ESTATE. Description. Value. CHATTEL PROPERTY. Articles. Value. CH. XVIII.] ASSIGNMENT FOR BENEFIT OF CREDITORS. 437 NOTES, ACCOUNTS, AND CHOSES IN ACTION. 1 From Whom Dae. Date. 1 Interest. 1 Principal. Amount. Cash on hand, $ Amount of Real Estate brought forward, Amount of Chattel Property brought forward, Amount of Notes, &c., Total Value of Estate, $ State of Illinois, \ County, r^- , the above named assignor, being first duly sworn, on oath de- poses and says, that the above and foregoing schedule embraces all of his property, real aud personal, as well as all notes, accounts, cash on hand and evidences of indebtedness, and that the values therein placed upon the above named property, are true and just valuations, according to his best knowledge and judgment. , Assignor. Subscribed and sworn to before me, this. ..day of. , A. D. i8.... , County Clerk. SCHEDULE "b." — list OF CREDITORS OF THE ASSIGNOR. List of Creditors of. ,the grantor in the assignment, hereto attached, with their residence and place of business, so far as known, and the amount of their respective demands : Kanies. Residence and Place of Business. Demand. | State of Illinois, 1 County, ) ^^- , the assignor, being duly sworn, on his oath, states that the fore- going is a true list of all his creditors, with the residences and place of busi- ness of each of them, and the amount of their respective demands, to the best of his present knowledge, information and belief. , Assignor. Subscribed and sworn to before me, this. ..day of , A. D. i8... , County Clerk. 438 ASSIGNMENT FOR BENEFIT OF CREDITORS, [CH. XVIII The name of a person being included in the list of creditors, in making a deed of assignment, as a creditor, the assignor will be es- topped from afterwards denying that he is a creditor ; and in like manner will other creditors be estopped by such statement, from denying he is a creditor, unless it can be shown that such statement was falsely made for the purpose of defrauding the other creditors, or redu(!ing their pro rata share. (^) 18. Inventory to be filed. — The first duty of the assignee is to file with the clerk of the county court where the assignment is recorded, a full inventory and valuation of the estate assigned to him, in form as follows : State of Illinois, \ County, /•^•^• In the Matter of the Assigfnment of. The following is a true, full and perfect inventory of all the real and personal estate of the said , so far as the same has come to the knowl- edge of the undersigned, assignee of said : Description of Beal Estate. Value. 1 1 N-o. Chattel Property. Value. 1 Cash on hand. NOTES AND ACCOUNTS. No. Name of Debtor. Dale of Note or AccH. AmH. Accrued ! ^.f""* Tntere'it I D btfiil or interest. \j)g^p^,.^tg Total. Total amount of Personal Estate, State of Illinois, County, ., assignee, as aforesaid, being duly sworn, deposes and says, that the above is a true and full inventory of all the real and personal estate (l) McCracken vs. Milhous, 7 Bradwell, 169. CH. XVIII.] ASSIGNMENT FOR BENEFIT OF CREDITORS. 439 of. so far as the same has come to.. ..knowledge, and that-. ..believes the foregoing to be a fair and just valuation of the same. , Assignee of. Subscribed and sworn to before me, this-. .day of , A. D. i8... , Clerk of the County Court. Having filed his inventory in the county court, the assignee is required then and there to enter into bond to the People of the State of Illinois, for the use of the creditors, in double the amount of the value of the property inventoried, with one or more sufficient securities, to be approved by the clerk. assignee's bond. Know all men by these presents, that we, , of the county of. , and State of Illinois, are held and firmly bound unto the People of the State of Illinois, for the use of the creditors of , in the penal sum of. dol- lars, current money of the United States, which payment, well and truly to be made and performed, we, and each of us, do hereby bind ourselves, our heirs, executors and administrators, jointly, severally and firmly, by these presents. Witness our hands and seals, this. ..day of. , A. D. i8... The condition of this obligation is such, that if the above bounden , assignee of. , shall in all things discharge his duty as assignee of aforesaid, and faithfully execute the, trust confided to him, then the above obligation shall be void : otherwise to remain in full force and virtue. , [Seal.] , [Seal] , [Seal.] State of Illinois, ) County, J * I, , do hereby certify that , personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this.. ..day of. , A. D. iS.... [Seal.] , Clerk of the County Court. Having executed his bond, and the clerk having endorsed there- on an approval of the same, the assignee is authorized to perform any and all duties necessary to carry into effect the assignment, as respects the collection of debts, and the sale of real and personal estate. 19. Notice to creditors — form. — The assignee should forth- 440 ASSIGNMENT FOR BENEFIT OF CREDITORS. [CH. XVIII. with give notice of his appointment and qualification in some news- paper published in the county, and if there is no newspaper pub- lished in the county, then in the nearest county thereto. This publication must be continued for six weeks. He is also required to send a copy of such notice by mail to each creditor of whom he shall be informed, directed to their usual place of residence. The notice may be in form as follows : Notice is hereby given, that the undersigned ha..been appointed as- signee of. , and all persons holding any claim or claims against said , are hereby notified to present the same to me under oath or affirmation, within three months from this date, whether said claims are due or not. All persons indebted to said assignor.-are requested to make prompt payment of the same. Dated this....day of. A. D. i8.... , Assignee. affidavit — publication in assignment. State of Illinois, \ County, r being duly sworn, on oath depose and say, that on the. ..day of. A. D. i8..., ..he-.caused to be published in the , a newspaper published in said county of. , a notice, of which the annexed is a true copy. That the first publication thereof was made on the... day of. , A. D. i8..., and said publication was continued for six consecutive weeks, the last publication having been made on the. ..day of. , A. D. i8... Subscribed and sworn to before me, this. -.day of. , A. D. i8... , Clerk of the County Court. Annex a copy of the notice published, and file with the clerk. 20. List of creditors. — At the expiration of three months from the first publication of this notice, the assignee is required to file with the clerk of the county court, a true and full list, upon oath or affirmation, of all persons who have claimed to be creditors of the assignor, with a true statement of their respective claims. He must also file an affidavit of the publication of the notice to creditors, and a list of the creditors, with their places of residence, and the date of mailing, to whom notice has been sent by mail. This also must be verified by oath or affirmation. The following are the forms to be used : CH. XVIII.] ASSIGNMENT FOR BENEFIT OF CREDITORS, 441 State of Illinois, \ County, /•^•^• In the Matter of the Assignment of. List of Persons who have claimed to be Creditors of the said , As- signor.., and a Statement of their respective Claims: At! me. Nature of Claim. Amo^int. , Assignee. State of Illinois,) County, r^- , Assignee of. , being duly sworn, on oath depose., and say- that the foregoing is a true and full list of all persons who have claimed to be creditors of said , assignor, together with a true statement of their respective claims. , Assignee. Subscribed and sworn to before me, this. ..day of. , A. D. i8... , County Clerk. The form following contains a list of creditors of the assignor notified by mail, which should also be filed with the clerk : assignee's list of creditors notified by mail. In the Matter of the Assignment of List of Creditors of the said , to whom notices have been sent by mail by , Assignee, together with the places of residence of said Cred- itors, and the date of mailing such notice : Name. Residence. Date of Mailing Notice. , Assignee. State of Illinois, \ County. J ^^' , assignee of. , being duly sworn, on oath depose..and say.. that the foregoing is a true and full list of all creditors of said to whom notices have been sent by mail, together with their places of residence and date ofmailing of said notices; and afifiant..furthersay..that the said notices so sent, notified said creditors to present their claims to within three months, and that the postage on said notices was prepaid. Affiant further 442 ASSIGNMENT FOR BENEFIT OF CREDITORS. [CH. XVIII. say..that the said list contains the names and residence of all the creditors of the said , of whom affiant has been informed. Subscribed and sworn to before me, this-. -day of. , A. D. i8... , County Clerk. 21. Manner of presenting claiiMS. — Claims should be pre- sented to the assignee, verified by the oath of the claimant. A copy of the note or account which constitutes the basis of the claim, should be attached to the affidavit, which may be in form as follows : State OF Illinois, 1 Itt the Conn tv Court of Connty, County, i Term, A. D.iS... In the Matter of. , Insolvent , Assignee. Claim of. , being duly sworn, says that the demand of the said against the above named insolvent, a copy of which is hereto at- tached, is for \_Here state the nature of the demand'^, and that there is due to the said from the said insolvent, after allowing to. ..all payments, deductions and offsets, dollars. Deponent further says, that the said claimant resident of said county. Attorney. Subscribed and sworn to before me, this. ..day of. , A. D. i8... , County Clerk. 22. Exceptions to ciiAiMS. — Any person interested as a cred- itor or otherwise, at any time within thirty days after the report of the assignee is filed, may file exceptions to the claim or demand of any creditor, and upon giving a bond for costs, the same as in qui tarn actions, the clerk is required to cause notice thereof to be given to the creditor, which shall be served as in case of an original notice in the county coui't. This notice is returnable to the next terra of the county court, when the exceptions shall be tried either by the court or a jury. EXCEPTIONS TO A CLAIM. State of Illinois, 1 . In the County Court, • County, j'"^"^* To the Term, A. D. i8 In the Matter of , Assignee of. Exceptions of. , a Creditor of the said , Assignor, to the Clairri of. , filed with said assignee and included in his report to this court. First Exception :— For that said claim is not founded upon any consider- ation good and sufficient in law. Second Exception.— [//v of. , A. D. i8... — , Couity Clerk. 25. Assignment — who may make. — Al debtor may make an assignment for the benefit of" his creditors, and, if fairly dv^ne, it passes tlie title to his property to ^he assignee. The question of i'airness ot l1;h transaction, is one ot fact for the finding of a jury • and whether certain facts would have the legal effect of an aban- donment of an assignment, m.ty or may not be conclusive. They should be accompanied wuii an intention to abandon, and that in- tention should be left to the jury for decision (^) The power to make an assignment exists iudependent of statutory provisions, yet it may be affected or modified by such provisions.^*) One partner can not make a general assignment for the benefit of creditors of the firm, except in the absence of the other partners, or when for some valid reason there can be no consultation had.(^) Corporations are in laA'.'. for civil jiurposcs, deemed pei'sous, and may make assignments for the benefit of creditors. C) An assignment which covers only personal property, need not be recorded, if possession accompanies the assignment.(^) 26. Deed of assignment — construction to be given to. — The covenant of the assignor to the assignee, in the first part of the deed, that the assignee shiU not be held liable to the assignor, ex- cept for actual receipts and willful defaults, when construed in connection with the covenant of the assignees in the last part of the' deed to all the parties interested, that he will f.iithfully execute the tru."5ts, does not invalidate the assignment. (^) An assignment, like any other instrument in writing, should be so construed as to render it legal and operative, rather than illegal and void,(''') and (i) Wilson vs. Pearson, 20 111., Si ; Myers vs. Kinzie, 26 111., 36. (2) Dehner vs. Helmbacher Forge and Rolling Mills, 7 Bradwell, 47. (3) Lieb vs. Pierpont, (Sup. Court of Iowa, June 1S82) 14 Reporter, 77. (4) Shockley vs. Fisher, (Sup. Court of Miss., March 1882) 14 Reporter, 89. (5) Wilson vs. Pearson, si/pra. (6) Grover vs. Wakeman, 11 Wend, (N. Y.) 187; Brigham vs. Tilling- hast, 15 Barb., (N. Y.) 618; Jacobs vs. Allen, 18 Barb., (N. Y.) 549. (7) Grover vs. Wakeman, supra; Brigham vs. Tillinghast, supra. 28 446 ASSIGNMENT FOR BENEFIT OF CREDITORS. [(TI. XVIII. whenever the law will imply a discretion, a discretion may be given in the assignment.(^) A clause in a deed of assignment, that the assignee covenants and agrees to execute the trust faithfully, according to the stipula- tions therein contained, being responsible only for his actual receipts and willful defaults, makes the deed fraudulent and void.(^) But where the deed of assignment contained a clause providing that the assignees should be responsible only for their actual benefits and willful or neglectful defaults, it was held, that this language only expressed the legal liability of the assignees, and did not in- validate the deed.(^) A clause in an assignment which provides that any surplus remaining, after the claims of the creditors have been satisfied, shall be paid over to the assignor, does not invalidate the assign- ment. (*) The validity of a deed of assignment of property, although exe- cuted in another state, so far as it attempts to convey real estate situate in this state, must be determined by laws of this state.(^) An assignor has no power to change the terms and conditions of the assignment after he has made it, without the consent of the assignee and the creditors. (^) A deed of assignment, which purports to include all creditors and make provisions for them, embraces all the individual creditors of the assignor, even should some names be omitted in the schedule subsequently filed.Q A verbal assignment of both real and personal property, is in- valid under the statute of frauds.(^) When an assignment is made, the assignee of the assignors is simply a trustee, for the purpose of converting their estate into money and paying the proceeds out to the creditors.(^j (i) Sackett vs. ]Mansfield, 26 111., 21. (2) Mclntyre vs. Benson, 20 111., 500; Robinson vs. Nye, 21 III, 592; Finlay vs. Dickerson, 29 111., 9. (3) Whipple vs. Pope, 33 111., 334. (4) Conkling vs. Carson, 11 111., 503; Finlay vs. Dikerson, supra. (5) Gardner vs. Commercial Nat'l Bank of Providence, 95 111., 298. (6) Union Nat'l Bank of Chicago vs. Bank of Commerce, St. Louis, 94 111., 271. (7) lb. (8) Lill vs. Brant, 6 Bradwell, 366. (9) McCracken vs. Milhous, 7 Bradwell, 169. CH. XVIII ] ASSIGNMENT FOR BENEFIT OF CREDITORS. 447 27. AViiAT FRAUDULENT AND VOID. — A clause in a voluntary assignment by failing debtors for the benefit of creditors, made to an attorjiey at law as assignee to pay himself commissions as as- signee, and also counsel fees as an attorney, is in fraud of the creditors, as it places the assignee in a double position, and tends directly to the wasting of the trust fund.(^) So, too, a clause in an assiffument for the benefit of creditors, authorizino; the assiirnees to sell the assigned property on credit, renders it fraudulent and void as against creditors, as tending to hinder and delay them ;(^) al- though such a clause is good as between the assignor and assiguee.(^) And a clause, in a general assignment for the benefit of creditors, authorizing the trustee to compound with creditors, makes void the assignment. (■*) An assignment for benefit of creditors to an assignee who is known to be insolvent at the time, is prima facie, but not conclu- sive evidence of a fraudulent intent, but may be refuted by circum- stances, as by showing consent of creditors.(^) A voluntary deed of assignment for the benefit of creditors, containing authority to the assignee, to sell and dispose of the prop- erty with all convenient diligence at public or private sale, as he may deem most beneficial to the interests of the creditors, and with all reasonable dispatch to collect the debts assigned, is not therefore fraudulent and void as to creditors,'^^) no discretion being given to such a clause but such as the law would imply.Q The employment of the debtor to assist in the settlement of the business after assignment made by the assignor to the assignee, is not a badge of fraud. Nor is the appropriation to the general fund of goods purchased in contemplation of an assignment, where the right of stoppage in transitue was not exercised by the seller, a badge of fraud. Fraud on the part of a debtor in making an as- signment must be proved, and as there is no rule of law requiring (i) Heacock vs. Durand, 42 111., 230. (2) Bowen vs. Parkhurst, 24 111., 257; Pierce vs. Brewster, 32 111., 26S ; Whipple vs. Pope, 33 111., 334; Gardner vs. Commercial Nat'l Bank of Prov- idence, 95 111., 298. (3) Chickering vs. Raymond, 15 111., 362. (4) Hudson vs. Maze, 3 Scam., 57S. (5) Reed vs. Emery, 8 Paige's Ch., 417. (6) Sackett vs. Mansfield, 26 111., 21; Finlay vs. Dickerson, 29 111., 9; Pierce vs. Brewster, supra ; Whipple vs. Pope, supra, (7) Finlay vs. Dickerson, j«/>nz. 448 ASSIGNMENT FOR BENKFIT OF CREDITORS, [cil. XVIII. a debtor to give notice of his failure, the simple fact that purchases are made on credit, when the debtor knows tiiat lie is unable at the time to pay his debts, does not necessarily render such purchases fraudulent.(^) The question of fraud being a question of fact, the verdict of a jury, as to the good foith of an assignment, will not be disturbed, unless the proof shows clearly that the assignment was fraudulent.(^) Where partnership property is appropriated to thepayment of indi- vidual debts by deed of assignment by an insolvent tirm, such assignment is fraudulent and void as to the firm creditors.(^) The fact of an injudicious selection of an assignee, nor his lack of pecun- iary responsibility, is not conclusive evidence of fraud.(*) Where an assignment is made without any preference, or indi- cation of fraudulent intent, a few days before the recovery of a judgment against the assignor, it will be sustained, and pass the title to the assignee, and he may maintain replevin for the same as against the sheriff levying an execution upon the same,(*) Where an assignment is made for the purpose of paying a par- ticular debt, the balance of the proceeds to be returned to the debtor, it is fraudulent and void, because of the reservation to the debtor, and as hindering and delaying creditors. (^) So, an assignment for the benefit of creditors, which requires creditors to release the assignor from all liability before receiving any benefit under the deed, with a further provision that after pay- ing in full the creditors who should release the assignor, the creditors who should not release him, should be paid pro rata, is fraudulent and void.(''') 28. Subsequent additional agreement. — A deed of assign- (i) Blow vs. Gage, 44 III., 20S ; but see, further, Schweizer vs. Tracy, 76 111., 345. (2) Wilson vs. Pearson, 20 111., Si ; Clark vs. Groom, 24 111., 316 ; Nim- mo vs. Kuykendall, 85 111., 476. (3) Keith vs. Funk, 47 111., 272 ; Wilson vs. Robertson, 21 N. Y., 587; Lester vs. Abbott, 28 How., (N. Y. Pr.) 48S. (4) Clark vs. Groom, supra. (5) Nimmovs. Kuykendall, .??//!»;'«;. (6) Lill vs. Brant, 6 Bradwell, 366; Selz, Schwab & Co. vs. Evans, 6 Bradwell, 466. (7) Hubbard vs. McNaughton, 43 Mich., 220; Duggan vs. Bliss, 4 Col., 223; Grovervs. Wakeman, 11 Wend., (N. Y.) 187; Contra, see Clayton vs. Johnson, 36 Ark., 40, and cases there cited (38 Am. Rep., 40.) CH. XVIII.] ASSIGNMENT POR BENEFIT OF CREDITORS. 449 iiient being voidable only at the instance of judgment creditors of the assignor, may be made good by matter ex post facto; and when an assignment is so modified and changed as to divest it of its ob- jectionable features, by consent of all parties thereto, prior to the time that any of the creditors are in a position to attack the original assignment, it must stand, and the rights of creditors must be gov- erned by it.(^) But a subsequent additional agreement to a deed of assignment, to be valid, must be with the consent of all parties to the instrument.(^) 29. Preference of creditor. — It has been held that a debt- or may prefer one creditor, pay him fully, and thus exhaust his whole property, leaving nothing for others equally meritorious. He may also partially pay a portion of his creditors, and neglect others, and the law will not disturb such disposition of his proper- ty.(^) But, since the passage of our statute, the same is expressly prohibited, and now, where an assignor makes an assignment for the benefit of his creditors, he can not make any preferences, even though they be ever so fairly and honestly made.(*) A voluntary assignment is not vitiated because it delays credit- ors. It must appear to have been collusively designed so to do, and the intent is a question of fact. The good or bad faith of the transaction, stamps its character.(^) The mere assent of a creditor that his debtor may make an assignment for the benefit of his creditors, does not have the effect to release the debt.(^)' Where a party has funds deposited with a banker, who holds the promissory note of the depositor, the latter may insist that his note shall be satisfied out of the deposit, although the banker, be- foi'e the note became due, had voluntarily assigned all of his effects for the benefit of his creditors. C') Property, in the hands of an assignee for the purpose of paying ^i) Conkling- vs. Carson, ii 111., 503. (2) Ramsdell vs. Sigerson, 2 Gilm., 78; Murray vs. Riggs, 15 Johns., 571 ; Pierce vs. Brewster, 32 111., 268. (3) Cross vs. Bryant, 2 Scam., 36 ; Howell vs. Edgar, 3 Scam., 417 ; Cooper vs. McClun, 16 111., 435; Gibson vs. Rees, 50 111., 383; Ramsdell vs. Sigerson, supra ; Conklingvs. Carson, 11 111., 503 ; Blow vs. Gage, 44 111., 208. (4) H. R. S., Chap, loa, I 13; Lill vs. Bryant, 6 Bradwell, 366. {5) Sackett vs. Mansfield, 26 111., 21. (6) Hewlett vs. Mills, 22 111., 341. (7) McCagg vs. Woodman, 28 111., 84. 450 ASSIGNMENT FOR BENEFIT OF CREDITORS. [CH. XVIII. creditors, can not be reached by attachment or garnishee process.(^) Nor can money due the defendant in attachment, after he has made an assignment for the benefit of his creditors, be reached by gar- nishment at the suit of an individual creditor.^) The law allows charges, costs, expenses and disbursements attending the execution of the trust, but requires tliem to be reason- able ; and they are always subject to review by a court of equity.(^) 30. TllUSTEES TRUST PROPERTY RIGHTS OF CREDITORS. — Where a debtor makes an assignment of his property for the benefit of his creditors, preferring none of them, the creditors all become vested with an equitable lien on the property so assigned for the satisfaction of their debts in jpro rata proportions ; and the fraudu- lent acts of the trustees of the debtor of other creditors or strangers to the transaction, would not deprive them of the right to partici- pate in the fund. That can only be done by the acts of the creditors on the judgment or decree of a court of competent jurisdiction, or the legal acts of the trustees; and while all the acts of trustees within the scope of their authority conferred by the deed, and within the duties imposed by law, bind the creditors, the debtors and themselves, the unauthorized acts do not, and they may be required to account for the misapplication of the fund or omission of duty. They are under no obligation to accept, but having done so, they must perform their duty in good faith to all parties in interest. Such trustees may control the fund and convert it into money in the mode prescribed ; may sue for property or money, and the determination of the court in such cases binds them and the creditors; and a judgment against such trustees who have sued for property embraced in the assignment, is binding upon the trustees and creditors, unless it can be shown to have been the re- sult of fraud and collusion, wlicn it may be set aside and canceled in equity.^*) Where an assignment is made to a claim of money then in suit, it is sufficient to pass all the interest of the debtor, and he can not (i) Kimball vs. Mulhern, 15 111., 205; Lupton vs. Cutter, 8 Pick., 298; Gore vs. Clisby, 8 Pick., 555; Tucker vs. Clisby, 12 Pick., 22; Sandford vs. Bliss, 12 Pick., 116. (2) Dehner vs. Helmbacher Forge and Rolling Mills, 7 Bradwell, 47. (3) Blow vs. Gage, 44 111., 208. (4) Field vs. Flanders, 40 111., 470. CH XVIII.] ASSIGNMENT FOR BENEFIT OF CREDITORS. 451 apprropriate private proceeds differently, and if he docs, he becomes liable in equity for its repayment to his creditors.(^) An assignee to pay debts, can not be sued at law by a creditor to recover his proportionate part of the estate, until a dividend has been declared, and then there must be either a refusal or neglect upon the part of the assignee to pay.(^) The assignee of the partnership effects of an insolvent firm, has no power to bring suits against the partners of the firm for the purpose of securing debts due the firm, or in any other manner to enforce their payment, as his duty is confined to the distribution of the proceeds of the property assigned to hini.(^) (i) Nichols vs. Pool, 89 111., 491. (2) He.xter vs. Loughry, 6 Bradwell, 362. (3) Lund vs. The Skanes Ensklider Bank, 96 111., 181. 452 ASSIGNMENT FOR BENEFIT OF CREDITORS. [CH. XVIIl. ADDITIONAL NOTES. 1. Definitions. 2. How made. 3. Notice to creditors to present claims. 4. Dividends, final accountings and settlements. 5. Power of county court over assignee. 6. Power of assignee to sell property, collect debts, etc. 7. Death or failure of assignee to act. S. Prefer-:;nce of creditors void. 9. Preference of creditors — When permitted. 10. Jurisdiction of county court. 11. Jurisdiction of circuit court and court of chancery. 12. Partnership property assigned. 13. What assignments are fraudulent. 14. Compensation of assignee. 15. Appeal from county court. 16. Foreign assignments. 1. Definitions. — A voluntary assignment is an instrument in writing executed by a failing debtor, by which he assigns or trans- fers to some third person, as assignee or trustee, the whole, or sometimes the bulk, of his estate, to be by the trustee distributed among the assignor's creditors, in satisfaction of their demands. The act relating to voluntary assignments cannot, by construction, apply to any other subject than to voluntary assignments. It has nothing to do with chattel mortgages. A mortgage is a mere security for a debt, the equity of redemption remaining in the mortgagor, while an assignment is more than a security for a debt, and is an absolute appropriation of the property to its payment. It does not ci-eate a lieu in the creditors, but passes both the legal and equitable title to the property, absolutely beyond the control of the assignor, and leaves no equity of redemption. (^) 2. How MADE. — As to a debtor and his creditors, an assignment takes effect at the time of the delivery of the deed to the assignee, and no lien attaches against such property because of an execution issued after that time, but before the recording of the deed by the assignee. Fi ling the deed of assignment for record gives notice of the (i) Weber vs. Mick, 131 III., 520, Ctt. XVIII.] ASSIGNMENT FOR BENEFIT OF CREDITORS. 453 assignn^.enl, anct gives tlie court jurisdictiou of the subject-matter.(*) The deed ot" assigiimeut is to be recorded in the recorder's office of the proper county, and its record in the county court is not a neces- sary condition to tlie validity ot" tlie assignment, and the taking jurisdiction tliereof by that court. (^) A valid assignment can be made only under the statute, and when so made the estate nm.^t be administered and distributed substan- tially in conformily wirh its provisions. (^) An assignntent shall not be void for want of an inventory and list of cj'editors, and a conveyance of j)roperty in trust for the use of particular (;re from time to time, not exceeding thirty days at any time, and may reiuand tlic debtor into the custody of the officer, or allow the debtor to give bond for his ap[)carance in such demand upon such security as shall be approved by the court, which bond shall be payable to the Peoj)le of the State of Illinois, and be conditioned that the debtor will appear at the time to which the hearing is ad- journed, and from time to time until the same is concluded, and will make due assignment of all his estate, lands, tenements, here- ditaments, goods, chattels and effects, uot exempt from execution, and deliver the same to his assignee, if one shall be appointed by the court; or, in case he shall not be allowed to make such assign- ment, will surrender himself to the officer into whose custody he may be ordered by the court, and abide the order of the court. Upon a breach of such bond, it may be put in suit by any person interested therein, for his use, and at his expense.(^) The boud to be given may be in form as follows : Know all Men by these Presents: That we, and , are held and firmly bound unto the People of the State of Illinois, in the penal sum of.. .dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally and firmly by these presents. Witness our hands and seals, this. ..day of. , A. D. i8... The condition of the above obligationis such, that whereas the said who has been arrested by virtue of a writ oi capias ad salis/acienduin,\ss\\ed out of the office of the circuit court of. county, Illinois, on the. ..day of , A. D. i8..., at the suit of. against ; and having filed in the county court of said county, a schedule of all his property, both real and personal, together with an account of all debts owing by him, for the purpose of procuring his discharge from such arrest and imprisonment, un- der the provisions of the statute in such case made and provided, and having filed his objections to the approval of said schedule, and the court having granted a continuance of the hearing in respect tiiereto until. ..day of. , A. D. i8...,at the hour of.o'clock.. ; now, if the said will appear at the time to which llie hearing hereof is adjourned, and from time to time until the same is concluded, and will make due assignment of all his estate, lands, tenements, hereditaments, goods, chattels and effects, not exempt from execution, and deliver the same to his assignee, if one shall be ap- pointed by the court, and in case he shall not be allowed to make such assignment, will surrender himself to the officer into whose custody he may (i) Kurd's R. .S., Chap. 72, I 8. CH. XIX.] INSOLVENCY — INVOLUNTARY ASSIGNMENT. 469 be ordered by the court, and abide any further order of the court, then the above obligation to be void, otlierwisc to remain in full force and effect. , [Seal.] , [Seal.] 9. Assignment — assignee — exemption — bond. — If, after full investigation, it shall aiipear to the court, that the debtor has made a full, fair and corai)lete schedule of all his estate, and all debts which he may be owing at the time, as required by section five of the act to which this is an amendment, and has not fraudu- lently conveyed, concealed or otherwise disposed of, some part of his estate, with a design to secure the same to his own use, or de- fraud his creditors, or has not willfully misused or expended his goods and estate, or some part thereof, for the purpose of defrauding his creditors, it shall be the duty of the court to designate and set out to the debtor such property mentioned in the schedule as is exempt from execution, and to appoint some fit person to act as as- signee of the debtor ; and such debtor shall, immediately by in- dorsement upon such schedule, and otherwise, as the court may direct, assign to such person, all his said estate, except such as shall have been designated as exempt from execution, as aforesaid, or so much of said estate as may be sufficient to pay all the debts, interest, costs and charges, in such schedule mentioned. Said assignee shall be required by the court to give a bond for the faithfid perform- ance of his trust as such assignee; the conditions of said bond, and the security and the penal sum of the bond to be such as the court shall direct and approve.(^) FINAL ORDER OF DISCHARGE OF INSOLVENT DEBTOR AND APPOINTMENT OF ASSIGNEE BY THE COURT. State of Illinois, 1 In the County Court, County. J At Chambers,.. ..day of. ,A. D. i8... In the Matter of the Insolvency of. Order of Discharge and Appointment of Assignee. And now, on tliis day comes the said , by , his attorney, and the said , by , his attorney, and this being the day to which this cause was continued by the court, and the said having appeared and liled his e.xceptions to the approval of said schedule, and it appearing to the court, that the said has filed a fair and complete schedule of all his estate, lands, tenements, hereditaments, goods, chattels and effects, not (i) Hurd's R. S., Chap. 72, I 9. 470 INSOLVENCY — INVOLUNTARY ASSIGNMENT. [CH. XIX. exempt from execution, together with a true and perfect account of all the debts which he shall or may be owing at the time ; and it further appearing to the court, after a hearing of said cause, that the said has in all re- spects conducted himself fairly in making said assignment, and that said schedule of the said is just and fair in every respect. It is therefore ordered by the court, that be and he is hereby appointed assignee of the said And it further appearing to the court, that the said is the head of a family, and residing with the same, it is ordered, that the said assignee set apart to him the amount of property exempt bylaw from execu- tion and sale. And it further appearing to the court, that the said has, by his endorsement on said schedule, assigned all the property therein mentioned to , the assignee, and that the said assignee, has receipted him for the same, and that he has taken and subscribed the oath required by the statute. It is ordered by the court that he be discharged from said arrest and imprisonment, and that a certificate thereof issue to him in accordance with the statute in such case made and provided. And it is further ordered, that the said assignee as aforesaid, pay the cost of this proceeding out of the funds belonging to said estate. 10. Effect of assignment. — Such assignment shall absolutely vest in such assignee all the interest of such debtor in and to the estate so assigned, for the use of the creditors of such debtor, and such assignee shall have full right to sue for and recover the same in his own name as such assignee, and redeem all mortgages, condi- tional contracts, pledges and liens of or upon any goods or estate of the debtor, so assigned, or sell the same subject to such mortgage or other incumbrance. (^) The assignment may be in form as follows: State of Illinois, "I County, /•^■^• I, , an insolvent debtor, having filed my schedule as the law di- rects, and made application to the county court to be discharged from arrest and imprisonment under the insolvent laws of the State of Illinois, I being confined by virtue of a capias ad satisfaciendum issued out of the circuit court of. county, Illinois, at the suit of. and against myself, and the court having examined and approved said schedule and application, ap- pointed assignee of my said estate. I, , in consideration of the premises aforesaid, do hereby assign, convey and make over to the said , all my property, both real and personal, not exempt from levy and sale, and mentioned in the within schedule, to have and to hold the same unto the said , for the use of my creditors, under the provisions of the insolvent laws of the .State of Illinois. Witness my hand and seal, this. ..day of. , A. D. i8... , [Seal.] (i) Kurd's R. S., Chap. 72 \ 10. CH XIX. ] INSOLVENCY INVOLUNTARY ASSIGNMENT. 471 11. Discharge op dehtoii. — Wlionever tlie said debtor shall produce to the court the receipt of the assignee of such debtor, certifying that he has received all the estate so assigned to him, together with the evidences of indebtedness to, and the books of ac(x>unt of, such debtor, if any, showing the accounts owing to such debtor, the court shall enter an order discharging such debtor from arrest or imprisonment.(') The certiticate of discharge may be in form as follows: State of Illinois,") ..County, J • The People of the State of Illinois, to the Sheriff of said County, Greeting: Wliereas, , who was on the. ..day of. , A. D. iS..., adjudged an insolvent debtor uuder the laws of this state, by the county court of. county, Illinois, and appointed assignee of his said estate, having pro- duced the receipt of said assignee for the property mentioned in his sched- ule, and the same Iiaving been accepted by the court, it was ordered by the court that the said be discharged from imprisonment and forever re- leased for and on account of any debts by him owing in said schedule mentioned, according to the statute in such case made and provided. You will therefore release the said from imprisonment immedi- ately upon receipt of this order. In testimony whereof, I have hereunto set my hand and affixed [Seal.] the seal of said court, at my office in Illinois, this. ..day of. , A. D. i8.... , Clerk of the County Court. 12. Liberation by officer. — On the productfon of a copy of such order, certified under the seal of the court, the officer having the custody of such debtor, shall forthwith liberate such debtor from arrest or ini prison nient.(^) 13. Recording assignment. — The assignee shall forthwith cause the assignment, or such other conveyance as shall bo made to him on such aasignment, to be recorded in the recorder's office of every county in which there may be real estate of the debtor on which it may operate. (^) 14. Proving demands — notice. — If the estate so assigned, shall, in the opinion of the court, be of sufficient value to justify further proceedings in regard thereto, an order shall be entered (i) Hurd's R., S. Chap. 72, I 11. (3) Hurd's R. S., Chap. 72, I 13. (2) Hurd's R., S. Chap. 72, g 12. 472 INSOLVENCY — INVOLUNTARY ASSIGNMENT [CH. XIX. fixing a time when demands may be proved against the estate of such debtor, and requiring the assignee to give notice to the credit- ors of such debtor of such assignment, and of the time and place when and where they may appear and prove their demands, wliich notice shall be given by personal service, or by mail or otherwise, as the court shall direct,(^) The order fixing the time when demands may be proved against the estate of such debtor, may be in form as follows : State of Illinois, \ ,, In the County Court, County, r-^- At Chambers, , A. D. i8... It appearing to the court, that the estate assigned by , an insolv- ent debtor, is of sufficient value to justify further proceedings therewith; it is therefore ordered that the said , assignee of said estate, give notice to the creditors thereof, which said notices may be either printed or written, or partly printed and partly written, or both, and shall be served by person- al service upon all those who are residents of said county, and by mailing to all those who reside out of said county, notifying them that they may appear at , in , Illinois, and prove their demands against said estate, on the. ..day of. A. D. i8..., the time and place fixed by this court for the hearing thereof, to which time this cause stands continued. assignee's notice to prove claim. Notice is hereby given, that the undersigned has been appointed as- signee of. , and all persons holding any claim or claims against said , are hereby notified to be present and present the same under oath or affirm- ation, at the court house, in , Illinois, on the. ..day of. , A. D. i8..., the time fixed by order of the court for the adjustment thereof. All persons are hereby notified who are indebted to said , assignor.., that they must come forward and make immediate payment of such indebtedness to the undersigned. Dated at , this. ..day of. , A. D. iS... , Assignee. To , , Illmois. Where notices are sent by mail, the affidavit used in the chap- ter on assignment for the benefit of creditors and list of creditors so notified, the form there given, may be used by the assignee. '') If the service was made by an officer, the return may be in form as follows : I have duly served the foregoing and within notice upon , a credit- or of said estate, by reading, and at the same time delivering him a true copy of the same, as I am therein commanded, on this. ..day of. , A. D. 18. •• , Sheriff. (i) Kurd's R. S., Chap. 72, I 14. (2) Ante page, 396. CH. XrX ] INSOLVENCY — INVOLUNTARY ASSIGNMENT. 473 Any person of lawful aj^e may make the service, but he should file an affidavit tliat he served the same, or in other words, make a sworn return. Where the (^ourt directs the notice to be published, obtain a print^pondendum or capias ad salisfaciendnm, issued in any suit, it shall he the duly of the creditor in such writ to pay the keeper of the jail or sheriff his fees for receiving such jierson and his board for one week at the time the debtor is committed to jail, and before the jaiici- shall Ik- bound to receive the debtor, and in default of such payment, the debtor may be discharged : Provided, the officer having such debt- or in ehai-ge, shall give reasonable notice to the creditor or his agent (i) Hurd's R. S., Chap. 72, ? 27. (3) Kurd's R. S., Cl,a;). 72, ? 29. (2) Hurd's R. S., Chap. 72, 'i 2S. ' i ^ , c j 480 INSOI.VKXCY — INVOLUNTARY ASSIGNMENT. [CH. XIX. or attorney, if M'ithin the county, that such debtor is about to be committed to jail on such writ.('') 31. Further jail fees — unexpended fees. — Should the debtor be detained in jail under such writ for more than one week, it shall be the duty of the creditor, at the commencement of each week, to advance to such jailer the board of the debtor for the suc- ceeding week, and in default of such payment in advance, the debtor may be discharged by such jailer. In case the debtor shall not be detained in such jail for any week for which his board may have been paid in advance, the jailer shall return to the creditor, or his agent or attorney, the amount so advanced for and unex- hausted in boarding.(^) 32. Jail fees — costs, — The amount paid by any creditor (under the j^rovisions of this act) to the jailer, shall be indorsed by the same on the writ on which the debtor was committed, and shall be charged against and collected of the debtor as part of the costs in the suit in which the writ is issued. (^) 33. Effect of discharge of debtor. — The discharge of any person under the foregoing provision of this act, shall be no dis- charge or satisfaction of the demand, judgment or costs upon which he was arrested or imprisoned, or any debt mentioned in such schedule, but the same may be iuforced against the projierty of such discharged person.('') 34. Satisfaction by imprison.aient. — In any case where the defendant arrested upon final process shall not be entitled to relief under the provisions of this act, if the plaintiff' will advance the jail fees and board in manner hereinbefore provided, the defendant may be imprisoned at one dollar and fifty cents per day, until the judgment shall be satisfied, and the officer making the arrest shall indorse the execution "satisfied in full by imprisonment. "(^) 35. False oath. — Any person who shall be convicted of tak- ing a false oath in any proceeding under this act, shall be deemed guilty of willful perjury, and on conviction, shall .suffer the pains and penalties inforced by law therefor. /^j 36. IlULES GOVERNING INVOLUNTARY ASSIGNMENTS — SUFFI- (i) Kurd's R. S., Chap. 72, ? 30. (4) Hurd's R. S., Chap. 72, ? 33. (2) Hurd's R. -S., Chap. 72, 'i 31. (5) Hurd's R. S., Chap. 72, ? 34. (3) Hurd's R. .S.. Cliap. 72, g 32. (6j Hurd's R. S., Chap. 72, ^ 35. CH. XIX.] INSOLVENCY — INVOLUNTARY ASSIGNMENT. 481 CIENCY OF AFFIDAVIT. — An affidavit of a plaintiff in execution to obtain a ca. sa., which declares that the debtor has refused, and still does refuse to surrender his property and estate in satisfaction of an execution, is insufficient. Tlie affidavit should aver that the de- fendant had estate, lands and tenements, goods and chattels, liable to be seized and sold, specifying them, and that he refuses to sur- render them after a personal demand made, if a demand is practi- cable. (') If an officer should refuse to execute a ca. sa., issued upon an insufficient affidavit, he will be protected, nor is he liable for an escape under it, although where he executes it he may pro- tect himself by pleading it.(^) 37. Effect of arrest — at common law and under our STATUTE. — Imprisonment for debt, strictly speaking, is abolished, and the effiicts and consequences of imprisonment for debt at the com- mon law must fail. At common law, seizing the body of a defend- ant in execution operates as a satisfactic-n of the debt, and the plaintiff can have no further process under his judgment; but, where a defendant is arrested under a ca. sa., and a trial had under our insolvent laws, even though ihe verdict may be in favor of the defendant and he be discharged and released from imprisonment, still the debt is not discharged. Xor will the debt be discharged where the jury fail to agree, an:l by agreement of parties the de- fendant is released and discharged from imprisonment. (^) 38. Insolvent debtor can not be compelled to sched- ule. — A debtor arrested on a ca. sa., if found guilty, can not be compelled to schedule, even tho igh found guilty of fraud, upon a trial of that question, although if he desire to do so, he may, in the cases allowed.C*) 39. Fraud — presumption as to fraud. — Fraud can not be shown without proof of the facts. No fraud can be presumed. An insolvent debtor has the right to sell his property to pay his debts, and where the design of such an act may be traced to an honest and legitimate source, equally as well as to a corrupt one, fraud can not be presumed, but must be shown, although it is suffi- (i) Tuttle vs. Wilson, 24 III., 553. (2) /b.; Howard vs. Crawford, 15 Ga., 424. (3) Strode vs. Broadwell, 36 111., 419. (4) Bowden vs. Bowden, 75 111., 143. 482 INSOLVENCY — INVOLUNTARY AS.SIGNMKNT. [CH XIX. ciently proven if the facts and clrcnmstances shown are strong enough to justify the jury in inferring a fraudulent intent.(^) 40. Jurisdiction. — In passing this act, it was the intention of the legishiture to pkice tort feasors u})on the same footing as con- tract debtors, in reUition to imprisonment for debt, where the injury complained of results from mere inadvertance and from no bad design. So, where judgment is obtained against one for a tort not resulting from malice, and such debtor is imprisoned nuder a writ of ccijjids ad satisfaciendum, he may be discharged from im- prisonment the same as a contract debtor.(^) It is otherwise, how- ever, whei'C tlie wrong complained of, and on account of which the judgment was rendered, liad its origin in an intentional wrong. In such a case, tliis law aiTbrds no relief to the imprisoned debtor.(^) A judge of the county court has no authority to entertain an insolvent proceeding and discharge an insolvent, except when sit- ting as a court. In such a proceeding, the plaintiff in the writ, or his attorney, is entitled to notice of the proceeding, so that the riglit to a discluirge may be contested. (^) The rule in this case has been changed by stadite. [See Section 1.) County court is always open for the traiisaction of such business. The statute was passed in 1861. (See laws 18C1, page 105.) 41. Appeal. — Ai)peal lies from the county to the circuit court, in an insolvent proceeding. Where a party is arrested on a ca. sa., a!id denies the grounds for his arrest stated in the plaintiff's affi- davit, and demands a jury to try the question in the county court, and tliey find against him, and the court remands liira back to the officer having him in custody, the order thus made is not a minis- terial, but a judicial act, and is for all purposes, final ; and an appeal lies therefrom.(^) Where an insolvent debtor appeals from the order of the county court reiusing his discharge from arrest for debt, he is not required to appear in person in the circuit court before a trial is had and a verdict found against him. And it is error to dismiss his ap|)eal merely for want of such appearance, where he appears by attorney (i) P.owden vs. Bowden, 75 111., 143. (2) People vs. Greer, 33 111., 213. (3) First National Bank of Flora, vs. Burkett, loi 111., 391. (4) The People <',r. ;r/. Loornis vs. Williamson, 13 III., 660. (5) Bowden vs. Bowden, supra. OH. XIX. J INSOLVENCY — INVOHTNTARY ASSIGNMENT. 483 and demands a trial of tlie issues as to fraud or refusal to surrender his property iu execution. (') 42. Bond on appp:ai.. — Tlie condition required in the bond •riven by a (lel)tor on an appeal from the order of the county court rcfusino; to release him from arrest was as follows : " That he will prosecute his said appeal with effect; and in case ajDpeal is dis- missed, or the order or judgment of tlie county court is affirmed, in whole or in part, he will perform the same, and will appear before and abide whatever decision the circuit court shall make in the l)remises, and pay all costs that may be awarded against him ; and, also, that he will not sell or dispose of any of his estate, pending such apj)eal, but the same shall be forthcoming, and subject to the order of the county court." It was held, this bond does not re- quire a personal appearance before the court, until the case has reached a stage at which it is the province of the coui't to make a decision which the del)tor is required to perform. He is not bound to personally appear until the appeal is dismissed, or, the order of the county court is affirmed, iu whole or in part.'^^j (i) Cooley vs. Culton, 20 111., 40; Maher vs. Iluette, 89 III., 495. (2j Maher vs. Huette, supra. 484 INSOLVKXCY — INVOLUNTARY ASSIGNMENT. [CH. XIX. ADDITIONAL NOTES. 1. Imprisonment for debt— Satisfaction. 2. County court given exclusive jurisdiction. 3. Who may have relief— When malice is not the gist of action. 4. Bail — Imprisonment. 5. Continuance. 6. Verdict— How far conclusive on appeal. 7. Appeal. 8. Credit for imprisonment. 1. Imprisonment — satisfaction. — In any case where the defendant arrested upon final process shall not be entitled to relief under the provisions of the act of 1887, if the plaintiif will advance the jail fees and board in manner hereinl)efore provided, the defend- ant may be imprisoned at $1.50 per day, until the judgment shall be satisfied, and the officer making the arrest shall endorse the execution, "Satisfied in full by imprisonment:" Provided, that no person heretofore or hereafter imprisoned under the provisions of this act shall be imprisoned for a longer period than six months from the date of arrest; and all persons imprisoned under the pro- visions of this act for the period of six months or more at the time this act takes effect shall thereupon be immediately discharged : Provided, hoioever, that no person shall be released from imprison- ment under this act who neglects or refuses to schedule in manner and form as provided by this act.(^) 2. County court given exclusive jurisdiction. — The county court is given exclusive original jurisdiction in applications for discharge from imprisonment hereunder.(^) 3. Who may have relief— when malice is not the gist of action. — Malice is determinable from pleadings, where expressly charged and either admitted or proved, and judgment based on such proof.(^) Malice is the gist of action in action of trespass for assault and battery. (*) A wrong done a creditor and an intention to commit (i) Hurd's R. S., Chap. 73, ? 34, 809. (2) Kitsoa vs. Farwell, 132 111,327. (3; Mahler vs. Sinsheimer, 20 lU.Ap., 401; FlbraNat. Bank vs. Burkett, loi 111., 391. {4) lure Murphy, 109 111., 31. CH XIX ] INSOLVENCY — TNVOLUXTAFIY ASSIGNMENT. 485 the injury are necessary to deprive the debtor of the right to discharge from arrest and im prison meut.(*) Whore malice is the gist of action, an insolvent debtor is not entitled to distiliarge under this section.(') Before petitioner rested his case, the court permitted respondent to offer in evidence the record and files in the case in which the judgment was rendered, for the purpose of proving that malice was the gist of action. This putting in part of respondent's case in advance was not error.(^) 4. Bail — imprisonment. — Enlargement of insolvent debtor to bail by county court, pending his application for discharge, is not escape voluntary or negligent so as to prevent his again being im- prisoned for the same debt.(^*) 5. Continuance. — With defendant's express or implied consent, the court may grant continuance for more than thirty days without losing jurisdiction of defendant's person or of the subject-raatter.(') 6. Verdict — how far conclusive on appeal. — A verdict on a trial of a person imprisoned for debt on a charge of fraudu- lently disposing of his property, and a charge of unjustly refusing to surrender his property, which finds him not guilty of fraud, but guilty of the other ground, is conclusive upon an appeal from an order of remandment upon the question of fraud, expedit reipubliccB ut sit finis litium.i^) 7. Appeal. — On appeal to the circuit court in proceeding to schedule, the finning in the county court being that malice was the gist of action on which defendant was arrested, and denial of per- mission to schedule, the judgment in the circuit court reversing this, and remanding with directions to allow debtor to schedule, is final and appealable.(') 8. Imprisonment — credit. — The defendant is entitled to the credit of $1.50 for every day he is imprisoned under execution, irrespective of whether the duration of imprisonment is sufficient to satisfy the writ in full or not.(^) (i) Mahler vs. Sinsheimer, 20 III. Ap., 401; Flora Nat. Bank vs. Burkett, loi 111., 391. (2) In re Mullin, 118 111., 551; In re Murphy, 109 III., 551. (3) Kitson vs. Farweil, 30 111. Ap., 341. (4) People vs. Hanchett, iii 111., 90. (5) Id. (6) In re Ennor, 105 111., 105. (7) Mahler vs. Sinsheimer, 20 111. Ap., 409. (8) Hanchett vs. Weber, 17 III. Ap., 114. 486 BASTARDY. [CH. XX. CHAPTER XX. BASTARDY. 1. Complaint by mother — form. 2. Warrant — form. 3. Examination — bail — forms. 4. Trial in the county court. 5. Continuance — form of recognizance. 6. Parties may testify. 7. When judgment is for the defendant. 8. When judgment is against defendant — forms. 9. Refusal to give security. 10. Money — how used. 11. Quarterly installments — default in payment — forms. 12. Contempt — lien of judgment. 13. Custody of child. 14. Child not born alive, or dying. 15. Marriage of parents. 16. Limitation. 17. Rules governing the action of bastardy. 18. Pleadings. 19. Annuity. 20. Birth of twins. 21. Escape of defendant. 22. Acquittal of defendant. 23. Marriage of mother. 24. Venue. 25. By next friend. 26. Exceptions. 27. Instructions. 28. Defendant as witness. 29. New trial. 30. Verdict. 31. Fees of State's Attorney. 32. Period of gestation. 33. Evidence. 34. Continuance. 35. Depositions. 36. Action on bond. 37. Appeals and writ of error. 1. Complaint by mother. — When an unmarried woman who shall be pregnant, or delivered of a child which by law would be CH. XX ] BASTARDY. 487 deemed a bastard, shall make complaint to a justice of the peace of the county wiiere site may be so pregnant or delivered, or the person accused may be found, and shall accuse, under oath or affirmation, a person with being the lather of such child, it shall be the duty of such justice to i.>sue a \varrant against the person so accused, and cause him to be brought forthwith Ijefore him, or in case of his absence, any other justice of the peace in such county.(\i The complaint must be in writing, and may be in form a? follows: form of complaint. State of Illinois, | County, J On this day of. , A. D. i8..., personally appeared before me, the undersigned, a justice of the peace, within and for said county, C. D.,of the county and state aforesaid, who, being duly sworn according to law, upon her oaih says, that she is an unmarried woman, and that she [is pregnant with child], which by law would be deemed a bastard. [Or, if the child had already been born, insert wilhvn the brackets as follows: ''Was, on to-wit: the day of. , A. D. i8..., delivered of a ...male child.''] That E. F., of the county and state aforesaid, is the father of such child ; and she prays that a warrant may issue against him, and that he may be dealt with according to law. C. D. Subscribed and sworn to before me, this day of , i8-.. A. B., Justice of the Peace. 2. Warrant. — The warrant shall be directed to all sheriffs, coroners and constables in the State of Illinois, and may be exe- cuted by any such officer in any county.('^) warrant for bastardy. State of Illinois,) ^ County, i The People of the State of Illinois, to all Sheriffs, Corotiers and Constables in said State, Greeting: Whereas, C D, of county, and State of Illinois, has this day made complaint on oath before me, A B, a justice of the peace, in and for said county, that she is pregnant with child, \_or, that she on, etc., gave birth to a ..male child,'] which by law would be deemed a bastard, and that E F is the father oi said child. We, therefore, command you that you arrest the said E F, and bring him before the said A B, Esq., a justice of the peace of said county, or in (i) Kurd's R. S., Chap. 17, ? i; Drennan vs. Douglas, 102 111., 341. (2) Kurd's R. S., Chap. 17, § 2 ; Pease vs. Hubbard, 37 111., 257. 488 BASTARDY. [CH. XX. case of his absence, before any other justice of the peace of the said county, tt answer said charge, and be dealt with according to law. Given under my hand and seal, this. ..day of. , A. D. i8... A B, Justice of the Peace. 3. Examination — bail,. — Upon his appearance, it shall be the duty of said justice to examine the woman, upon oath or affirma- tion, in the presence of the man alleged to be the father of the child, touching the charge against him. The defendant shall have the right to controvert such charge, and evidence may be heard as in cases of trial before the county court. If the justice shall be of opinion that sufficient cause appears, it shall be his duty to bind the person so accused, in bond, with sufficient security to appear at the next county court, to be holden in such county, to answer to such charge ; to which court said warrant and bond shall be returned, except that in the county of Cook, where said wan-ant and bond shall be returned to the criminal court of Cook county. On neg- lect or refusal to give bond and security, the justice shall cause such person to be committed to the jail of the county, there to be held to answer the complaint.(^) BOND FOR APPEARANCE AT THE COUNTY COURT. Know all men by these presents, that we, E F, G H and I J, of the county of. , and State of Illinois, are held and firmly bound unto the People of the State of Illinois "f the penal sum of.. .dollars, to be paid to the said people, for -.vhich payment well and truly to be made, we bind our- selves, our heirs, our executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, rod dated this. ..day of , A. D. i8... Whereas, complaint has been made before A B, one of the justices of the peace in and for the said county of , by C D, of said county, that she is an unmarried woman and is now pregnant with child, [or Ms been delivered of a child^ which by law would be deemed a bastard, and that E F is the father of said child : Whereupon the said justice issued a warrant and caused the said E F to be brought before him to answer the charge and to be further dealt with according to law ; and upon the examination of said justice, of the said C D, touching the said charge, and upon due con- sideration thereupon had, the said justice was of the opinion, that sufficient cause appeared, and did adjudge and determine that the said E F enter into bond with a good and sufficient security to appear at the next county court, to be held in and for the said county of , and State of Illinois, to answer such charge. (i) Kurd's R. S., Chap. 17, \ 3. CH. XX ] BASTARDY. 489 Now, tlierefore, tlie condition of tliis obligation is such, that if tlie above bounden E F shall a[)i)ear at tlie next county court, to be held in and for the said count)' of , [after the birth of said child,] [if the facts show the child to have been already born, the zuords in brackets may be otnitted,) and answer to the said charge, and n>)t depart the court without leave, then this obligation to be void, otherwise to reiuain in force. A F F Fl s 1 Signed, sealed and delivered in I G li Fl' s'l presence of j j j/[l;s;] commitment on neglecting or refusing to give bond. State of Illinois, • Count}', / The People of the State of Illinois, to any constable of said county ; and to the sheriff or keeper of the county Jail of said county : Whereas, complaint has been made before A B, one of the justices of the peace of the said county, by C D, of said county, an unmarried woman, that she is pregnant with child; which by law would be deemed a bastard, and that E F is the father of said child. Whereupon the said justice issued a warrant, and caused the said E F to be brought before him, to answer to the said complaint, and to be dealt with according to law, and, upon exam- ination of the said C D, upon oath, in the presence of the said E F, touching the said charge, and upon due consideration thereupon had, the said justice was of opinion that auflicient cause appeared, and did adjudge and determ- ine that the said E F enter into a bond to appear at the next county court, to be held in and for the said county of.... , to answer such charge, and the said E F having refused to give such bond and security, you, the said constable, are therefore, hereby commanded forthwith to convey the said E F to the common jail of the said county, and deliver him to the sheriff or keeper thereof, together with this precept ; and you, the said sheriff or keeper, are hereby required to receive the said E F into your custody, in the said jail, there to be held to answer such complaint until he shall give such bond and security, or until he shall be dischaiged by due course of law. Given under my hand and seal, this. ..day of. , A. D. iS... A B, justice of the Peace, [l. s.] 4. Trial in the county court. — The county court or the said criminal court of siicli county, at its next term, sliall cause an issue to be made uji, \vlicther the person cliargcd, as aforesaid, is the real father of the child or not, which issue shall he tried by a jiuy. When the [)crson changed, :i])[)i'ais iiiul denies the charge, he shall have the right to controvert, by all legal evidence, the truth of such charge. (^) (i) Hurd's R. S., Chap. 17, I 4- 490 BASTARDY. [CH XX. Any term of the court, whether for probate business alone or otherwise, has jurisdiction to try a complaint for bastardy. A re- cognizance taken in accordance with the provisions of Section 3, is forfeited if the defendant fails to aj)pear at the first term thereafter, 5. Continuance. — If, at the time of such court, the woman be not delivered, or is unable to attend, the court shall order a recog- nizance to be taken of the person charged as aforesaid, in such an amount, and with such securities as the court may deem just, for the appearance of such person at the next court, after the birth of herchikl; and sliould such mother not be able to attend at the next term after tlie birth of her child, the recognizance shall be continued until she is able.(^) The form of such recognizance may be as follows : Know all men by these presents, that we, E F, G H and I J, of the county of , and State of Illinois, are held and firmly bound unto the People of the State of Illinois, in the penal sum of.. .dollars, to be paid to the said People, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this. ..day of , A. D. i8... The condition of the above obligation is such, that whereas the above bounden E F, was, on the. ..day of. , A. D. iS-.., before A B, one of the justices of the peace in and for the county of , and State of Illinois, examined on a charge of bastardy preferred against him, by C D, the com- plaining witness, and was, by such justice of the peace, recognized to appear before the county court of the said county of. , and State of Illinois, at the present term thereof, to answer unto said charge ; and whereas, the child of the complaining witness, C D, which by law would be deemed a bastard, is not yet delivered, and said cause has been continued in accord- ance with the provision of the statute in such case made and provided, until the first term of said court after the birth of said child ; and said E F, has, by the said county court, been required to enter into a recognizance for his appearance at that term, to answer unto such charge, in the sum of... dollars. Now, if the said E F shall well and truly be and appear before the said county court, at tiie next term after the birth of said child, and shall not depart the court without leave, and obey its orders in the premises, then the above obligation shall be void, otherwise to remain in full force and effect. • ^ E F [i s 1 Signed, sealed and delivered m I q j_j k" 'A presence of. ( j J, [l! s'.] Approved by me, this. ..day of , i8... , Judge of the County Court. (i) Kurd's R. S., Chap. 17, ? 5. CH. XX ] BASTARDY. 491 6. Pauties may testify. — On tlie trial of every issue of bastardy, the mother and defendant sliall be admitted as competent witnesses, and their credibility shall be left to the jury. (') 7. When judgment is for the defendant. — If, upon trial of the issue aforesaid, the jury shall find that the child is not the child of the defendant, or alleged father, then the judgment of the court shall bii that he be discharged. The woman making the complaint shall pay the costs of the prosecution, and judgment shall be entered therelbr, and execution may thereupon issue. (^) 8. AVlIEN JUDGMENT IS AGAINST DEFENDANT. — lu Case thc issue be found against the defendant, or reputed father, or when- ever he shall, in opcm court, have confessed the truth of the accu- sation against him, he shall be condemned by the order and judg- ment of the court, to })ay a sum of money not exceeding one hund- red dollars for the first year, after the birth of such child, and a sum not exceeding fifty dollars yearly, for nine years succeeding said first year, for the support, maintenance and education of such child, and shall moreover, be adjudged to pay all the costs of the prosecution, for which costs execution shall issue as in other cases. And the said reputed father shall be required by said court to give bond with sufficient security, to be approved by the judge of said court, for the priymcnt of such sum of money as shall be ordered by said court as aforesaid, which said bond shall be made l)ayable to the People of the State of Illinois, and conditioned for the due and faithful payment of said yearly sum, in e(pial quarterly installments, to the clerk of said court, which bond shall be filed and preserved by the clerk of said court.(^^) In case the issue be found against the defendant, the following is a form of final order: State of Illinois,) In ike County Court, Cuunty, j To the Term, A. D. \'&... The People of the State of lUinois, 1 on the Relation of C D, 1 Bastardy, E .F And now, on this day, the same \n:\\v^ tlie... judicial day of the present (r) Kurd's R. S., Chap. 17, ? 6. (3) Kurd's R. S., Chap. 17, I 8. (2) Kurd's R. S., Chap. 17, \ 7. 492 BASTARDY. [CH. XX. term of this court, come the said plaintiff, by , attorney, also, come the said defendant, by , his attorney, and this cause coming on now to be heard, before the court and a jury: It was ordered, that a jury be called; whereupon, come the following jurors, to-wit: \^Here insert the names of thejui'ors'], twelve good and lawful men, who were duly empanneled, tried and sworn to try the cause and a true verdict render, according to the evi- dence : Whereupon, the parties plaintiff and defendant, introduced evidence to the jury, and the jury having heard the evidence, the arguments of the counsel, and received the instructions of the court, retired in charge of an officer to consider of their verdict, and having duly considered thereof, the said jury returned into open court with their verdict, in words and figures as follows, to-wit : We, the undersigned, jurors, in the case of the people of the State of Illinois, on the relation of C D vs. E F, find the said E F, the defendant, to be the father of the said bastard child, of the said C D. [Signed by alt the jurors.^ Which said verdict is received and ordered to be recorded, and said jury discharged from any further consideration of this cause : Whereupon the said defendant, by his counsel, moves the court to set aside said verdict, and grant the said defendant a new trial herein, and ask the time until , to file tlie specific reasons why said motion should be allowed ; which said time is granted by the court as asked. And afterwards, to-wit: on the... day of this term, come again the parties, by their respective attorneys, and the said defendant having filed his reasons for a new trial, the same came on now to be heard by the court, and the court having heard the arguments of counsel and having duly considered thereof, and being now sufficiently advised and satisfied in the premises, overrules said motion ; to which de- cision of the court in overruling said motion, the defendant by his counsel, then and there excepted. Whereupon the counsel for the plaintiff, moves the court for judgment upon the verdict of the jury ; and the court being now sufficiently advised and satisfied in the premises, as to what order and judgment should be made and entered in this cause, doth order and ad- judge : That the said E F do pay to the clerk of this court, for the support, maintenance and education of the bastard child of the said C D, the sum of one hundred dollars, for the first year after the birth of said bastard child, which was born on the. ..day of. , A. D. iS... ; and fifty dollars for each year for nine years thereafter; such payments to be made in equal quarterly installments, to-wit: on the first days of , , and , of each year. And it is further ordered, that said defendant give bond in the sum of.. .dollars, with security to be approved by the court, for the payment of the several sums of money hereinbefore ordered to be paiJ by the said de- fendant, conditioned for the due and faithful payment of said yearly sums in equal quarterly installments, to the clerk of this court, according to the statute in such case made and provided, and that the said defendant be committed to the custody of the sheriff until he complies with this order. And it is further ordered by the court, that if the said defendant shall neglect or refuse to give said bond and security so ordered by the court, he CH. XX.] BASTARDY. 493 shall be committed to the common jail of the county, there to remain until he shall comply with such order, or until otherwise discharged by due course of law. The dcfeudant shall be placed in the custody of the sheriff, until he gives bond on final judo-nient. The constitutional prohibi- tion of imprisonment for debt, has reference only to debts arising ex contractu, and has no reference to torts or to a proceedino- under the bastardy act.(') The bond inay be in form as follows: ss. St.\te of Illinois, \ County, J Know all men by these presents, that we, E F, G H and I J, of the county of. , and State of Illinois, are held and firmly bound unto the People of the State of Illinois, in the penal sum of.. .dollars, to be paid to the said People, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this. ..day of. , A. D. i8... The condition of the above obligation is such, that whereas, the above bounden E F, was, at the term, A. D. i8..., of the county court of. county, and on to-wit: the. ..judicial day of said term, before the Hon , Judge, presiding, and a jury, found guilty of being the father of a. ..male bas- tard child, on a charge of bastardy preferred against him by C D, the mother of said child: Whereupon the court did order and adjudge that the said E F do pay to the clerk of this court for the support, maintenance and edu- cation of the bastard child of the said C D, the sum of one hundred dollars for the first year after the birth of said child ; which was born on the. ..day of- , A. D. iS-.., and fifty dollars for each year, for nine years thereafter, such payments to be made in equal quarterly installments, to-wit : on the first days of. , , , and , of each year. Now, therefore, the condition of this obligation is such, that if the above bounden E F shall well and truly pay or cause to be paid, the said install- ments of money as they may become due, to the clerk of this court, for the uses and purposes set forth in the order and judgment of this court ; and shall fully comply with the order and judgment of this court rendered in said cause ; and with all the terms and conditions thereof, then this obliga- tion to be void, otherwise to remain in full force and effect. Signed, sealed and delivered in I ^ & f^" ^'"^ the presence of f G H, [l. s.] ) I J, [l. s.] Taken and approved by me, tiiis.-.day of. , A. D. iS... , Judge of the County Court. (i) Rich vs. People, 66 111., 514. 31 494 BASTARDY. [CH. XX. 9. Refusal, to give security. — In case the defendant or reputed fatlier shall refuse or neglect to give sucli security as may be ordered by the court, he shall be committed to the jail of the county, there to remain until he shall comply with such order, or until otherwise discharged by due course of law. 10. Money, how used. — The money, when received, shall be laid out and approi)riated for the support of such child in such manner as shall be directed by the court; but when a guardian shall be appointed for such bastard, the money arising from such bond, shall be paid over to such guardian. (^) 11. Quarterly installment — default in payment. — Whenever default shall be made in the payment of a quarterly in- stallment, or any part thereof, mentioned in the bond provided for in the foregoing section, the county judge of the county, or the ju^ge of the criminal court in Cook county, wherein such bond is filed, shall, at the request of the mother, guardian, or any other person interested in the support of such child, issue a citation to the principal and sureties in said bond, requiring them to appear, on some day in said citation mentioned, during the next term of the county court of said county for probate business, or of the said criminal court, and show cause, if any they have, why execution should not issue against them for the amount of the installment or installments due and unpaid on said bond, which said citation shall be served by any sheriff or constable of the county in which such principal or sureties reside or may be found, at least five days before the term day thereof, and if the amount due on such installment or installments, shall not be paid at or before the time mentioned for showing cause as aforesaid, the said county judge shall render judg- ment in favor of the People of the State of Illinois, against the prin- cipal and sureties who have been served with said citation, for the amount unpaid on the installment or installments due on said bond, and the costs of said proceeding ; and execution shall issue from said county court against the goods and .chattels of the person or persons against whom said judgment shall be rendered, for the amount of said judgment and costs, to the sheriff of any county in the state where the parties to said judgment, or either of them, re- side, or have property subject to such execution. (^) (i) Kurd's R. S., Chap. 17, § 10. (2) Hurd's R. S., Chap. 17, § 11. CH. XX.] BASTARDY. 495 The request or petition for a citatiou above referred to, may be in form as follows : State of Illinois. | In the County Court, County, ]^^- To the Term, A. D. i2,... To the Hon , Judge of said Court : Your petitioner, C D, by her attorney, would respectfully represent and show unto your honor, that at to-vvit: the term, A. D. i8-.., of this hon- orable court, one E F was found guilty of being the father of a. ..male bas- tard child of your petitioner, and required to give bond to be approved by your honor, in the sum of.. .dollars, with and , as his sureties, conditioned for the faithful payment of the order and judgment of this court, rendered in said cause upon the trial thereof. And your petitioner would further show, that by the order of said court, and the terms and conditions of said bond, the said E F was condemned to pay one hundred dollars for the first year after the birth of said child, and fifty dollars for each year, for nine years thereafter; commencing from the day of the birth of said child, to-wit: , i8..., in equal quarterly installments, to the clerk of this hon- orable court. Your petitioner would further show, that by the terms and conditions of said bond, (the same being now on file in this honorable court, and reference being had and made thereto for greater certainty,) the second installment of twenty-five dollars, due for the support, maintenance and education of said bastard child, was due and payable on the. ..day of...... A. D. i8..., but that the same has not been paid by the said E F, nor by any one for him, to the clerk of this court or to your petitioner : Wherefore, she prays that a citation may issue for the said E F, as well, also, for the said G H and I J, the sureties on his bond ; commanding them and each of them, to appear before this honorable court at its next term, A. D. i8... ; and on the. ..day thereof, to show cause, if any they have, why execution shall not issue against them for the amount of the installment or installments, due and unpaid on said bond. And your petitioner will ever pray, etc. By , her Attorney. ' CD. The statute provides, that upon the filing of such request or pe- tition, the judge of the county court shall order the clerk to issue a citation against the said princip.il and his sureties. The citation may be in form as follows : State of Illinois, County, The People of the State of Illinois, to the Sheriff or afiy Constable of said County, Greeting: Whereas, C D has represented liy petition, filed in the county court of said county, at the term, A. D. i8..., that E F, as principal, and G H and 496 BASTARDY. [oH. XX. I J, as sureties upon the bastardy bond given by the said E F, at the term, A. D. i8-.., upon his being found guilty of being the father of the ...male bastard child of the said C D, have made default in the payment of the. ..installment, due for the support, maintenance and education of said bastard child, and have violated the terms and conditions of said bond : You are therefore, hereby commanded to cite and give notice, to the said E F, G H and I J, as aforesaid, that they be and appear before our county court of county, Illinois, at the next term thereof, to be holden at the court house, in , on the. ..day of. , A. D. i8, then and there to show cause, if any tliey have, why e.xecution shall not issue against them, for the amount of the installment due and unpaid on said bond. And hereof make due service and return as the law directs. Witness , Clerk of said County Court, at , Illinois, this [l. s.] ...day of. , A. D. i8... .......... County Clerk. The sheriff or other officer having the same, will serve the cita- tion, and then return the .same back into the office of the county clerk. The service should beat least five days before the term day thereof. The return may be in form as follows : State of Illinois, I ^^ County, I I have duly served the within citation, by reading the same, to the within named E F, G H and I J, as I am therein commanded, this. ..day of. , A. D. i8... , Sheriff of County, Illinois. At the term to which the citation is issued, the judge shall pro- ceed to hear and determine the cause, and if the amount due on such installment or installments, shall not be paid at or before the time mentioned for showing cause as aforesaid, the county judge shall render judgment in favor of the people of the State of Illinois, against the principal and sureties who have been served with said citation, for the amount unpaid on the installment or installments, due on said bond and the costs of this proceeding, and execution shall issue therefor. The judgment may be in form as follows : The People of the State of Illinois,! for the use, etc., ! Judgment on an Installment vs. I Due on a Bastardy Bond. E F, G H and I J. J And now, on this day, comes the said People of the State of Illinois, by , attorney, and the said E F, G H and I J, by , attorney, and CH. XJt.] BASTARDY. 497 this cause coming on now to be heard before the court, and the court hav- ing heard all the evidence and the argument of counsel, and being now sufficiently advised and satisfied in the premises, it is ordered, that the said plaintiff have and recover of the said defendants, the sum of twenty-five dollars, the same being the amount of the. ..installment due on the. ..day of. , i8..., of the bastardy bond given by the said E F, as principal, and G H and I J, as sureties, to the People of the State of Illinois aforesaid, for the support, education and maintenance of the bastard child of the said C D. And it is further ordered, that the defendants pay all the costs of this proceeding, and that execution may issue for the amount of the judgment and costs so rendered as aforesaid in this cause. 12. Contempt — lien of judgment. — And said county judge shall also have power, in case of default in the payment, when due, of any installment or installments, or any part thereof, in the con- dition of said bond mentioned, to adjudge the reputed father of such child guilty of contempt of said court, by reason of the non- payment as aforesaid, and to order him to be committed to the county jail of said county, until the amount of said installment or installments, so due, shall be fully paid, together with all costs of said commitment, and in the obtaining and enforcing of said judg- ment and execution, as aforesaid. But the commitment of such reputed father, shall not operate to stay or defeat the obtainino- of judgment and the collection thereof by execution as aforesaid : Pro- vided, that the rendition and collection of judgment, as aforesaid, shall not be construed to bar or hinder the taking of similar pro- ceedings for the collection of subsequent quarterly installments on said bond, as they shall become due and remain unpaid : And, Pro- vided, further, that if the county judge, or any other person inter- ested in the support of such child, shall deem it necessary, in order to secure the payment or collection of such judgment, that the same should be made a lien on real estate, a transcrijit of said proceed- ings and judgment shall be made by the clerk of said county court, and filed and recorded in the office of the clerk of the circuit court of said county, in the same manner and with like effect as transcripts of judgments of justices of the peace are filed and recorded, to make the same a lien on real estate ; and execution and other process shall thereupon issue for tiie collection of said judgment, as in case of other judgments in said circuit court ; and the provisions of this section shall, as far as applicable, apply to all bonds which have 498 BASTARDY. [CH. XX. heretofore been taken in pursuance of the statutes in regard to bastardy.(^) 13. Custody of child. — The reputed father of a bastard child, shall not have the right to the custody or control of such child, if the mother is living aud wishes to retain such custody and control, until after it s-hall have arrived at the age of ten years, unless, upon petition to the circuit court of the county in which the mother re- sides, it shall, on full hearing of the facts in the case, after notice to the mother, be made to appear to the judge of said court, that said mother is not a suitable person to have the control aud custody of such child. (^) 14. Child not born alive or dying. — If the said child should never be born alive, or being born alive, should die at any time, and the fact shall be suggested upon the record of the said court, then the bond aforesaid shall from thenceforth be void.(^) 15. Marriage of parents. — If the mother of any bastard child, and reputed father, shall, at any time after its birth, inter- marry, the said child shall, in all respects, be deemed and held legitimate, and the bond aforesaid be void.(*) 16. Limitation. — No prosecution under this act shall be brought after two years from the birth of the bastard child : Pro- vided, the time any person accused shall be absent from the state shall not be computed.(^) 17. Rules governing the action of bastardy. — A prose- cution for bastardy, is a civil proceeding.(^) A writ of error may be sued out by the people, and were it a criminal proceeding, this could not be allowed. C) So far as the arrest and trial are concerned, the form is criminal •,[^) and it may be tried at a criminal term.(^) In the means of coercing a compliance with the order and judgment of the (i) Kurd's R. S., Chap. 17, ? 11. I2) Hurd's R. S., Chap. 17, ? 13. (3) Hurd's R. S., Chap. 17, \ 14. (4) Hurd's R. S., Chap. 17, ^ 15. (5) Hurd's R. S., Chap. 17, I 16. (6) The People vs. Starr, 50 111., 52; Mann vs. The People, 35 111., 467; Maloney vs. The People, 38 111., 62 ; Alison vs. The People, 45 111., 37 ; Da- vis vs. The People, 50 111., 199; The People vs. Christman,66 111., 162: Peak vs. The People, 76 111., 2S9; Holcomb vs. The People, 79 111., 409; Lewis vs. The People, 82 111., 104; McElhaney vs. People, i Bradwell, 550; Rawlings vs. People, 102 111., 475 (7) The People v."^ Noxon, 40 111., 30. (8) Holcomb vs. The People, supra. (9J Kelley vs. The People, 29 111., 287. CH. XX.] BASTARDY. 499 court, or having execution of the judgment, it is essentially criminal in form and effect. The public has such an interest in the prosecution and the support of the child, as to declare or treat it as a misdemeanor, and thus enforce the judgment by imprisonment, until the order is complied with, precisely as in cases of fines recovered for misdemean- ors, or similar offenses against the public. Although a prosecution under the bastardy act is civil, as distinguishable from a criminal prosecution, the constitutional provision relating to imprisonment for debt, has reference only to debts arising ex contractu. It has no reference to torts or to a prosecution under the bastardy act.(^) Thousrh criminal in form, it is not essential to a conviction that the evidence of guilt should exclude every reasonable doubt, a mere preponderance of evidence is sufficient. The sole power of originating proceedings against the reputed father, rests with the mother,(^) and she may settle and dismiss the complaint.(^) If she be an infant, however, at the time the settle- ment was made, it does not bar her action. (*) 18. Pleadings. — The complaint is required to be in writing ;(®) and it is a sufficient allegation of time in a bastardy proceeding, if it is stated that the mother was between the first and fifteenth days of July, 1853, made pregnant; or, if she alleges, that on or about a certain day, the child was begotten, it is sufficient.(^) Forjnal pleadings are not necessary, where there is a sworn com- plaint which shows the character of the charge against the defendant, and the record shows a plea of not guilty, the issue thus made, is sufficient.C'') A non-resident female may prosecute the putative father in the courts of this state, as our statute is not limited in its operation to residents of the state. And where a suit is instituted by a mother, who at the time is a non-resident, no bond for costs is required to (i) Kelly vs. The People, 29 111., 287; Rich vs. The People, 66 III., 513; State vs. Palin, 63 N. C, 471 ; Reynolds vs. Lamount, 45 Ind., 308; Paulk vs. State, 52 Ala., 427. (2) Burgen vs. Straughan, 7 J. J. Marsh, (Ky.) 583 ; Harter vs. Johnson, 16 Ind., 271 ; Jones vs. The People, 53 111., 366. (3) Coleman vs. Frum, 3 Scam., 378; Holcomb vs. The People, 79 111., 409; Baker vs. Roberts, 14 Ind., 552; McElhaney vs. People, i Bradvvell, 550. (4) State vs. Wilson, 21 Ind., 273. (5) Constitution, Art. I, | 6, page 54. (6) Beals vs. Furbish, 19 Me., 496. (7) People vs. Woodside, 72 111., 407.- 500 BASTARDY. [CH. XX. be filed, as our statute in regard to costs, does not apply to such cases.(^) County courts are vested with full power and jurisdiction to hear and determine a case of bastardy, and this in addition to the jurisdiction conferred by the county court act, nor is any section of the county court act, in conflict with, or repugnant to the bastardy aet.(*) Where the evidence shows the child was born alive, the pro- ceedings are not abated by its death. And, where the suit was instituted while living, in case the reputed father is found guilty, the court should oi'der the payment of so much of the amount fixed by the statute as shall have accrued between the birth and death of the child. (^) Nor will the death of the mother abate a bastardy proceeding commenced during her life.C) 19. Annuity. — The annuity allowed for the support of the bastard, should commence at its birth. (^) 20. Twins. — Where the complaint charges the defendant of being' the father of a child, which, when born, will be a bastard, and, subsequently the woman m iking the complaint, gives birth to twins, it is not erroneous to render judgment, upon conviction, for the payment of the same amount as if only one child had been born.(^^j The father of two bastard children, born at one birth, is chargeable for the maintenance of both.(^) 21. Escape. — An officer who negligently permits the escape of a prisoner, arrested for bastardy, is liable to the prosecutrix for damages. (^) 22. Acquittal. — Where a justice discharged a person accused of beino' the father of an illegitimate child, it was held to be no bar to a subsequent prosecution for the same offense. {^) So, if the time of the child's birth is wrongly stated in the warrant, an acquittal of the defendant will not be a bar to a subsequent proceeding, on a warrant which avers the time truly. Nor will a judgment on a (i) Kolbe vs. People, 85 111., 336. (2) People vs. Woodside, 72 111., 407. (3I Meredith vs. Wall, 14 Allen, (Mass.) 155; Hinton vs. Dickenson, 19 Ohio St., 583; Hauskins vs. The People, S2 111., 193. (4) The People vs. Nixon, 45 111., 353. (5) Kelly vs. The People, 29 111., 287. (6) Connelly vs. The People, 81 111., 379. (7) Hall vs. Commonwealth, Hard., (Ky.) 479. (8) Pease vs. Hubbard, 37 111., 257. (9) Davis vs. State, 6 Blackford, (Ind.) 494. CH. XX.] BASTARDY. 501 recognizance, for failure to appear and answer be a bar to the same charge.(') 23. Marriage. — It is improper to dismiss a proceeding in bastardy upon the prosecutrix's marriage with a man other than the defendant; for, the reputed father is nevertheless chargeable with the maintenance of the bastard child.(^) 24. Venue.— The woman not being a party to a bastardy pro- ceeding, but a witness, can not make application for a change of venue.(^) 25. Prochein ami. — It is proper for the county court, after a motion to dismiss a proceeding by the defendant, commenced by an infant, to allow a prochein ami to enter as prosecutor.('*) 26. Exceptions. — Exceptions to the rulings of the court must be made and entered in the lower court. The refusal to quash the affidavit and writ thereon, because the complaint was made by a person other than the mother, cannot be assigned for error. Nor can it be availed of on motion in arrest of judgment. So, too, ob- jections to insufficiency of proof on formal questions, must be made in the lower court.(^) 27. Instructions. — An instruction which states that the de- fendant may be found guilty on a preponderance of evidence, is not erroueous.(^) Although an instruction may contain a correct prop- osition of law, if the substance has been given in other instructions and it can be seen that its refusal made no difference in the result of the trial, its refusal will not be any ground for a reversal of the judgment.^ Where it is stated in an instruction that "it is not incumbent upon the people to show, by a clear preponderance of evidence, that the defendant is the father of the child charged to be his in the complaint; but it is sufficient, if the evidence creates probabilities in favor of that opinion, and the weight inclines to that side of the question," it is erroneous. (*) So, too, an in- (i) Burnet vs. Commonwealth, 4 T. B. Mon., 108 ; Commonwealth vs. Thompson, 3 Litt., (Ky.,) 284. (2) State vs. Ingram, 4 Hay w., (Tenn.) 221 ; Roth vs. Jacobs, 21 Ohio, 646. (3) Duftries vs. State, 7 Wis., 672; State vs. Smith, 55 Ind., 385. (4) Coomes vs. Knapp, 11 Vt., 543. (5) Jones vs. The People, 53 111., 366 ; Cook vs. The People, 51 111., 143; Hauskins vs. The People, 82 111., 193. (6) Lewis vs. The People, 82 111., 104. (7) Holcomb vs. The People, 79 111., 409. (8j Peak vs. The People, 76 111., 289. 502 BASTARDY. [CH. XX. struction that the maxim, false in one statement, false in all, should only be applied in cases where a witness willfully and knowingly gives false testimony, and if the jury believe from the evidence, that the defendant, or any other witness, has intentionally sworn falsely as to one matter, the jury may properly reject his whole statements and testimony as " unworthy of belief," was held to be erroneous, as being too broad, the words " unless corroborated," should have been added.(^) An instruction to the jury that if they believed that the witness was mistaken as to the day, but, from all the evidence, that the defendant is the fiither, they should find for the complainant, was held to be correct.(^) 28. Witnesses. — The putative father is a competent witness to testify in his own behalf.(^) It is for the court to decide upon the competency of a witness, and for the jury to determine what credi- bility shall be given to his testimony.(*) 29. New trial. — The rule is well established, that where the jury has been properly instructed, and where the testimony is con- tradictory and irreconcilable, a new trial will not be awarded.(^) . 30. Verdict. — A verdict of "guilty," is responsive to the charge in such a proceeding, and is substantially good. A more formal verdict would be guilty of being the father of the child. (^) 31. Fees of state's attorney. — The State's attorney is al- lowed the sum of ten dollars upon the trial of any person under the provisions of the laws concerning bastardy. C^) 32. Gestation. — Writers upon medical jurisprudence, fix no definite period of gestation. Ten lunar months or forty weeks, equaling 280 days, to forty-three weeks, or 291 days, is considered by most authorities to be the usual period of gestation. Nine cal- endar mouths and one week is equal to teu lunar months. In- stances have been given, however, of fully developed children, which were born after a gestation of only 251 days, while on the other hand, cases are reported where the period of gestation has ex- (i) Peak vs. The People, 76 111., 289. (2) Spivey vs. State, 8 Ind., 405. (3) The People vs. Starr, 50 111., 52. (4) Kelly vs. The People, 29 111., 287. (5) Holcomb vs. The People, 79 111., 409; Connelly vs. The People, 81 111-) 379- (6j Davis vs. People, 50 111., 199. (7) Kurd's R. S., Chap. 53, | 8. CH. XX.] BASTARDY. 503 tended to 29G days. Out of thirty well defined cases observed, the period of gestation varied from 283 days to one case where it ex- tended to 313 days.(^) 33. Evidence. — The defendant can not introduce evidence of his general good character.(^) Where, however, other witnesses testify that the prosecutrix has made statements in reference to the paternity of the child, inconsistent with her testimony upon the stand, she may call witnesses to sustain her general good character for truth.(^) Evidence showing a resemblance of the child to its alleged father, is not admissible.('*) It is competent to show that the re- puted father is impotent, and if true, and proven, it will be a com- plete and satisfactory defense.(^) The statements or acknowledg- ments of the reputed father, as to the relations which he sustained to the mother, are competent.(^j The day on which it is alleged the prosecutrix became pregnant, Ls no more material than in any other class of cases. She may be mistaken as to the date, yet if the jury believe from the evidence, that the defendant is the father, they should find him guilty, as it matters not on what day he became so.(''^) And, where the time and place at which the child was begotten, is supported, on a trial, by proof that intercourse took place between the parties, at the time and place named, and also at another time and place, and that the child was begotten by one of these acts of intercourse, it is sufficient, even if the prosecutrix does not know at which of these times the child was begotten.(^) Neither is it essential, to support a verdict of guilty in a bas- tardy proceeding, that it shall appear that the period of gestation was for the usual length of time — the evidence being otherwise sat- (i) Taylor's Med. Jur., C. 65, pages 639 to 657; Beck's Med. Jur., vol. I, pages 595 to 602; Wharton & Stille's Med. Jur., Part i, Book 2, Chap. 3, Sees. 41 to 73. (2) Walker vs. State, 6 Blackf., (Ind.) i ; Low vs. Mitchell, 18 Me., 372. (3) Sweet vs. Sherman, 21 Vt., 23. (4) Young vs. Makepeace, 103 Mass., 50; United States vs. Collins, 1 Cranch., (Ct.J 592; Kennisten vs. Rowe, iS Me., 38; Contra, Paulk vs. State, 52 Ala., 427. (5) State vs. Broadwell, 69 N. C, 411. (6) Sale vs. Crutchlield, 8 Bush., (Ky.) 636, (7) Holcomb vs. The People, 79 111., 409. (8) Bassett vs. Abbott, 4 Grey, (Mass.) 69. 504 BASTARDY. [CH. XX. isfactory in that regard.(*) And, where it is shown the prosecutrix was delivered of a child, and there is no evidence to the contrary, it will be presumed it was born alive from the ordinary course of nature. (*) It is not admissible to prove that the mother's general reputa- tion for chastity was bad before her connection with the defendant, and that previously she had frequent intercourse with other men;(^) or that she was in the habit of associating with young men, whose reputation for chastity was bad ; or that she had intercourse with other men more than ten calendar mouths before the birth of the child, unless there be evidence that the period of gestation was unusually protracted.(*) So, too, acts of intercourse with other men than the reputed father, twelve months before the birth, are inadmissible.(^) Such evidence is too remote.(^) While the prosecutrix can not be asked generally whether prior to the time when she says she was begotten with child by the defend- ant, she had sexual intercourse with other men,(') yet she having been examined on the trial as a witness for the state, may be asked, on cross examination, whether she had sexual intercourse with any other person than the defendant about the time when she said the child was begotten.(^) The rule is, that the time must be limited to a period, such as to admit of the possible inference that the child in question derived its paternity from such intercourse.(^) The inquiry being thus restricted to a proper time, it is competent.(^*') Thus, the mother having sworn to a single act of intercourse, and the child being born eight and one-half months thereafter, evi- dence of intercourse with other men during the fortnight before, and the fortnight after that act, is admissible ; but, notwithstand- ing, the doubt which might be raised as to the paternity of the child by prosecutrix's connection with other men, at about the time (i) Cook vs. The People, 51 111., I43- (2) Mann vs. The People, 35 111., 467- (3) Commonwealth vs. Moore, 3 Pick., (Mass.) 194. (4) lb. (5) Eddy vs. Gray, 4 Allen, (Mass.) 435. [409. (6) Sabines vs. Jones, 119 Mass., 167; Holcomb vs. The People, 79 111., (7) Townsend vs. State, 13 Ind., 357. (8) Lowe vs. Mitchell, 18 Me., 372; Walker vs. State, 6 Blackf., (Ind.) I. (9) Bowen vs. Reed, 103 Mass., 46 ; Holcomb vs. The People, supra. (10) Duffries vs. State, 7 Wis., 672. CH. XX.] BASTARDY. 505 it was begotten, yet other facts may be introduced sufficient to sat- isfy the jury of the defendant's liability. (^) Where the prosecutrix testified that the child was begotten in a certain month, or the next month following, and could not be any more definite as to the time, it appearing that about the date at which the child was prol^ably begotten, allowing the ordinary period of gestation, being about the first of the former month de- signated by her, she had sexual intercourse with several men, and it not being shown that there was anything peculiar in one of the connections or attending circumstances, which enabled her to de- termine that the child was begotten at that time, the evidence was held not sufficient to authorize a finding that the defendant was the father of the child.(2) Where the only proof of the charge was the unsupported testi- mony of the prosecutrix, who testified she gave birth to the child on the 15th day of August, 1871, the result of a single act of inter- course with the defendant, in the middle or latter part of Novem- ber, 1870, and that this was the only act of intercourse she had ever had with either the defendant or any other person : Where the defendant denied the charge i.i all its parts, and proved by an- other witness that he himself had sexual intercourse with the com- plainant as often as once, and sometimes twice a week, during the months of October and November, 1870, and that during her preg- nancy, she informed him of her condition, and inquired of him what he was going to do about it : Where two other witnesses test- ified to having seen the prosecutrix, and still another person in the direct act of sexual intercourse, in the months of October and No- vember, 1870 : Where it appeared that the prosecutrix had also informed her father, that the father of the child lived in another county from that the defendant lived in ; that her father went there to see the person on the subject : The witnesses on the part of the defendant being unimpeached, the court held, taking all the testi- mony, it was too unsatisfactory to fix the paternity of the child upon the defeudant.(^) A prosecution for bastardy, being a merely civil proceeding, the (i) O'Brien vs. Slate, 14 Ind., 469 ; State vs. Pratt, 40 Iowa, 631. (2) Whitman vs. State, 34 Ind., 360. (3) McCoy vs. Tiie People, 65 111., 439 ; Jones vs. The People, 53 111., 366. 506 BASTARDY. [CH. XX. defendant may be found guilty on a preponderance of evidence.(^) The jury must determine from all the evidence, whether the prosecutrix is entitled to greater or less weight on any point in the c^se, than other witnesses. That depends upon the degree of fidelity with which she and they adhere to the truth. When the mother of a bastard child swears that the defendant is its father, and the defendant swears that he is not, and they are of equal credibility, the one oifsets the other, and, unless there is other testi- mony given or circumstances proved, which give the preponder- ance to the plaintiff, the defendant should be acquitted.^) A jnry may infer that the mother of a bastard child is an unmarried woman, from the fact appearing that the defendant paid his attentions to her as such.(^) 34. Continuance. — An affidavit for a continuance should show the witnesses are material, the facts expected to be proven by the witnesses, and that the affiant knows of no other witness by whom the same facts can be proven. It should show where the witnesses were at the time the application was made, so that the court could know that they were not within its jurisdiction, and either that effi.)rts have been made to procure the attendance of the witnesses, or that such effi^rts would have been ineffiectual for that purpose; that there is a reasonable pros])ect of obtaining the testi- mony of the witnesses at some future time, and that the application is not made for delay, but that justice may be done.('*) 35. Depositions. — In cases of misdemeanors, the depositions of absent witnesses may be taken by consent.(^) So, in a case of prosecution under the bastardy act, if it appear that the attendance of material witnesses on the part of the defend- ant can not be procured, he may offer to join in a commission with the opposite party to take thoir dejiositions, and, if it appear that due diligence has been employed, if such offer be not accepted, the court in its discretion, may grant continuances from term to term, until the other party will join in the commission. And in (i) Lewis vs. People, 82 111., 104. (2) McFarland vs. The People, 72 111., 36S. (3) Cook vs. People, 51 111., 143. (4) Richardson vs. The People, 31 111., 170. (5) King vs. Morphew, 2 Maule & Sel., 60^. ; Roscoe's Crim. Ev., 55; Mariner vs. Dyer, 2 Me., (2 Greenl.) 172. CH. XX.] BASTARDY. 507 case the commission be joined in by both parties, then the court will continue the cause until the next term.(^) 36. Bond. — A bond is defined to be a deed, and the words, ex vi termini, import a sealed instrument. Although it contains the words, " Sealed with my seal," etc., when there is no seal or scrawl attached, it will not make it a bond or sealed instrument.^ ) A recognizance to support a bastard child, though not taken conformably to the "statute, may be good at common law.Q So is a bond voluntarily given.(^) A bond given by a father of an illegitimate child to its mother, in consideration of her agreement to dismiss a prosecution pending against him, is founded upon a valid consideration. (^) An infant charged with bastardy, may be required to give bond with sureties, and his infancy is no defense, either for him or his sureties, to an action on such bond.(^) The surety on a bastardy bond, upon the death of the reputed father, has a right to petition the county court for a discharge from the bond, and to support the same by affidavit.^) The surety on a bond, taken before a justice of the peace, is released by the appearance of the reputed father at the next term of the circuit court, and the continuance of the case. He is only bound that the defendant will appear at and during that term, and not depart without leave, and abide the judgment and order of the court in the premises.(^) A bond without a seal is not a compliance with the laws, and is not binding on the obligors. And where an action of debt is brought upon an instrument declared to be a bond or sealed instru- ment, and the writing produced on oyer has no seal, the variance is fatal, and may be taken advantage of on demurrer.'^^j At common law, the conditions of a bond may be valid in part and void in part, if they are severable one from the otlier,(^"'j and the (i) Richardson vs. The People, 31 111., 170.. (2) Chilton vs. the The People, 66 111., 501. (3) State vs. Mason, 2 Nott & M. I., S. C, 425. (4) Commissioners vs. Gilbert, 2 Strobh., (S. C.) 152. (5) Coleman vs. Frum, 3 Scam., 378. (6) McCall vs. Parker, it, Met., (Mass.) 372. (7) Hoch vs. Lord Thacli, Mass. Cr. Cas., 263. (8) Burr vs. Wilson, 50 Ind., 5S7. (9) Chilton vs. The People, supra. (10) Pigot's Case, 11 Coke, 27. 508 BASTARDY. [CH, XX. same principle is applicable to statutory bonds in cases wheje the statute is silent as to the effect of a departure from the statutory form.(^) If one charged with bastardy, enters into a recognizance before a justice of tlie peace for his appearance at the next term of the county court, to answer the charge, which recognizance provided that " he should not depart the court without leave," and after trial was had, finding him guilty and requi]-ing him to give bond, he fled without leave, this was manifestly a breach of the bond.(^) A justice has power to take recognizance, and declare it forfeited on the failure of the reputed father to appear according to the con- ditions of his recognizance. Where a declaration in debt is brought on such a recognizance, and it fails to aver that there was a default in appearance before the justice of the peace, and that he certified the recognizance, with the record of default to the circuit court of the county, such declaration is bad on a general demurrer, as these are statutory requirements essential to a right of recovery. The recognizance being a statutory oblio-ation, its provisions must be complied with, to authorize a recovery.(^) A suit on a bastardy bond simply determines the liability of the obligors in the bond to the people of the State of Illinois. Hence, a suit instituted in the name of the mother, instead of for the benefit of the county judge, to the use of the infant child, can neither affect the rights of the county judge or any other person in reference to the money recovered-C*) The fact that the instrument sued on in the declaration, is called a recognizance, is no error. An error in the appellation does not close the eyes of the court to the real character of the instrument — it is a bond. Neither is it ei-ror that a judgment was rendered for the penalty of the bond, $600, to be discharged on the payment of $500 dam- (i) Newman vs. Newman, 4 Maule & Sel., 70; Marlett vs. Wilson, 30 Ind., 240; Erlinger vs. The People, 36 111., 458; Anderson vs. Foster, 2 Bai- ley, 501 ; United States vs. Brown, Gilpin's Rep., 178; Vroom vs. Exr. of Sm'ith, 2 Green, (N. J.) 480; Commonwealth vs. Pearce, 7 Mon. 317. (2) Chilton vs. The People, 66 111., 501 ; Simmons vs. Adams, 15 Vt., 677; People vs. Jayne, 27 Barb., (N. Y.) 58; Tracy vs. Howe, 119 Mass., 228. (3) The People vs. Green, 58 111., 236. (4) Erlinger vs. The People, supra. CH. XX.] BASTARDY. 509 »«:« and costs of suit, the bond not being given for the support of tlie child, but to secure tlie appearance of the obligors at court.(') A judgment on a recognizance, for failing to appear and answer to a prosecution, is no bar to another prosecution for the same charge.(^) 37. Appeal — error. — Under the constitution, the supreme court iiave api)ellate jurisdiction: And Art. 6, Sec. 19, of the con- stitution, provides, that "Appeals and writs of error, shall be allowed from the final determination of county courts, as may be provided by law." The statute having provided no appeal or writ of error from the judgment of the county court, in bastardy proceedings, to the circuit court, it follows, that such judgments may be reviewed by this court, on writ of error to the county court, to prevent a failure of justice.(^) In Peak's case, supra, it was held, that by the county court act of 1872, no appeal was given to the circuit court in bastardy cases, but the right of aj)peal is given from the county court to the circuit court, by the act of 1874.(*) And where the appeal is taken to the circuit court, the case will be tried de novo.i^) A prosecution for bastardy, being a civil, and not a criminal proceeding, it is not embraced in the statute of 1879, relating to appeals in ci'iminal cases, which provides that in criminal cases below the grade of felony, the appeal from the county court shall' be taken directly to the appellate court.(^) But the sum which a defendant is condemned to pay in a bastardy ease, is so much in the nature of a penalty, as not to be included in the class of cases not a])pealal)le from the appellate court to the supreme court, where the amount involved is less than $1,000.('') (i) Erlinger vs. The People, 36 111., 458. fa) Commonwealth vs. Thompson, 3 Litt., (Ky.) 2S4. (3) Peak vs. The People, 76 111., 2S9; Haines vs. People, 97 111., 162. (4) Holcomb vs. The People, 79 111., 409; Lewis vs. The People, 82 111., 104; Rawhngs vs. People, 102 111., 475; Stanley vs. People, 84 111., 212. (5) Hauskinsvs. The People, 82 111., 193; Stanley vs. People, j-///?'a. (6) Ravvlings vs. People, supra. (7) I(>. 32 510 BASTARDY. [cH. XX. ADDITIONAL NOTES. 1. Bond for security. 2. Release from liability — Compromise— Judge of the county court to consent. 3. Liability of the father when the mother marries another man. 4. Subsequent marriage of the mother — Effect upon her rights. 5. Bastardy maintainable by a non-resident. 6. Complaint. 7. Prosecution — C'vil proceedings — May be tried at probate terms. 8. No appeal lies from appellate to supreme court. 9. Evidence — What may be introduced 10. What is inadmissible. 11. In bastardy proceedings. 12. Bond. 13. What an erroneous appeal. 14. When error to dismiss suit. 15. Appeal lies direct to appellate court from county court. 1. Bond for security. — The act of 1889, approved June 4, amends section 9 of the act of 1872 to read as follows : " In case the defendant shall refuse or neglect to give such security as may be ordered by the court, he shall be committed to the jail of the county, there to remain until he shall comply with such order, or until otherwise discharged by due course of law. Any person so committed shall be discharged for insolvency or inability to give bond : Provided, such discharge shall not be made within six months after such commitment."(^) 2. Release from liability — compromise. — At the same session, section 17 of the statute, by act approved June 3, 1889, was amended to read as follows : " The mother of a bastard child, before or after its birth, inay release the reputed father of such child from all legal liability on account of such bastardy, upon such terms as may be consented to by the judge of the county court of the county in which such mother resides : Provided, a release obtained from the mother in considera- tion of a payment to her of a sum of money less than four hundred dollars ($400), in the absence of the written consent of the county judge, shall not be a bar to a suit for bastardy against such father; (l) Hurd's R. S., Chap. 17, § 9, 201. CH. XX ] BASTARDY. 511 but if, after such release is obtained, suit be instituted against such father, and tlie issue be found against him, he shall be entitled to a set-off for the amount so paid, and it sliall be accredited to him as of the first payment or payments : Aiid provided, further, that such father may compromise all his legal liability, without the written consent of the county judge, by paying to her any sum not less than four hundred dollars ($400).'V) 3. Liability of the father when the mother marries ANOTHER MAN — The natural father of a child cannot be held for its support, under the bastardy act, if the mother, after the child was begotten, and during pregnancy, contracts a marriage with another man, who marries her with full knowledge of her condition. The man so marrying consents to stand in loco parentis to such child, and is presumed in law to be the father of the child, and this pre- sumption is conclusive. This rule, however, can have no relation to actions where questions of heirship and inheritance are involved, but is coiilined to proceedings under the bastardy act.(^) 4. SUBSF.CJIIKNT MARRIAGE OF THE MOTHER EFFECT UPON HER RIGHTS. — The complaint during pregnancy, and before delivery of the child, can only be made by an unmarried woman; but after delivery, while she is single, the subsequent marriage of the mother will not prevent her from making complaint against the reputed father of the child. The true construction of the statute is, that the mother shall be unmarried at the time the child is born; and the word " unmarried," in the law, does not properly relate to the time of making the complaint. But the marriage of the mother of an illegitimate, after delivery, to one not its father cannot affect the status of such child, and render the husband liable for its support.(^) 5. Bastardy maintainable by non-resident. — Bastardy is maintainable by a non-resident woman against the putative father of her child in the courts of this state. (*) (i) Kurd's R. S., Chap. 17, § 17, 202. (2) Miller vs. Anderson (Ohio), 3 N. E. Reports, 605, State vs. Romaine, 58 Iowa, 48; Rhyne vs. Hoffman, 6 Jones' Eq., N. C., 335; Tioga Co. vs. South Creek Tp., 75 Pa. Stat., 433; Parker vs. Way, 15 N."H., 45; Vetten vs. Wallace, 39 111. Ap., 390; Davis vs. Houston, 2 Yeates, 289; State vs. Wilson, 10 Ired., N. C, 131; State vs. Herman, 13 Ired., 502; Page vs. Dennison, i Grant, Kas.,577; State vs. Shoemaker, 62 Iowa, 343; Glidden vs. Nelson, 15 111. Ap., 297. (3) People ^.ar. ri?/. vs. Volksdorf, 112 111,, 292; Vetten vs. Wallace, supra. (4) Mings vs. People, 11 1 111., 98, 512 BASTARDY. [oH. XX. 6. Complaint. — Under the revised statutes of Illinois, chapter 17, section 1, which provides that " When an unmarried woman, who shall be pregnant or delivered of a bastard child, shall accuse, under oath, a person with being the father of such child, such per- son shall be held to answer the charge," an affidavit in the following form : "The complaint of M. N., an unmarried woman, under oath, who says that she is now pregnant with a child, and that said child is likely to be born a bastard," is insufficient, as the affiant does not make oath therein that she is unmarried.(^) 7. Prosecution — civil proceedings. — A prosecution under the bastardy act is a civil proceeding, primarily within the jurisdic- tion of county courts at their probate terms. (^) 8. No appeal. — A judgment against the putative father in a proceeding in bastardy is necessarily less than one thousand dollars, and in the absence of a certificate of importance, no appeal will lie from the decision of the appellate com .[^) Bastardy being a civil proceeding, the court has power to permit amendments, and the complaint is amendable by virtue of chapter 7, section 1, 111. E,. S., which provides that "The court in which an action is pending shall have power to permit amendments to any process, pleading or pro- ceeding in such action. "(■*) 9. Evidence — what may be introduced. — It is within the discretion of the court to allow competent evidence to be introduced at any time before the case is submitted to the jury. (^) 10. What is inadmissible. — Evidence as to acts of impropriety on the part of the prosecuting witness, with parties other than the defendant, at times outside the period of gestation, should not be admitted. (^) Writings that tend to show that at the time of the making thereof the defendant considered himself to be the father of the child in question are proper to be introduced. C^) Evidence tending to prove the poverty of the mother, or that she named the child after the reputed father, is inadmissible. (^) Nor is it proper (i) Maynard vs. People, 135 111., 416. Ts) People ear. rel. vs. Stevens, 19 111. Ap., 405. (3) Scharf vs. People, 134 111., 240; People vs. Stevens, supra. (4) Maynard vs. People, supra. (5) Guinea vs. People, 37 111. Ap., 450. (d) Scharf vs. People, supra, overruling Rawlings vs. People, 102 111., 475. (7) Miene vs. People, 37 111. Ap., 589. (8) Corcoran vs. People, 27 111. Ap., 638. A CH. XX.] BASTARDY. 513 to introduce the bastard child in evidence for the purpose of showing a resemblance between it and the defendant. (^) 11. In bastardy proceedings. — Evidence is competent to show that the woman had been out late at night with other men and boys; that a witness had had sexual intercourse with tlie relatrix; and evidence to corroborate the testimony of a witness, as the fact of their being on friendly and intimate terms. And if it were shown in evidence that the defendant had made purchases for the relatrix, it would be proper to permit him to show that such pur- chases were made at the request of her brother. And where a witness for the defendant has testified that he was present where and at the time tne defendant was said to have made certain admissions, and that he did not hear them, it would be error to refuse to allow him 10 testify whether he would have heard them had they been made.(*) [f the issue be whether the defendant had sexual intercourse with a certain woman at a particular time, and the direct testimony is con- flicting, evidence of corroborative circumstances is not rendered inadmissible by the fact that it also tends to prove seduction and attempt to produce abortion. (') The admission of evidence as to the attention ot other men is inadmissible. (*) The precise time of the coition, if it be within the proper time of gestation, is immaterial, even though the complaining witness may have fixed the time definitely, except as affecting her credibility. (^) And where the child was born June 18, 1888, upon inquiry as to paternity of the child, questions for the purpose of ascertaining whether or not the relatrix had had illicit intercourse with other men than the defendant between August 14 and September 12,1887, were proper. (^j In a prosecution for bastardy, where the evidence was conflicting and a right to convict doubtful, the court, on the part of the People, instructed the jury that the People were not bound to prove, beyond a reasonable doubt, that the defendant was the father of the bastard child, and added: "If, upon a consideration of all the evidence, (i) Robnett vs. People, i6 111. Ap., 299; Co?itra, State vs. Smith, 54 Iowa, 104. (2) Maynard vs. People, 135 111., 416. (3) lb. (4) Curran vs. People, exr. rel., 35 III. Ap., 275. (5) Ross vs. People, 34 111. Ap., 21. (6) Pike vs. People, 34 111. Ap., 112. 514 BASTARDY. [CH. XX. you are inclined to believe he is the father of such child, then you should so find by your verdict." There was no other instruction in the record curing the error: Held, that the instruction was erroneous. Jurors are required to decide cases according to their conviction of the truth of the matter found by their verdict, and not their mere inclinations. (') It is competent for the parties to make a settlement and release that will bar a prosecution, if the release is not vitiated by fraud in its procurement. In order to make false statements fraudulent, the party alleged to have been defrauded must have been ignorant of the truth, and must have relied upon the statements made.(^) An agreement on the part of the putative father in anticipation of the birth of the child, that he will adopt the child and make it his heir, will be no bar to a prosecution for bastardy, or to an action for damages with respect thereto.(^) 12. Bond. — A bond given in a bastardy proceeding conditioned that the defendant shall appear at the next term of the court and answer to the charge, and not depart the court without leave, is not met by the appearance of the defendant, a trial and a judgment against him. He must comply with the judgment, and should he flee the state the conditions of the bond would be broken, and an action will lie against the obligors. If the bond be regarded as a rocognizauce, then its conditions require the defendant to appear on the first day of the term, and from day to day, and from term to term, until the final sentence or order of the court. It is not extending the liability upon the bond for the parties and sureties to agree in open court by parol to continue the cause. Such an agreement is an agreement of record, and will operate as an estoppel. (*) A judgment order entered which required the condition of the bond to be given by the defendant for the support of the child should make the installments payable to the county judge was error. The installments should be paid to the clerk of the court, as now required.(^) The statute requiring that a person accused of being the father (i) Cox vs. People, 109 111., 457. (2) Hendrix vs. People, 9 111. Ap., 42; Kurd's R. S., Chap. 17, § 17, 202; Gurley vs. People, 31 111., Ap., 465. (3^ Wallace vs. Rappleye, 103 111., 229. ^4) People vs. Ogden, 10 111. Ap., 226. (5) Moore vs. People, 13 111. Ap., 248. CH. XX.] BASTARDY. 515 of a bastard child, on a complaint by the mother before a justice of the peace, must give bond, with sureties, to appear and answer such complaint at the next term of the court, to abide the order of the court thereon, does not except infants, and in an action on such bond the infancy of the obligor is no defense.(^) 13. What an erroneous judgment. — A judgment in the circuit court in a bastardy proceeding affirming that of the county court and remitting the case to that court for execution is erroneous in form.(^) 14. When error to dismiss suit. — It is error to dismiss a suit brought under the bastardy act on account of the death of the pros- ecuting witness. (^) Where the defendant shows due diligence in endeavoring to procure testimony of important witnesses, he should be ginntod a con tin nance. (*) 15. Appeal lies direct to appellate court. — An appeal does not lie direct to the appellate court from the judgment of a county court in a bastardy proceeding. (^) To the contra, see L"^ vs. The People, where the supreme court held an appeal does lie direct to the appellate court.(^) (i) McCall vs. Parker, 13 Metcalf, 372; People vs. Moores, 4 Denio, 518. (2) Church vs. People, 26 111. Ap., 232. (3) People vs. Smith, 17 111. Ap., 597. (4) Common vs. People, 28 111. Ap., 230. (5) Rodgers vs. People, 34 111. Ap., 448; Lee vs. People, 40 111. Ap., /9. (6) Lee vs. People, 30 N. E. Reporter, 690. 516 TRIAL OF THE RIGHT OF PROPERTY. [cH. XXI. CHAPTER XXI. TRIAL OF THE RIGHT OF PROPERTY. 1. Proceedings for— Jurisdiction— forms. 2. Trial in county court— form of Judge's entry. 3. Notice to plaintiff in execution. 4. Service of notice— continuance. 5. Notice by publication. , 6. Affidavit of complainant. 7. Time of giving notice— forms. 8. Entering appearance. 9. Trial— pleadings— jury. 10. Trial by jury— forms of venire, &c. 11. Subpoenas for witnesses. 12. Judgment— exempt property— costs. 13. Appeal— bond— trial de novo. 14. Judgment— indemnity. 15. Apportionment of costs— fees— form. 16. Rules governing the action of the trial of the right of property. a. Notice. b. Jurisdiction. c. Jury. d. Evidence. e. Title. /. Effect of judgment. g. Bailment. h. Competency of witnesses. i. Verdict. j. Appeal. By an act of the General Assembly of 1875, approved April 9, 1875, taking effect July 1, 1875, jurisdiction was conferred upon the county court to try the right of property, whenever the execu- tion or writ of attachment issued from any court of record. 1. Jurisdiction given. — Wiienever an execution or writ of attachment, issued from any court of record, shall be levied by any sheriif or coroner upon any personal property, and such property shall be claimed by any person other than the defendant in such execution or attachment, or shall be claimed by the defendant in execution or attachment as exempt from execution or attachment, CH. XXI ] TRIAL OF THE RIGHT OF PROPERTY. 617 by virtue of the exemption laws of the state, by giving to the sher- ilFor coroner notice, in writing, of his claim, and intention to pros- ecute the same, it shall be the duty of such sheriff or coroner to notify the judge of the county court of such claim. (^) The notice under this section to be given the sheriff or coroner, may be in form as follows : State of Illinois, \ County, /•^•^• To , Sheriff of County, Illinois: Take notice: That I , claim the following personal property, and intend to prosecute my claim to the same, to-wit : One bay horse, called "John," 5 years old last spring ; one Wood's self-rake reaper and mower com- bined; one Milburn wagon, with side boards and spring seat, and one two- year old heifer, levied on by you on the. ..day of. , A. D. i8..., as the property of C D, by virtue of an execution issued out of the circuit court of. county, Illinois, in favor of E F, plaintiff, and against the lands and tenements, goods and chattels of the said C D, defendant. By , Attorney. A D. After the notice has been given to the sheriff or coroner as afore- said, it is the duty of that officer to notify the judge of the county court, which said notice may be in form as follows : State of Illinois, )^ County, J To the Hon .Judge of the County Cotirtof. County: I respectfully notify your Honor, that the following described personal property, to-wit: One bay horse, called "John," five years old last spring; one Wood's self-rake reaper and mower combined ; one Milburn wagon, with side boards and spring seat, and one two-year old heifer, levied upon by me, on the. ..day of. , i8..., as the property of , by virtue of an execution issued out of the circuit court of county, in favor of E F, plaintiff, against the lands and tenements, goods and chattels of the said C D, defendant, to me delivered, has been claimed by A D, who has given me notice in writing of h... claim, and of h... intention to prosecute the same according to the statute in such case made and provided. Dated this....day of , A. D. i8.... , Sheriff of. County. 2. Trtat. IN" COUNTY COURT. — The judge of the county court shall thereupon cause the proceeding to be entered on the docket of (i) Kurd's R. S., Chap. 140(7, \ i. 518 TRIAL OF TSE RIGHT OF PROPERTY. [cH. XXl. the county court, and the claunant shall be made plaintiff in the proceeding before the county court, and the plaintiff in the execu- tion or attachment shall be made defendant in such proceedings.(^) FORM OF judge's ENTRY. In the Matter of A D vs. E F. Goods levied on as the property of C D, and claimed by A D. Notice received by me, ...day of. , A. D. i8... , Judge of the County Court. The clerk will docket this proceeding, and notify the plaintiff in the execution that the trial will occur on the. ..day of , A. D. i8... , Judge of the County Court. 3, Notice to plaintiff. — The clerk of tlie county court shall thereupon issue a notice, directed to the plaintiff in the execu- tion or attachment, notifying him of such claim, and of the time and place of trial, which time shall be not more than ten days nor less than five days from the date of such notice.^ The form of notice may be as follows : State of Illinois, ) ^^ County, J * The People of the State of Illinois, to , Greeting: Whereas, the following described personal property, to-wit : One bay horse, called "John," five years old last spring ; one Wood's self-rake reap- er and mower combined; one Milburn wagon, with side boards and spring seat, and one two-year old heifer, levied upon by , sheriff of said county, as the property of , by virtue of an execution issued out of the circuit court of county, in favor of , plaintiff, against the lands and tene- ments, goods and chattels of the said C D, defendant, has been claimed by A D, who has given said sheriff notice in writing of h... claim, and of h... intention to prosecute the same according to the statute in such case made and provided. You are, therefore, hereby notified that said claim will be tried before the county court of said county, at the court house in , in said county, on the. ..day of , A. D. i8..., at. .. o'clock. ..m., when and where you can appear and contest said claim. Witness, , Clerk of our said County Court, and the seal [Seal.] thereof, at his office in , in said county, this. ..day of. , A. D. i8... , Clerk of the County Court. (i) Hurd's R. S., Chap. 140.7, ? 2. (2) Kurd's R. S., Chap. 140a, § 3. CH. XXI.] TRIAL OP THE RIGHT OF PROPEHTY. 5l9 The officer shall serve the same and make return thereof as follows : State of Illinois, 1 County, J I have duly served the within notice by reading and delivering a true copy of the same to the within named , on this. ..day of. , A. D. i8... .Sheriff. 4. Service op noticp:. — Such notice shall be served by the sheriff or coroner of any county where the plaintiff in execution or attachment may be found, in like manner as summonses in chan- cery are served, at least five days before the day of trial ; and if such notice shall be served less than five days before the day of trial, the trial shall, on demand of either party, be continued for a period not exceeding ten days.(^) 5. Notice by publication. — In case the sheriff or coroner shall make return on such notice that the plaintiff in the execution or attachment can not be found, the proceeding shall be continued for a period not exceeding ninety days, and the plaintiff in the exe- cution or attachment shall be notified of such proceeding by publi- cation, in like maimer as non-resident defendants are notified in chancery cases. (^) 6. Affidavit of complainant. — Whenever any complainant or his attorney, shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant i-csides or hath gone out of this state, or on due inquiry can not be found, or is concealed within this state, so that process can not be served upon him, and stating the place of residence of such defend- ant if known, or that upon diligent inquiry his place of residence can not be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, and if there be no news- paper published in his county, then in the nearest newspaper pub- lished in this state, containing notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case; and he shall also, within ten days of the first publication of such notice, send a copy thereof by m lil, addressed to such defendant whose place of resi- (i) Hurd's R. S., Chap. 140a, g 4. (2) Kurd's R. S., Chap. 140^, ? 5. 520 TRIAL OP THE RIGHT OF PROPERTY. [CH. XXI. dence is stated in such affidavit. The certificate of the clerk that he has sent such notice in pursuance of this section, shall be evidence. (^) 7. Time of giving notice. — The notice required in the preceding section may be given at any time after the commence- ment of the suit, and shall be published at least once in each week for four successive weeks, and no default or proceeding shall be taken against any defendant not served with summons, or a copy of the bill, and not appearing unless forty days shall intervene between the first publication, as aforesaid, and the first day of the term at which such default or proceeding is proposed to be taken. (^) In case the return of the sheriff shows the defendant can not be found, or service can not be had for any cause shown under the above section, an affidavit may be made by the plaintiff in compli- ance with section 12 above. The affidavit may be in form as follows : State of Illinois, 1 In the Coimty Coiirt, County, J In Vacation after the term, A. D.i^... A D , vs. y Trial of the Right of Property. A D ) vs. \ E F. j A D, the above named plaintiff, on oath states, that E F, the above named defendant, is not a resident of the State of Illinois, and that he re- sides in Subscribed and sworn to before me, this. ..day of. , A. D. i8... , Clerk of the County Court. As directed under section 6, the clerk shall thereupon give notice by publication, which may be in form as follows: State OF Illinois, ) ^ J. _ __ In the County Court, A D] vs. [ E F.j County, / In Vacation after the term, A. D. i?,.. Trial of the Right of Property. Affidavit of the non-residence of E F, the above named defendant, whose place of residence is , having been filed in the clerk's office of the county court, notice is, therefore, hereby given to you, the said E F, that the plaintiff, on the. ..day of. , A. D. i8..., filed her notice of claim to (i) Kurd's R. S., Chap. 22, ? 12. (2) Hurd's R. S., Chap. 22, § 13. CH. XXI.] TRIAL OF THE RIGHT OF PROPERTY. 521 the property, and of her intention to prosecute the same, levied upon by virtue of an execution issued out of the circuit court of county, IlHnois, in favor of you, the said , as plaintiff in execution, and against the lands and tenements, goods and chattels, of C D, defendant in execution, and that thereupon a notice to you as plaintiff in such execution, issued out of said court, returnable on the. ..day of. , A. D. i8..., at. .. o'clock. ..m., ot said day, at the court house, in county, Illinois, as required by law, which said notice was duly returned in my office on the. ..day of. , A. D. i8..., with an indorsement thereon, that you, the said E F, can not be found in county, Illinois, whereupon said cause was continued to the... day of. , A. D. i8..., and publication ordered against you, as required by the statute in such case made and provided. Now, unless you the said , shall be and appear before the said court on the said. ..day of. , A. D. i8..., at the court house in , county, Illinois, and defend said cause, a judgment will be entered against you, and in favor of the said plaintiff, for the possession of said property and costs of suit. Dated. ..day of. , A. D. i8... [l. s.] , Clerk County Court. By , Attorney. The clerk shall, in all cases, where the post office address of the defendant has been shown by the affidavit on file, mail within ten days after the first pnblication of such notice, a copy of the notice to said defendant, addressed to him at his post office, and file a certificate of the same in his office, which may be in form as follows : State of Illinois, \ •County, J ■^1 A , vs. } (Copy of Notice herein Referred to.) E I, , clerk of the county court of said county, in the state aforesaid, do hereby certify, that on the. ..day of. , A. D. 18..., being within ten days after the first publication of the notice hereunto appended, I sent by mail a copy of the annexed notice to , defendant, at , in pursuance of section 12 of an act of the general assembly of the State of Illinois, entitled " An Act Regulating the Practice in Courts of Chancery," approved March 15, 1872. Witness my hand and the seal of said court, this. ..day of. , A. D. 18... [l. s.] , Clerk of the County Court. 8. Entering appearance. — If the plaintiff in the execution or attachment, or his attorney, shall, at least five days before the day of trial, file with the clerk of the county court a paper, enter- 522 TRIAL OF THE RIGHT OF PROPPRTY. [CH. XXI. ing his appearance iu such proceeding, then it shall not be necessary to notify such plaintiff as above provided. (^j The form for entering the appearance of the plaintiff may be as follows : State of Illinois,) In the County Court, County, J In Vacation after the term, A. D. i^-.. A D) vs. \ Trial of the Right of Property. E F J E F, the defendant, in the above entitled cause, waives the issuing and service of process upon him, and hereby enters his appearance in this cause. 9. Trial — pleadings — jury. — The trial shall be had with- out written pleadings, before the county judge, in the same manner as other trials before the county court, and. may be by a jury if either party demand one.C^) 10. Trial by jury. — If a jury shall be demanded by either party, the judge shall direct the county clerk to issue a venire for twelve competent jurors, unless the ])arties to such proceedings shall elect to have the same tried by six jurors, and deliver the same to the sheriff' or coroner, who shall sumuion such jurors from the body of the county, to be and appear before such court at the time set for the return of such venire ; and if, by reason of non-at- tendance, challenge or otherwise, said jury shall not be full, the panel may be filled by talesmen. Said court shall have the same power to compel the attendance of jurors and witnesses, as the circuit court has, and shall be governed by the same rules in impanneling a form of a venire for a jury. State of Illinois, \^^ County, J The People of the State of Illinois Jo the Sheriff of said County, Greeting: You are hereby commanded, without delay, to summon tiuelve good and lawful men of your county, to be and appear before our county court, within and for the county of , at the court house in llie town of , in said county, on the. ..day of. , A. D. iS..., at. .. o'clock. ..m., and so from (i) Hurd's R. S., Chap. 22, ? 6. (3) Kurd's R. S., Cliap. 140a, § 8. (2) Hurd's R. S., Chap. 140^, § 7. CH. XXr.] TRIAL OF THE RIGHT OF PROPERTY. 523 day to day, until discharged by the court, then and there to serve as jurors in a certain cause now pending in said court, wherein A D is plaintiff, and E F is defendant. And have you then and there this writ, with an endorsement thereon in what manner you shall have executed the same. Witness , Clerk of said Court, and the seal thereof, at , [l. s.] this. ..day of. , A. D. i8... , Clerk County Court. RETURN OF OFFICER. In pursuance of the mandate of the within writ, I have executed the same by summoning, as directed in the said writ, the following named per- sons from the body of the county, to-wit: \_Here insert the names.'] , Sheriff. 11. SuBPCENAS FOE WITNESSES. — The county clerk shall issue subpoeuas for ^vitnesses on the demand of either party.(^) A praecipe filed with the clerk, is a demand whicli will entitle the parties to witnesses, and may be in form as follows : State of Illinois, "I /« the County Court, County, J "^ ■ /« Vacation after the term, A. D. iS... A D ) vs. ]■ Trial of the Right of Property — Praecipe for Witnesses. E F.J The clerk of said court will issue subpoenas for , , , witnesses in the above entitled cause, returnable , A. D. i8..., at. . .o'clock. ..m. Directed to the sheriff of county, Illinois, to execute. Dated this. ..day of. , A. D. 18... By , Attorney. 12. Judgment — exempt property — costs. — In case the property shall appear to belong to the claimant, when the claimant is any other person than the defendant in execution or attachment, or in case the property shall be found to be exempt from execution or attachment, when the claimant is the defendant in the execution or attachment, judgment shall be entered against the plaintiff in the execution or attachment for the costs, and the property levied on shall be released. If it shall appear that the ])ro])erty does not belong to the claimant, or is not exempt from execution or attach- ment, as the case may be, judgment shall be entered against the claimant for costs, and an order shall be made that the sheriff or coroner proceed to sell the property levied ou.,^) (i) Hurd's R. S., Chap. 140a, § 9. (2) Kurd's R. S., Chap. 140^, ? 10. 524 TRIAL OF THE lUGIIT OF PROPERTY. [CH XXI. VERDICT OF THE JURY— TRIAL OF THE RIGHT OF PROPERTY. A D vs. E F. We, the jury, called to try the right of property on a claim made by A D, to the following described goods and chattels, to-wit: One bay horse, called "John," five years old last spring; one Wood's self rake reaper and mower combined ; one Milburn wagon, with side boards and spring seat, and one two-year old heifer, levied upon by , sheriff, by virtue of an exe- cution issued out of the circuit court of. county, Illinois, in favor of E F, plaintiff, and against the goods and chattels, lands and tenements of C D, find that the property of the said goods and chattels so claimed, is in the said claimant. Witness our hands, this-.-day of- ,A. D. iS... The verdict should be signed by all the jury, and conform to their finding ; it may be for all of the property, or a part only, or it may be that, it is not in said claimant. 13. Appeal — bond — trial de novo. — An appeal may be taken to the circuit court, as in other cases : Provided, the same is prayed on the day of the Entering of judgment, and the bond shall be given within five days from the time of entering judgment, and the trial in the circuit court shall be de novo.{^) In order to take an appeal, the same must be prayed on the day of entering the judgment. The bond must be perfected in five days from the time of entering judgment. When these steps are properly taken, it is the duty of the (;lerk of the county court, to make out a transcript of the proceedings and certify the same to the clerk of the circuit court, when the trial shall proceed de novo. The form of an appeal bond may be as follows : Know all men by these presents, that we, E F, G H and I J, of the county of , and State of Illinois, are held and firmly bound unto A D, in the penal sum of.. -dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly, by these presents. Sealed with our seals, and dated at , this---day of , A. D. i8... The condition of the above obligation is such: That whereas, the said A D, did, on the-. -day of. , A. D. i8..., at a term of the county court then being holden within and for the county of , and State of Illinois, obtain a judgment against the above bounden E F, for tlie sum of.. .dollars, costs of suit, in a trial of the right of properiv, from which said judgment the said (i) Hurd's R. S., Chap. 140^, ^ n. CH. XXr.] TRIAL OF THE RIGHT OF PROPERTY. 525 E F has prayed for and obtained an appeal to the circuit court of said county. Now, if tlie said E F shall prosecute his said appeal with effect and pay whatever judgment may be rendered against him by said court upon trial of said appeal, or by consent, or, in case the appeal is dismissed, will pay the judgment rendered against him .by said county court, and all costs occasioned by said appeal, then tlie above obligation to be void, otherwise to remain in full force and effect. E F, [l. s.] G H, [l. s.] I J, [L. s.] Taken and approved by me in open court, this. ..day of. , A. D. i8... , Judge of the County Court. 14. Judgment — indemnity. — The judgment in such cases shall be a complete indemnity to the sheriff or coroner in selling or restoring any such property, as the case may be.(^) 15. Apportionment of costs — fees. — If the judgment shall be for the claimant as to part of the property, and for the i)laintifl in execution or attachment as to part, then the court shall apportion the costs in his discretion ; and the sheriff, coroner and county clerk shall have the same fees as are allowed by law for simihir services. (*) The final order or clerk's entry, in trials of the right of prop- erty, may be in form as follows : AD] vs. [ Trial of the Right of Property. E F.J And now on this. ..day of. , A. D. i8..., the day set for the hearing ol this cause, comes the said plaintiff, A D, by , her attorney, comes also, the said E F, by , his attorney, and this cause coming on now to be heard, the said defendant demands that the same be tried by a jury — ordered : That a venire be issued to the sheriff of this county for a jury of twelve men, returnable at. .. o'clock. ..m., of this day: Comes now the said sheriff, with an indorsement on said venire, and returned the same into open court, that he had executed said writ, by sum- moning from the body of the county, [naifies of the JHrors'\ twelve good and lawful men as jurors. Said jury were thereupon called, empanneled, tried and sworn to try the cause, and after hearing the evidence both for the plaintiff and the defendant, the arguments of the counsel, and having received the instructions of the court, retired in charge of an officer to consider of their verdict, and after due consideration thereof, returned into open court their verdict, in words and figures as follows, to-wit: \_Copy the verdict in full.'] Which said verdict is ordered to be recorded, and the jury discharged (i) Hurd's R. S., Chap. 140^7, I 12. (2) Kurd's R. S., Chap. 1400;,^ 13. 33 526 TRIAL OF THE RIGHT OF PROPERTY. [CH. XXI. from any further consideration of this cause. It is therefore, ordered and adjudged, that the said plaintiff, A D, have judgment against the said defendant, E F, for the costs of this suit, and that execution may issue therefor. It is further ordered, that the property in controversy in this suit be released by the officer having the same in charge and restored to the pos- session of said A D.the plaintiff in this suit: From which said judgment the defendant prays an appeal to the circuit court, which is granted upon con- dition that said defendant file his bond in the sum of.. -dollars, with good and sufficient security to be approved by the judge of this court, within five days from the time of the entry of the judgment in this cause. 16. Rules governing trial. — The object of a trial of the right of property, under the statute, is merely to furnish an imdera- nity to the officer in case he disposes of the property in conformity with the verdict, but the officer may, notwithstanding the verdict be for the claimant, retain and sell the property at his peril, if he choose to do so. The only safe course, however, is for the officer to surrender it.Q The only question for trial, is, whether the prop- erty levied on belongs to the claimant; for, unless he shows affirma- tively that it belongs to him, and is not sul)ject to sale on execution, the verdict must be against him,(^) and title acquired subsequently to the commencement of the proceedings can not be shown. (^) a. It is exclusively the duty of officer to give the notice for the trial, and for any neglect in case damage ensue, he will be held responsible.C*) The court acts upon his return, and it matters not whether it be true or false.(^) Claiming the property which has been levied upon is merely an act in jxds, and may be performed by an ordinary agent.(^) The statute does not require the claimant of property taken on execution, to state on whose execution the levy has been made, in the notice he serves upon the officer. Notice that he claims the goods levied uj)on, intends to prosecute his claim, and forbids the sale, is sufficient.^"^) 6. To authorize the inquiry, it is necessary there should be a taking of personal property, by a writ of execution regularly issued (i) Foltz vs. Stevens, 54 111., 180. (2) Marshall vs. Cunningham, 13 111., 20. (3) Graff vs. Fitch, 58 111., 373- (4) Ice vs. McLain, 14 111., 62. (5) Id. (6) Webber vs. Brown, 38 111., 87. (7) Pearce vs. Swan, i Scam., 266. CH. XXI.] TRIAL OF THE RIGHT OF PROPERTY. 527 at the suit of a plaintiff, against a defendant, and a claim interposed by a third person. (^) The claimant can not object to the execution. By giving notice of the trial of the right of property, he admits the validity of the execution. For, the remedy would be, were the execution a nullity, by an action of trespass, replevin, or trover against the officer.(^) c. The statutory provision requiring a jury, is not to be con- strued as prohibiting the parties fi'om agreeing upon a less number than six, nor to prevent their excusing a juror by consent after the trial had commenced, or waiving a jury altogether.(^^) d. On the trial of the right of property levied upon by attach- ment, the writ of attachment and return thereon, are admissible iai evidence. (^) A recital in the execution of the rendition of the judgment, is sufficient proof of the judgment, as the claimant by giving notice, admits the regularity and existence of the proceed- ings against the defendant.(^) Where a plaintiff has evidence tending to make out his case, it is error for the court to exclude it all on motion of the other party.(^) And if there be evidence tend- ing to show property in the claimant, it is erroneous to instruct the jury that he fails to show any right, and they must find against hi m.C^) e. A landlord who has distrained upon the goods of his tenant, luis a sufficient interest in them to enable him to be the claimant of the same, if they are subsequently taken in execution. (^) In an action of trespass de bonis asportatis, against others than the officer who made the levy and sale, the plaintiff should show title to the property sold. It is not a legal presumption, because the property was seized and sold under an execution against him, that it was his property.(^) Where the owner of an elevator had money advanced to him by a third party, with which to buy and hold for such party a lot of corn, the fact that such agent received corn in payment of debts (i) Mason vs. The State Bank, Breese, 141. (2) Harrison vs. Singleton, 2 Scam., 21 ; Merricks vs. Davis, 65 111., 319; Thompson vs. Wiihite, 81 111., 356. (31 Kreuciii vs. Dehler, 50 HI., 176. (4) Sheldon vs. Reihle, i Scam., 519 (5) De.xter vs. Parkins, 22 111., 144 (6) Merricks vs. Davis, supra. (7) Craig vs. Peake, 22 111., 185. (8) Grimsley vs. Klein, i Scam., 343 ^ (9) Ice vs. McLain, 14 111., 62. 528 TRIAT. OF THE RIGHT OF PROPERTY [CH. XXI, due him, as a means of collecting the same, and for that purpose paid more than the market value, but only charged his principal with the market value, will not necessarily render the transaction fraudulent as to creditors, and subject such corn to execution subse- quently issued against the agent. (^) And where ground is leased for a share of the crops raised, to be divided after the same is gathered, the title to the whole of the crops raised, will be that of the tenant until divided and possession given, and after the levy of an execution against the tenant, an agreement between him and the landlord, that the latter shall receive his share in the field, will not be allowed to defeat the levy.(^) But where growing wheat and corn are sold in good faith, and the purchaser takes all the posses- sion that is practicable before harvesting, and after it is cut down, and before a sufficient time elapsed for him to remove it, it is seized on execution against the seller, the purchaser will be entitled to hold it.0 /. The judgment is conclusive only between parties and privies.(*) And a trial which results in a judgment against the claimant, does not establish or confirm a right to the proi)erty in the defendant in execution. (^) But such a trial and judgment would be a bar to an action of trover subsequently brought by the claimant against the officers for the same property.(^) Where a levy has been made uj:)on property to which the debtor has no title, sold at public sale to the plaintiif in execution, from whom it is subsequently taken by the rightful owner, the court may, on motion, vacate the levy and satisfaction as shown by the return of the sheriff, under its power to correct its own records. In the same proceeding a new execution may be awarded. C^) g. Where an officer has levied an execution upon personal prop- ertv, and placed the same in the hands of a third person merely as bailee, the fact that a person other than the defendant in execution procures a trial to be had, under the statute, which results in favor of the claimant, will not justify such bailee in refusing to deliver (i) Cool vs. Phillips, 66 111., 216. (2) Sargent vs. Courrier, 66 111., 245. (3) Thompson vs. Wilhite, 81 111., 356. (4) Arenz vs. Reihle, i Scam., 340. (5) Cassell vs. Williams, 12 111., 387. (6) Kreuchi vs. Dehler, 50 111., 176. (7) Zeigler vs. McCormick, Sup. Ct. Nebraska, 14 Legal News, 375. CH. XXr ] TRIAL OP THE RIGHT OF PROPERTY. 529 the property to the officer who placed it in his custody, according to tiie terms of the baihnent. In such ciuse, the finding on the trial would not authorize the bailee to surrender the property to the claimant, but he should, notwithstanding such finding, return the property to the officer.(^) h. It was formerly held, that the wife of a defendant in execu- tion on a trial of the right of property, was not a competent witness to testify ;(^) but the rule is now changed, and in an action of assumpsit, brought by the husband to recover the value of certain articles, belonging to the wife which were lost in transportation, the wife was held to be a competent witness to testify,(^) So, where a defendant in replevin, pleaded that the property replevied from him was the separate property of his wife, it was held, that the wife, under the act of 1867, was a competent witness to prove execution of a bill of sale of the property by the plaintiff to her, and to the fact and manner of payment by her, as the fifth section of February 19th, 1867, relating to witnesses, making the husband and wife competent witnesses for and against each other in litiga- tion concerning the wife's separate property, is not restricted to cases where she is plaintiff or defendant, and where her title is ad- mitted, but is general — extending to all cases where the litigation shall concern her separate property, whether her title is admitted or contro verted. (^) i. A verdict against the claimant, is a complete indemnity to the sheriff, but does not conclude the contasting parties, nor does it [)rotect any person who intermeddles with the property. (^) And a verdict of a jury which found the title in the defendant in the attachment, is sufficiently formal and explicit, as it negatived the title set up by the claimant. (^) But a verdict for the claimant would not authorize a bailee to surrender the property to the claimant. He should, notwithstand- ing such finding, return the property to the officer.C') fi) Foltz vs. Stevens, 54 111., 180. (2) De-xter vs. Parkins, 22 111., 143. (3) Northern Line Packet Co. vs. Shearer, 61 111., 263. (4) McNail vs. Ziegler, 68 111., 224. (5) Rovve vs. Bovven, 28 111., 117. (6) Sheldon vs. Reihle, i Scam., 519. (7) Foltz vs. Stevens, supra. 530 TRIAL OF THE RIGHT OF PROPERTY. [CH. XXI. j. Where an appeal is taken to the circuit court, all the pro- ceedings should be transmitted; if they are not, the circuit court cau not exercise jurisdiction. (^) An appeal may be properly dismissed, upon a motion founded on the affidavit of the sheriff, stating that the property in question had been sold with the assistance of the claimant, (who was the appellant,) and that the proceeds thereof remained in his hands, subject to the order of such claimant.(^) fi) Sheldon vs. Reihle, i Scam., 519. (2) Morgan vs. Griffin, i Gilm., 565. CH. XXI.] TRIAL OF THE RIGHT OF PROPERTY. 531 ADDITIONAL NOTES. 1. Suit on official bond-Judgment — Costs. 2. Measure of damages. 1. Sui r OX OFFICIAL BOND — JUDGMENT — COST'S. — The levy by a sheriff upon the property of A., by virtue of a writ against B., is a breach of the slierifF's bond. Judgment in favor of intervening claimant on trial of the right of property is not of itself conclusive that he has the right to recover in action against the sheriff on his bond.(i) 2. Measuke of damages. — As a general rule, the true measure of damages will be the value of the property and interest.(^) The plaintiff and defendant, in an execution issued, pending a trial of the right of property between the latter as claimant and the judg ment creditors of a third person, in goods levied upon as the property of such third person, are in such privity of relation that both will be alike bound by a judgment finding the right of property against the claimant. (') (i) Jones vs. People, 19 III. Ap., 300. (2) lb. (3) Hill vs. Reitz, 24 111. Ap., 391. 532 CONTESTED ELECTIONS. [CH XXII. CHAPTER XXII. CONTESTED ELECTIONS. 1. Jurisdiction of County Courts. a. Exceptional cases in the circuit court. b. Other officers to contest in county court. c. To include officers of certain cities and villages. d. Does not include alderman of any city. e. Jurisdiction and practice statutory. f. May try at any term of the court. 2. Powers of chancery courts to inquire into elections. a. Statute does not prohibit the use of the common law writs o{ mandamus and quo warranto. b. Cases in which courts of chancery may inquire. 3. Who may contest elections in the county court. 4. Manner of proceeding — pleading. a. Summons. b. Taking of evidence. c. Proceeding like a suit in chancery — amendments. 5. Matters to be considered on trial. a. Adjournment does not vitiate election. b. Holding open after legal hour for closing. c. Closing the polls before the legal hour. d. Election held by unauthorized officers. e. Rules designed to effect a free and fair election. f. Who may vote. g. Presumptions of law as to those voting. h. Permanent abode, i. Declarations of a voter as affecting his right to vote. j. Paupers and persons of unsound mind. k. Registration of voters constitutional. /. Right of such to vote. rn. Receiving ballots. 6. Custody of ballots — examination. a. Rejection of ballots. b. Ballots as evidence. 7. Intention of voter to govern. 8. Bribery by candidates. 9. In case of a tie vote. 10. Void election. 11. Judgment of the court. a. Form of decree. 12. Certified copy of judgment. 13. Appeal. a. Lies only to supreme court. CH. XXir.] CONTESTED ELECTIONS. 633 1. Jurisdiction. — The statute of 1872 confers upon the county court exclusive jurisdiction in cases of the contest of the election of all county officers, except that of the judge of that court, of all township, precinct and city officers, in cities organized under the general law. a. The circuit courts of the respective counties shall hear and determine contests of the election of the judges of the county court of their counties, and in regard to the removal of county seats, and in regard to any other subject which may by law be submitted to the vote of the people of the county. (') 6. The county court shall hear and determine contests of elec- tion of all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made.(^) c. The manner of conducting and voting at elections to be held under this act, [act to provide for the incorporation of cities and villages^ and contesting the same, the keeping of poll lists and canvassing the votes, shall be the same, as nearly as may be, as in the case of the election of county officers, under the general laws of this state. (^) The section last quoted, confers jurisdiction to contest the elec- tions of city and village officers of only those cities and villages which are organized under the general law providing for their incorporation. (^) This also includes school officers.(^) d. Notwithstanding this sweeping language, it has been held, that this court has no authority to consider a contest involving the election of an alderman of a city, even though organized under the general law — that power being alone in the city council, under the statute which makes it the "judge of the election and qualification of its own members."(^) Such council has, however, no power to pass upon the election of the mayor.(') e. The jurisdiction of the court, the mode of trial, and the (i) Kurd's R. S., Chap. 46, § 97. (2) Kurd's R. S., Chap. 46, ? 98. (3) Kurd's R. S., Chap. 24, 1 57. (4) Brush vs. Lemma, 77 111., 496; Young vs. Adam, 74 Til., 480; Winte* vs. Thistlewood, loi 111., 450; Talkington vs. Turner, 71 111., 234. (5) Misch vs. Russell, 136 111., 22. (6) Kurd's R. S , Chap. 24, ? 34; Linegar vs. Rittenhouse, 94 III., 208; Cooley's Constitutional Limitations, 624. (7) Winter vs. Thistlewood, supra. 534 CONTESTED ELECTIONS. [CH XXII. whole contest, is purely statutory, and is not regulated or governed by the common ]aw.(') Elections belong to the political branch of the government, and are beyond the control of the judicial power. It was not designed, when the fundamental law of the state was framed, that either department of the government should interfere with, or control the other, and it is for the political power of the state, within the limits of the coni^titution, to provide the manner in which elections shall be held, and the manner in which officers thus elected, shall be qualified, and their elections contested. Until the courts are empowered to act, by the constitution or legislative enactment, they must refrain from interference.(*) /. The jurisdiction of the court to hear and determine contested election cases, being restricted by the statute to no particular term of the court, it may hear such cases at any term in the year, whether the term is held for probate business alone, or for both probate and common law business. 2. Powers of a court of chancery in such cases. — Courts of chancery, both in this country and in England, have never claimed nor exercised the right of trying a contested election case, unless in cases where the power has been given by statute.(^j Nor can a court of equity interfere by injunction to restrain the holding of an election provided for by statute.(*) Should such an injunction be allowed, it is the plain duty of the officer enjoined, to disobey the writ, and perform the legal duty imposed by the statute; and such disregard of the writ of injunction, will be no contempt of the court ordering it.(^) The fact that the law has prescribed no manner of contesting an election, will not confer jurisdiction upon a court of equity to interfere.(^) Where the law provides a mode for contesting elections, as in this chapter of the statute, it must be followed, and courts of equity have no power to interfere — the remedy at law being complete.(') (i) Lineger vs. Rittenhouse, 94 III., 208. (2) Dickey et al. vs. Reed, 78 111., 261. (3) lb ; Moore vs. Hoisington, 31 111., 243. (4) Darst vs. People, 62 111., 306 ; Walton et al. vs. Beveling et al., 61 III., 201 ; People vs. City of Galesburg, 48 111., 485 ; Harris et al. vs. Schryrock et al, 82 111., 119. (5) Walton et al. vs. Beveling, .y/z/ra ; Barst et al. vs. People, ^/(/f'ra/ Dickey vs. Reed, supra. (6) Moore vs. Hoisington et al., sitpra. (7) People vs. City of Galesburg, supra. CH. XXII.] CONTESTED ELECTIONS. 535 a. The existence of such a statute, does not in any manner interfere with the right to proceed by quo warranto against one claiming to exercise an office, for the purpose of inquiring into the legality of his election. (') Nor does the fact, that a branch of the general assembly is, by a provision of the constitution, made the judge of the election and qualification of its members, debar the courts of their jurisdiction to compel, by mandamus, a board of canvassers to issue to a successful candidate his certificate of election .(^) 6. It is true, courts of equity in Illinois, have entertained juris- diction of proceedings prosecuted to inquire into elections held for the purpose of voting upon the removal of county seats, and have ascertained and declared the results of such elections ; but this interference is placed expressly upon the ground that the constitu- tion provides that county seats should not be removed, except on a •vote resulting in a majority for removal ; and that the statute was silent upon the subject of contesting such elections. To prevent the obstruction and a defeat of the rights of the majority, conferred and intended to be secured to them, it was held, that the funda- mental law by implication conferred the power to interfere on courts of chancery. Such cases have been tolerated upon the express ground, that they were exceptions to all other cases.(') 3. Who may contest election. — The election of any person declared elected to any office other than governor, lieutenant gov- ernor, secretary of state, auditor of public accounts, treasurer, superintendent of public instruction, attorney-general, senator or representative, may be contested by any elector of the state, judicial division, district, county, town or precinct in and for which the person is declared elected.(*) 4. Manner of proceeding — pleading. — The person desir- ing to contest such election, shall, within thirty days after the person whose election is contested is declared elected, file with the clerk of the proper court, a statement, in writing, setting forth the points on which he will contest the election, which statement shall (i) Stephens vs. People, 89 111., 338; RaflFerty vs. McGowan, 136 111., 621. (2) Fuller vs. Hilliard, 29 111., 413. (3) Turley vs. Logan Co., 17 111., 151 ; Board of Supervisors vs. Keady, 34 111., 293; Boren vs. Smith, 47 111., 48 2 ; Kno.x Co. vs. Davis, 63 111., 405; Dickey et al. vs. Reed et al., 78 111., 261 ; People vs. Smith, 51 111., 177. (4) Kurd's R. S., Chap. 46, I 112 ; Talkington vs. Turner, 71 111., 234. 536 CONTESTED ELflCTIONS. [CH. XXlI. be verified by affidavit in the same manner as bills in chancery may be verified.(*) a. Upon the filing of such statement, summons shall issue against the person whose office is contested, and he may be served with process, or notified to appear, in the same manner as is pro- vided in cases in chancery,(^) h. Evidence may be taken in the same manner and upon like notice as in eases in chancery.(^) c. The whole proceeding under this act, from its incipicncy, by filing a statement verified by affidavit, followed by summonf against the defendant to appear and answer, to final judgment, iia.s all the incidents of a regular bill in chancery. Like a cluuicery proceeding, amendments may be allowed to the petition, ami the contestant may, in such amendments, assign any new points neces- sary to bring before the court, the real points in the case, and meet the tactics of his opponent.(*) The contestant may, clearly, jtlace his contest on any ground he chooses, and the opposite party may interpose, by answer, any matters which show that the contestant is not entitled to the relief he seeks.(^) The petition, like a bill in chancery, should charge facts sufficient to bring the case within the statutory jurisdiction of the court, and show the contestant, if the matters charged are true, entitled to prevail.* So, in a contest fur the office of mayor of a city, the petition filed in the county court should show, by apt averment, that such city was duly organized under the general incorporation act, or had legally adopted it, and and this, too, notwithstanding the act provides that " all courts in this state, shall take judicial notice of the existence of all villages and cities organized under this act, and of the change of the organ- ization of any town or city from its original organization to tXr organization under this act."(^) As special replications are now out of use in chancery practice, (i) Kurd's R. S., Chap. 46, J 113. (2) Kurd's R. S., Chap. 46, | 114. (3) Kurd's R. S., Chap. 46, I 115. (4) Dale vs. Irwin, 78 111., 171 ; Kingery vs. Berry, 94 111., 515. (5) Talkington vs. Turner, 71 111., 234. (6) Brush vs. Lemma, 77 111., 496; RafTerty vs. McGowan, 136 III., 621. •Note. — Without giving forma for the guide oJ' the practitiooer, it will be safflcient to ai^, that the forms in common use in chancery suits will be found adapted to thte praotiee. CH. XXri.] CONTESTED ELECTIONS. 537 the same object may be met in this proceeding, by an amendment to the petition. (^) 5. Matters to be considered on trial — time and place OF holding election. — The case shall be tried in like manner as cases in chancery.(^) Where the bill and answer make an issue as to which side had the majority of votes, evidence is admissible to show that a voter whose ballot was rejected by the board of canvassers, for tlie reason that a ballot was found folded within the ballot cast, cast such double ballot by mistake. And where the evidence shows such double voting to have been done by mistake, the vote should be counted, as intended.(^) When the time and place of an election are fixed by law, an omission to give the notice directed, of the election, will not vitiate an election held on the day and at the place appointed by law ; but Avhere the time and place are not fixed by law, but the election is only to be called, and the time and place fixed by some authority named in the statute, after the happening of some condition precedent, it is essential to the validity of such an elec- tion, that it be called, and the time and jilace thereof fixed, by the very agency designated by law, and none other.(*) If an elec- tion is held without warrant of law, or if ordered by a person or tribunal having no authority, there could be no doubt that the whole proceeding would be absolutely void and incaj)able of ratifi- cation ;(^) but one who has participated in the election as a candi- date or a voter, will not be ])ermitted to disturb the public welfare by having such an election declared void.^*^) Where an election was called at the store of an individual, and upon the ai)pearance of voters, permission to hold the election at the place designated M-as refused, and an adjournment had to a place near by where the election was held, it was held to be legal, no fraud appearing, and it not ajijiearing that any voter had been thereby prevented from casting his ballot.('') (i) Dale vs. Irwin, 78 111., 171. (2) Kurd's R. S., Chap. 46, \ 116. (3) City of Beardstown vs. City of Virginia, 81 111., 541. {4) Stephens vs. People, 89 111., 337. (5) Clark vs. Board of Supervisors, 27 111., 305; Marshall Co. vs. Cook, 38 111., 44; Force vs. Town of Batavia, 61 111., 99; Marshall vs. Silliman, 61 111., 218; Lippincott vs. Town of Pana, 92 111., 24. (6) People vs. Waite, 70 III, 26. (7) Dale vs. Irwin supra. 538 CONTESTED ELECTIONS. [CH. XXII. a. An adjournment of the election an hour for dinner, it not appearing that tliereby any voter was prevented from voting, and no fraud a])[)eariiig in tiie proceeding, was hehl not to vitiate an election, although the statute forbids any adjournment. The voters who have voted in good faith, are not to be disfranchised by such a mistake of the judges of election. (^) h. So, also, where votes were received after five o'clock, that being the hour at which the law required the polls to be clo.ed.such fact will not vitiate the election, although, upon a contest of the election, the ballots received after the legal hour for closing the polls, might be excluded. (^) c. And Avliere the evidence showed the closing of the polls an hour earlier than the hour fixed by statute, but no legal voter being thereby deprived of his right to vote, it was held not to afPect the result of the electiou.(^) d. An election is not void where it is held by persons who are not officers dejure, but are officers de facto, and act in good faith, under colorable authority. (^) e. As applicable to all elections, it may be said, that the rules prescribed, by law for conducting an election, are designed chiefly to afford an o])portunity for the free and fair exercise of the elective franchise, to prevent illegal voting, and to ascertain, with certainty, the result. Such rules are directory merely — not jurisdictional or imperative. If an irregularity, of which complaint is made, is shown neither to have deprived a legal voter of his right, nor to have admitted a disqualified person to vote — if it casts no uncer- tainty on the result, and has not been occasioned by the agency of the party seeking to derive a benefit from it — it may well be over- looked, in a contest where the only question is, which vote was the greatest. (^) /. The right of voting at an election in Illinois, is confined to those included within this statutory provision : Every person having resided in this state one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this state on the first day of April, (i) Du Page Co. vs. People, 65 111., 360. (2) Piatt vs. People, 29 111., 54; Kno.\ Co. vs. Davis, 63 111., 405. (3) Cleland vs. Porter, 74 111., 76; Cooley's Const. Lim., 617. (4) Lippincott vs. Town of Pana, 92 111., 24. (5) Piatt vs. People, supra; Du Page Co. vs. People, supra. CH. XXII.] CONTESTED PXECTIONS. 539 in the year of our Lord, 1848, or obtained a certificate of natural- ization before any court of record in tliis state prior to the first day of January, in the year of our Lord, 1870, or who shall be a male citizen of the United States, above the age of twenty-one years, shall be entitled to vote at such election. (^) A permanent abode is necessary to constitute a residence within the meaning of the preceding section. (*) g. The presumption of law is, that each voter voting at an elec- tion is a legal voter in the township or precinct wliere the election is held, which presumption continues until the contrary is proven.(^) So, the presumption is, that the vote cast at an election held according to law, is the vote of the whole number of legal voters.(*j Where a person who has voted at an election, testifies that he is of foreign birth, and that neither he nor his fatlier, so far as he knows, has ever been naturalized, this will be sufficient to rebut the presumption of the legality of the vote.(^) In an election, where those not voting at all, are counted in the negative, no presumption is indulged as to the fact of such persons being voters or not ; but in order to have such persons counted in the negative, in a contest of the election, the proof must show them not to be voters.(^) h. A " permanent abode," in the sense of the statute, means nothing more than a domicile, a home, which the party is at liberty to have, as interest or whim may dictate, but without any present intention to change it.(') Under-graduates of a college, having homes elsewhere to which they expect to return, w^hen the purposes which brought them to the seat of the college have been met, and no interests to attach them to the town in which the college is situ- ated, are not entitled to vote at its elections, although they may have paid a poll tax in labor The payment of such a tax does not necessarily determine the right to \ote — as residence in a given township, is not a test of such liability, but simply inhabitancy. Yet such persons w^ho are entirely free from parental control, and (i) Art. 7, ? I, Constitution of Illinois; Hurd's R. S., Chap. 46, | 65 ; (2) Hurd's R. S., Chap. 46, ^i 66. (3) Webster vs. Gilmore, 91 111. 324; Clark vs. Robinson, 88 111., 498. (4) Melvin et al. vs. Lisenby et al., 72 111., 63. (5) City of Beardstown vs. City of Virginia, 81 111., 541. (6) lb. (7) Dale vs. Irwin, 78 111., 171. 5^0 CONTESTED ELECTIONS. [CH. XXII. regard tlie seat of the college as their home, and have no other to which they expect to return in case of sickness or domestic afiliction, are unquestionably as much entitled to vote as any other resident of the town, ])ursuing his usual avocation. It is the home of such students — their permanent abode, in the sense of the statute, as clearly so, as that of any other resident. As a general fact, how- ever, the under-graduates of a college, are no more identified with the residents of the town in which they are pursuing their studies, than the merest strangers.(') The fact of residence in a given place, depends largely upon the intention of the individual in coming to or remaining in such place, and not upon the length of time occupied in such residence. Where one Avent from Illinois to Tennessee, removing his family thereto, with an intention to remain if found to be jn'ofitable, but after a residence in the latter state of seven months, finding the experiment not to his taste, returned to Illinois, it was held that he did not there- by change his residence, l)ut remained all the time a citizen of Illi- nois. (^) So, where one sold his property and went to Texas, with the intention of locating there if he found a place to suit him, but upon arriving there, without unloading his goods, returned to his former home in Illinois, after an absence of twenty-eight days, it was held that he did not thereby lose his residence in the latter state.(^) i. The declarations of a person, made some time after having voted at an election, admitting or stating facts, showing that he was not a legal voter, are inadmissible as evidence to show his disqualification to vote. But where the person, when sought after to vote, stated that he was an alien born, and had no right to vote, such declarations, made immediately before or shortly after the act of voting, may be shown in evidence as a part of the res gestce.{'^) j. Paupers, who are inmates of any county poor house, insane asylum or hospital in Illinois, are not, by virtue of such residence, deemed residents or legal voters in the town, city, village or election district or precinct in which such institution may be situated, but such persons are considered residents of the towns frc^m which they (i) Dale vs. Irwin, 78 111., 172; Fry's Election Case, 71 Penn. St., 302. As to what constitutes domicile, see aufe page 238. (2) Smith vs. People, 44 111., 16. (3) City of Beardstown vs. City of Virginia, 81 111., 541. (4) /^. CH. XXII.] CONTESTED KT,F.rTrr>NS 541 were removed. (^) When such persons become a public charge, and while tliey remain so, they cease to be free agents, but in the hands and under the control of the public authorities, are removed to the county poor house. As there must be an act of volition to accom- plish a change of domicile or residence, such persons do not lose their residence.(^) A person who is of weak mind, but capable of managing his business, and not laboring under any hallucination in political mat- ters, is entitled to vote at an election. (^) h. Laws providing for the registration of voters, if they do not amount to a denial or invasion of the constitutional right of voting, are valid.("') In all cases, where the constitution has conferred a political right or privilege, as the right to vote at elections held under it, and where the constitution has not particularly designated the man- ner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations in regard to the time and mode of exercising that right, which are designed to facilitate the exercise of such right, in a prompt, orderly and convenient manncr.(^)* I. On the contest of an election, it is error to reject the vote of an unregistered person, whose vote was received without challenge or objection, without proof showing that he was not entitled to vote, the presumption being, that he was a legal voter, and entitled to (i) Hurd's R. S., Chap. 46, ? 65^2:; Freeport vs. Board of Supervisors, 41 111., 495; Clark vs. Robinson, 88 111., 498. (2) Clark vs. Robinson, supra. (3) Jb. (4) Edmonds vs. Baubnry, 28 Iowa, 267; State vs. Lean, 9 Wis., 279. (5) Capen vs. Foster, 12 Pick., (Mass.) 485 ; See, also, note to same case, 23 American Decisions, 642. Per contra, see Dells vs. Kenedy, Sup. Ct. of Wisconsin, 12 Legal News, 363. *NoTK. — Sectiou 55, of the Chapter of the IlUnois Statute on Elections, requires the judges of election to place upoa the ballot of each voter a number corresponding to tue number of the voter on the poll list. A similar law exirits in the State of Iiicliaaa; but the supreme court of that state, in the case of Williams \». Stein, 3S Ind., 89, declared the requirement in violation of a provision of the conatliutiou, which declares, that " all elections by the people shall be by ballot." See, also, Brisbin vs. Cleary, by supreme court of Minnesota, 11 Legal News, 365, to the same effect. No case involving this question, has yet come before the supreme court of Illinois, where all elections are required by the constitution to be by ballot. It is doubtful if that court would Bay, should tlie question come before them, that the ticket deposited by an elector is no ballot, for the reason that the judges, alter it passes from the hand of the elector, place upon it a mark by which it may be identified, and the elector protected from the frauds of others in his right to vote and to an honest and a fair count. The circuit court of Cook county, in the case of Hammer vs. Swift et at., 7 Legal News, 167, following the case of Williams vs. Stein, supra, held the statute uucouatitutioual. See, also, opinion by Judge Jameson, 8 Legal News, 60, to the same impo' j. 34 542 CONTESTED ELECTIONS. [CH. XXII. vote at that election. (^) So, also, in the case of an unregistered voter, whose vote was received by the election l)oard upon his afifi- davit, supported by the affidavit of one who was not a householder and a registered voter, as the statute requires. The statute, in this respect, is directory. (^) The officers, whose duty it is, as a canvassing board, to canvass the returns of an election and certify the result, have no power to pass upon the qualifications of voters, nor decide as to what ballots shall be counted. (^) m. Where a sick person is brought in a carriage to the polls, reaches out his ballot to one of the judges, who, not being able to receive it from his place, a person standing by, hands it to the judge, in whose sight it is, until received by him, such person's vote can not be rejected on the ground of not having been personally given.(*) Where the evidence showed beyond all controversy, that stu- pendous frauds were committed at the election, by allowing persons to vote more than once ; by adding names to the registry as appli- cation was made on the day of election, without inquiry as to the qualifications of the voter, and it appeared that the vote was double that ever was before ; that the judges and clerks of the election, knowingly participated in such frauds, instead of using all reasonable and proper means to keep the ballot box pure and uncorrupted, it was held, that the court upon trial of a contest of such an election, properly rejected the poll lists and returns as impeached and so tainted with fraud, as to be unworthy of credit,(*) 6. Examination of ballots. — In all cases of contested elec- tion, the parties contesting the same shall have the right to have the said package of ballots opened, and said ballots referred to by witnesses for the purpose of such contest. But said ballots shall only be so examined and referred to in the presence of the officer having the custody thereof.(^^) (i) Kuykendall vs. Harker, 89 III., 126; Dale vs. Irwin, 78 111., 171 ; Du- Page Co. vs. People, 65 111., 361. (2) Clark vs. Robinson, 88 111., 498. (3) Brewster vs. Kilduff, 15 111., 492. (4) Clark vs. Robinson, supra. (5) Knox Co. vs. Davis, 63 111., 405. (6) Hurd's R. S-., Chap. 46, I 60. CH. XXII.] CONTESTED ELECTIONS. 543 a. It is illegal for a board of canvassers to reject a numbered ballot found in the box, because an unnumbered ballot is found folded with it, and in a contest of such an election, the ballot so rejected, will be counted according to the intention of the voter ;(^) but a vote for a candidate on a separate slip of paper, folded within a numbered ballot deposited, not attached to it in any way, is prop- erly rejected, the statute requiring the names of all the candidates voted for, to be upon the same ballot.^*) The fact of the loss of the ballots and affidavits made at an election in a particular precinct, where such loss is accidental, aifords no ground for rejecting the entire return from such precinct.(^/ b. Where ballots were illegally opened by the custodian and handled by a contestant and his friends, out of the presence of the other contestant, it was held, that the ballots thereby lost their value as evidence upon the trial, notwithstanding the testimony of those participating in the unlawful count, was offered to the effect that no changes were made in the ballots.('') It was held to be manifest error for the county court, when trying a contested election case, to allow one of the contestant's votes not in fact received, although offered to and rejected by the election board ; and this, whether the proffered votes ^vere properly or improperly rejected. (^) So, where an ineligible candidate for a public office receives a plurality of the votes cast at the election, the next highest candidate is not entitled to the office if the ineligibility does not appear upon the ballots, and his lack of legal qualifications for the office is thus brought home to the knowledge of the voters.(^) 7. Intention of voter to govern. — In determining contested election cases, after having ascertained who of the voters were legal electors, it becomes a matter of first importance to determine what was the intention of such voters in casting their ballots; for that intention, if ascertained, must control the court in its decision of the case. No informality in designating the office, as designating (i) Clark vs. Robinson, 88 111., 48S ; Dale vs. Irwin, 78 111., 171. (2) Webster vs. Gilmore, 91 111., 324. (3) Beardstown vs. Virginia, 76 111., 34. (4) Kingery vs. Berry, 94 111., 515. (5) Webster vs. Byrnes, 34 Cal., 273. (6) Barnum vs. Gilpin, 27 Minn., 426; People vs. Clute, 50 N. Y., 451. 544 CONTESTED ELECTIONS. [CH. XXI f. the office as " magistrate," when the officer to be elected was that of police magistrate, can be allowed to defeat the intention of the voter, when it is apparent what office he intended to vote for.(^) Where ballots omit a part of a candidate's name, or contain bnt one initial, or misspc^U the name, or omit the initials altogether; where the intention of the voter to vote for one of the contesting candi- dates is apparent, the ballot will be counted according to the intent of the voter.(^) 8. Bribery by candidates. — It has been held, that where candidates for office, prior to the day of election, as an inducement for electors to vote for them, by printed circulars or in speeches from the stump, offer to accept election to office and perform the duties thereof for a sum less than the legal salary, leaving the balance in the treasury to the credit of the general public, in the absence of any statute declaring ineligibility to office a consequence of bribery at the election, will, when proven in a contested election case or in a quo warranto, justify a judgment against a candidate securing his election by such means.(^) 9. Tie. — If it appears that two or more persons have, or would have had, if the legal ballots cast or intended to be cast for them had been counted, the highest and an equal number of votes for the same office, the persons receiving such votes shall decide by lot, in such manner as the court shall direct, which of them shall be declared duly elected ; and the judgment shall be entered accord- ingly.O 10. When election adjudged void. — When the person whose election is contested is found to have received the highest number of legal votes, but the election is declared null by reason of legal disqualification on his part, or for other causes, the person receiving the next highest number of votes, shall not be declared elected, but the election shall be declared void.(^) 11. Judgment. — The judgment of the court, in cases of con- tested election, shall confirm or annul the election according to the (i) People vs. Matteson et al., 17 111., 167. (2) Talkington vs. Turner, 71 111., 234; Clark vs. Robinson, 88 111., 498. (3) State vs. Newell, 36 Wis., 213; State vs. Church, 5 Oregon, 375; State vs. Collier, 72 Mo.,, 13; See, also, note to last named case, 37 Ameri- can Rep., 422. (4) Hurd's R. S., Chap. 46, ? 120. (5) Hurd's R. S., Chap. 46, ^122. CH. XXII.] CONTESTED ELECTIONS. 545 right of the matter; or, in case the contest is in relation to the elec- tion of some person to an office, shall declare as elected the person who shall appear to be duly elected. (^) a. The form of the judgment of the court should follow the usual form of a decree in chancery, and should not only show juris- diction of the persons of the contestants, but the rule in chancery practice should be applied here, that to uphold the decree, it must appear from tlie record that the findings of the court are supported by the evideuce.(^) 12. Certified copy of judgment. — A certified copy of the judgment of the court shall have the same effect as to the result of the election, as if it had been so declared by the canvassers.(^) 13. Appeal. — In all cases of contested elections in the circuit courts or county courts, appeals may be taken to the supreme court in the same manner, and upon like conditions as is provided by law for taking appeals in cases in chancery from the circuit courts.(*) a. Appeals from the decrees of the county court in cases of contested elections, lie to the supreme court direct. Section 8 of the act creating appellate courts, and giving jurisdiction thereto must not be understood as repealing this section of the statute.(') (i) Kurd's R. S., Chap. 46, § 119. (2) Kingery vs. Berry, 94 III., 515. {3) Kurd's R. S., Chap. 46, ^ 121. (4) Kurd's R. S., Chap. 46, | 123. (5) Webster vs. Gilmore, 91 111., 324. 546 CONTESTED ELECTIONS. [CH. XXII. ADDITIONAL NOTES. 1. Time of filing the petition. 2. Time in which to issue summons. 3. What constitutes a day. 4. Office hours of clerks of courts. 5. Requisites of a petition, as to the qualifications of petitioner. 6. Citizenship defined — Whether it includes the right to vote. 7. Failure to take oath of office and give bond during a contest. 8. Proceeding not a suit at law. 9. Can be tried at a probate term. 10. County court has no jurisdiction to determine the qualifications of an incumbent. ir. Practice same as in chancery — Chancery court has no jurisdiction. 12. Petition and proceedings to ascertain true vote. 13. Contest of town officers. 14. What the petition should contain. 15. The answer. 16. Answer not conclusive on the court. 17. Of matters that may be shown on a recount, irregularities, etc. 18. Quo warranto proceedings used — When. 19. Decree may be set aside — Whgn. 20. Council to determine contest of members, under special charter. 21. Summons returnable — When. 22. Form of petition. 23. Form of answer. 24. Form of general replication. 1. Time of filing petition. — Under section 113 of chapter 46, R. S., 1874, entitled "Elections," providing that in the case of the proposed contesting of an election, the person desiring to con- test such election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk of the proper court a statement, in writing, of the grounds upon which he will contest the election, the contestant is not restricted, as to the time of the day in which he may file such statement, to the hours during which the clerk is required by statute to keep his office open — that is, from eight o'clock A. m. to six o'clock P. m. — but the "day" contemplated by the statute is an ordinary day of twenty-four hours, which does not expire until twelve o'clock, midnight. So, where it was pro])osed to contest the election of a person who had been declared elected to the office of county treasurer, and the statement CH. XXII.] CONTESTED ELECTIONS. 547 in writing of the grounds of contest was filed with the clerk of the proper court on the last day limited by the statute, but nof until after six o'clock P. m. of that day, it was held, the filing of state- ment was in apt time. 2. Time in which to issue summons. — In a procceling to contest such an ele 'tion, the filing with the clerk of the statement in writing, as required by the statute, is the commencement of the suit, so that it is not essential, in order to preserve the right of the contestant to proceed, that the summons shall be issued within the thirty days limited for the filing of the statement, but it rjay as well be issued after that time has expired. 3. What constitutes a day. — Where a person is required to take action within a given number of days in order to assert or secure a right, the "day" is to consist of twenty-four hours — that is the popular and the legal sense of the term — so that if the a^t be done on the last day limited, if it be done at any time before twelve o'clock at midnight, that will be sufficient. 4. Office hours of clerks of courts. — The sixth section of chapter 25, R. S., 1874, entitled "Clerks of Courts," i)rovides that the clerks of certain courts therein named shall keep their oflfices open, and attend to the duties thereof, from eight o'clock a. m. to six o'clock P. M. of each working day. This is to be miderstood as requiring such clerks to keep their offices open at least duri jg he hours thus designated, but not in any way aiFecting their rigu or powerto transact official business during any other hours in the ay.(^) 5. REQUir^iTES OF petition, as to qualifications of peti- tioner. — A petition for the contest of an election by one to the office of town clerk, or other town office, should aver that th- petitioner was an elector of the town, or it will be fatally defecl've on demurrer. An averment that the contestant was a citizen and resident of the town is not sufficient. 6. Citizenship defined. — A citizen, in the popular and appro- jriate sense of the term, is one who, by birth, naturalization or otherwise, is a member of an independent political society called a state, kingdom or empire, and who, as such, is subject to its laws and entitled to its protection in all his rights incident to that rela- (i) Zimmerman vs. Cowan, 107 111., 631. 548 CONTESTED ELECTIONS. [cH XXII. tion. T!ie term includes females and minors. The right of suffrage is not (oextensive with tlie right of citizenship. (') 7. 1 AI..URE TO TAKE OATH OF OFFICE ANB GIVE BOND — The statute requiring a town collector to take the oath of office and file his bond within the time prescriheil applies only to the person declared elected by the canvassing board, and to whom the certificate of election has been given. In case of the contest of the election, it will be sufficient if the contestanl qualifies within the same time after a judgment is rendered in Lis fa^or to entitle him to the fees and emoluments of the oF.lce which may have been received by his unsuccessful opponent. {^) 8. PnocEEiMNG NOT A SUIT AT LAW. — A proceeding to contest an election is not a suit at law.(^) 9. ISIay BE TRIED AT PROBATE TERM. — Such a proceeding may be tried at the probate terms of the court.(^) 10. County court has no jurisdiction. — The county court has no jurisdiction to hear and determine the qualifications of an incumbent. (^^; 11. Practice — chancery court has no jurisdiction. — The practice is the same as the practice in chancery courts, but courts of chancery have no jurisdiction to hear and determine contested elec- tion cases.(^^) 12. Petition and proceedings. — The petition and the pro- ceedings under it should be directed to the matter of ascertaining the true vote of the people, and not to a mere amendment of the canvass. ('^) 13. Contest of town officers. — The right to contest as to town officers is confined to electors of the town.(^) 14. What the petition should contain. — The petition should show the names of the persons wdiose ballots have been improperly counted, if known ; but this is not indispensable.(^) (i) Blanck vs. Pausch, 113 111., 60. I2) Farwell vs. Adams, 112 111., 57. (3) Kreitz vs. Behrensmeyer, 125 111., 141. (4) /<^. (5) Greenwood vs. Murphy, 131 111., 604. (6) Jennings vs. Joyce, 116 111., 179; Kreitz vs. Behrensmeyer, supra. (7) County of Lawrence vs. Schmaulhausen, 123 111., 321. (8) Blanck vs. Pausch, supra. (9) Kreitz vs. Behrensmeyer, supra. CH. XXir.] CONTESTED ELECTIONS. 549 15. The answer. — Less particularity is required in the answer of the defendant than in the {)etition. Where contestant alleges he was elected, and this is denied by the answer, it is competent for the defendant to show that persons voted for the contestant who were not legal voters, and whose names are not given in the answer.(^) 16. Answer not conclusive on the court. — The answer of the defendant admitting the petitioner was elected is not conclusive upon the court.(^) 17. What may be shown on a recount. — As to what may be shown on a recount of ballots in a contested election case, what e>^idence is properly admissible, the rules applicable thereto, ques- tions of irregularities, etc., the cases cited will be found to be very ^111.(3) 18. Quo WARRANTO PROCEEDINGS. — Quo Warranto proceedings and judgment of ouster are not contem[)lated in proceedings to con- test an election (*) Lack of qualifications for holding the office should be contested by quo warranto, and not under the act in relation to the contest of elections. (^) 19. Decree may be set aside. — A decree obtained by fraud may be set aside at any time during the term at which it was ren- dered. (®) 20. Council to determine. — Where a special charter of a city authorizes the city council and invests it with the power to hear and determine all contested elections of its own members, no other tribunal than the city council has jurisdiction to determine the matter. (') 21. Summons returnable — when. — A summons issued out of the county court in a proceeding to contest an election, made return- able to a term of the court beyond the second term after the teste of the writ, is void.(^} (i) Kreitz vs. Behrensmeyer, 125 111., 141. (2) Bahe vs. Jones, 132 111., 134. (3) Kreitz vs. Behrensmeyer, .y«/>ra/ McKinnon vs. People, no 111., 305; County of Lawrence vs. Schmaulhausen, 123 111., 321; Kreitz vs. Behrens- meyer, 131 111., 591; Moffitt vs. Hill, 131 111., 239; Blankenship vs. Israel, 132 111., 314. (4) Simons vs. People, 18 111. Ap., 588. (5) Greenwood vs. Murphy, 131 111., 604. (6) Bahe vs. Jones, supra. (7) Keating vs. Stack, 116 III., 191. (8) Cavanaugh vs. McConochie, 134 III, 516. 550 CONTESTED ELECTIONS. [CH. XXII. 22. FORM OF PETITION TO CONTEST AN ELECTION. State of Illinois, "I In the County Court, County, ]^^' To the term, A. D. i8... A. B. ) vs. \ Petition to Contest Election. C. D. J To the Hon. J. K., judge of the county court, in and for county, Illinois: A. B., your petitioner, would respectfully represent and show to your honor, that your petitioner had been, and on that day was, and from thence hitherto has been, and still is an elector ( f county, Illinois; that he was an elector of said county at the date of the election next hereinafter men- tioned; that on the day of , A. D. i8..., in pursuance of law, an election was held in said county for, among other offices, {here state name of the office,'] of said county; that the said election was held at the various election precincts and voting districts in said county, the polls having been opened at each one of said precmcts according to law; that in said several and respective precincts and districts ballots were, at said election, received for said office of. ; that after the polls were closed acount was made by the judges of election of and at the respective precincts and districts afore- said of the votes and ballots at each of said election precincts and districts cast; that upon such count the judges of the respective precincts and districts aforesaid made certificates of the number of votes cast for the several and respective persons voted for, for the different offices, including therein the said office of. of said county, as said votes were counted by said judges, and said judges of said respective precincts and districts thereupon caused the ballot boxes containing the ballots voted in the respective precincts and districts, with their said certificate of the number of votes cast last above named, to be forwarded to the clerk of the county court of county, Illinois, who, together with two justices of the peace of said county, within four days of said election, opened the returns of said election and canvassed the same, as required by law. And your petitioner would further represent, that at said election he was the candidate of the Democratic political party, and that one C. D. was the candidate of the Republican political party, and that one E. F. was the candidate of the Prohibition political party, for the office of. of said county aforesaid, and that said C. D. had votes at said election, and that said E. F. had votes at said election, and your petitioner had votes at said election for the office of aforesaid, as the result was declared by said canvassing board, and that upon the result as last named the county clerk of said county issued and delivered to the said C. D. a certificate of election to the office of. aforesaid. Your petitioner would state, on information and belief, that the can- vassing board reached that result by adding together the votes for candidates for as the same were stated in the certificate of the judges of the respective precincts and districts aforesaid, and that any errors in the coun*: of the election judges entered into the result as declared by said canvassing board. Your petitioner would further show, that the names of the variou«j CH. XXII.] CONTESTED ELECTIONS. 551 townships in said county of. , Illinois, are as follows, viz: \_here name the townships']; that the township of , containing the city of , was divided into election precincts or districts, numbered from to inclusive; that the other portions of said county were divided into election precincts or districts, as follows, viz: [^here name the precincts or districts]: that at the election precinct or district in the city of numbered , votes were cast for the contestant which should have been counted for him, but which were counted by the said judges of said precinct or district for the said C D., his opponent; that at the election precinct or district ot , in said county, the judges counted one ballot for the said C. D. thai was inch scd within another; that at said voting precinct or district one G. H. voted, and was sn illegal voter; that at said election precmct or district of , in township, persons voted who were not naturalized citizens of tl.e United States, and who were not residents of the State oi Illinois; that at the election precinct or district of , in the said township of. , legal votes were cast for the contestant which were counted by the judges of said election against him; that at the election precinct or ' district of , in the said township of , more ballots were in the ballot box than were on the poll list; that at the election precinct or district of. , in the said township of. , one J. K. voted, who was under the age of twenty-one years; that at the election precinct or district of , in said township of. , one L. M., a convicted felon, was permitted to vote, and his vote was counted for said C. D., his opponent; {and in like manner proceed and state every legal objection that can be urged.] Your petitioner therefore prays that a summons may issue for the said defendant, C. D., commanding him to personally be and appear before the ( ounty court of county, Illinois, then and there to fully answer thi> petition, at its term thereof, A. D. i8..., and on the day of said term; that upon a final hearing hereof the ballots cast at said election may be recounted, and the correct count duly ascertained and found by and under the direction of the court, and if, upon a recount thereof under the direction ol the court, it shall appear that your petitioner has received more legal votes than the said C. D., then that the certificate of election issued to the said C. D. may be declared null and void, and a proper certificate of election may issue to your petitioner, and he may be ordered, adjudged and decreed to be the duly authorized and legally elected of said county of , and State of Illinois. And your petitioner will ever pray, etc. By N. & O., Attorneys. A. B. affidavit to petition. State of Illinois, 1 County, ]^^- On this day of. , A. D. i8..., before me personally appeared the above named A. B., and made oath that he is the petitioner in the above and foregoing petition, and knows the contents thereof, which have been read over to him, and that the same is true of his own knowledge, except as to matters which are therein stated to be on his information and belief, and that as to those matters he believes the same to be true. J. L., Clerk of the Court. 552 CONTESTED ELECTIONS. [CH. XX! I. 23. FORM OF ANSWER. State of Illinois, \ „ In the County Court, County, i^ • To the term, A. D. 18... C. D 1 vs. v Answer. A. B. j The ajiszvey of C Z?., the defendant, to the petition of A. B., the petitioner: This defendant, reserving to himself all right of exceptions to the said petition, for answer thereto says: That he denies that the petitioner, on the day of....... ., A. D. 18..., was an elector of. county, Illinois; admits an election on , A. D. 18..., in said county, and that at said elec- tion the polls were open at each of the voting precincts and districts of said county, and that ballots were cast and received thereat ; admits that after the polls were closed a count was made by the judges of the different pre- cincts and election districts of the votes cast thereat, and that upon such count being made in each precinct and election district the judges thereof certified the number of votes cast for the different persons voted for, for the different offices, including therein the office of county , as the votes were counted by said judges; admits that said judges of said precincts and election districts thereupon caused the ballot boxes containing the ballots voted at said respective precincts and polling places, with their said certifi- cate of the number of votes cast thereat, to be forwarded to the county clerk of county, and that said clerk and two justices afterward, and within four days of said election, opened the returns of said election from all said precincts and polling places, and canvassed the same; admits that at such election was the candidate for of the party; that was the candidate for of the party; and respondent was the candidate for of the party, and that the result of the election, as declared by said canvassing board, was votes cast for , the con- testant, and for , the candidate of the party, and for the respondent, and that said county clerk issued to respondent a certificate of election; that the said canvassing board merely added together the result as certified by the judges of the different precincts or polling places, as to the office of of said county. This respondent expressly denies that any errors or vices entering into the result as certified by the judges were preserved in the result as announced by the canvassing board, but avers the truth to be there were no errors or irregularities in said returns as certified by the election judges, except as hereinafter stated; admits that the precincts and election districts of the county of. are as set out in the petition of the contestant; denies that at the election precinct or district in the city of numbered , votes were cast for the contestant which should have been counted for him, but which were counted by said judges of said precinct or election district for your respondent; denies that at the election precinct or district of. , in said county, the judges counted one ballot for the respondent that was inclosed within another, but states the truth to be neither ballot was counted; denies that at said voting precinct or district one G. H. voted, and was an illegal voter; \ denying each and every allegation of the petition^ CH. XXII.] CONTESTED ELECTIONS. 553 [ The answer may then aver and specify any and all irregularities in regard to the voting or conduct of the electioti, and all irregularities that would be of betiefit or advantage to the respondent.'\ This respondent, further answering, shows that a recount of said ballots would give to the respondent majority for the office of , and expressly denies that the said contestant was ever legally elected by a majority of the legal votes of said county to said office of , and that he is entitled to the relief prayed — all of which he is ready to maintain. And having- fully answered, this respondent prays hence to be dismissed, with his reasonable costs by him made in this behalf, most wrongfully sus- tained. C. D. By R. & S., Attorneys. To this answer a general replication may be filed, as in chancery; or, the contestant may file exception to the answer, the practice being precisely the same as in chancery cases. 24 FORM OF A GKNKk.VL REPLICATION. State of Illinois, \ Of the term, A. D.18..., County, i ' County Court. A. B. ] vs. \ Replication to answer. C. D. J The replication of A. B., 1 tpliant, to the answer of C- D., defendant : The said repliant, saving and reserving to himself all, and all manner of advantage of exception to the manifold insufficiencies of said answer, for replication thereunto says, that he will aver and prove his said bill to be true, certain and sufficient in the law to be answered unto; and that the said answer of the defendant is uncertain, untrue and insufficient to be replied unto by A. B., repliant, without this, that any other matter or thing what- soever in the said answer contained, material or effectual in the law, to be replied unto, confessed and avoided, traversed or denied, is true, all which matters and things repliant is and will be ready to aver and prove, as this honorable court shall direct, and humbly prays as in and by his said bill he has already prayed. Solicitors for Compl't. 554 NATURALIZATION OF FOREIGNERS. [CH. XXIII CHAPTER XXIII. NATURALIZATION OF FOREIGNERS. 1. Definition. 2. Who are subjects of this jurisdiction. 3. How an aHen may be admitted to citizenship. a. Declaration of intention. b. Oath of allegiance — renunciation of allegiance. c. Facts to be proven. d. Renunciation of titles of nobility. e. Exceptions. 4. Congress alone may prescribe rules of naturalization. 5. Jurisdiction of county courts. 6. Aliens who have served in the army of the United States. 7. Aliens who have resided within the United States. 8. Widow and children of one who has declared his intention. 9. African aliens. 10. Term of residence. 11. Subjects of countries at war with the United States. 12. Children of naturalized citizens. 13. Foreign seamen. 14. Power to admit to citizenship judicial. 15. Declaration. 16. Perjury. 17. Record not to be contradicted by parol. 18. Effect upon children. 1. Definition. — A citizen of the United States is one who is in the enjoyment of all the rights to which the people are entitled, and botiud to fullfil the duties to which they are subject; this includes men, women and children. In a more limited sense, a citizen is one who has a right to vote for public officers; for exam- ple, representative in congress, and who is eligible to offices under the constitution and laws. Citizens are natives or naturalized.(^) 2. Who are subjects of this jurisdiction. — The subject of a foreign government who has made the United States his per- manent home, may become a citizen by complying with the act of Congress which is embodied herein. 3. How AN ALIEN MAY BE ADMITTED TO CITIZENSHIP. — An (i) I Bouvier's Inst., 64. CH. XXrir ] NATURALIZATION OF FOREIGNERS. 555 alien may be admitted to become a citizen of the United States in the following manner, and not otherwise: a. First — He shall declare on oath, before a circuit or district court of the United States, or a district or supreme court of the territories, or a court of record of any of the states having common law jurisdiction, and a seal and clerk, two years, at least, prior to his admission, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and, particularly, by name, to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject, 6. Second — He shall, at the time of his application to be admit- ted, declare, on oath, before some one of the courts above specified, that he will support the constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, and, particularly, by name, to the prince, potentate, state, or sovereignty of which he was before a citizen or subject ; which proceedings shall be recorded by the clerk of the court. c. Third — It shall be made to appear to the satisfaction of the court admitting such alien, that he has resided within the United States five years at least, and within the state or territory where such court is at the time held, one year at least; and that during that time he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same ; but the oath of the applicant shall in no case he allowed to prove his residence. d. Fourth — In case the alien applying to be admitted to citizen- ship, has borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility in the court to which his application is made, and his renunciation shall be recorded in the court. e. Fifth — Any alien who was residing within the limits and under the jurisdiction of the United States before the twenty-ninth day of January, one thousand seven hundred and ninety-five, may be admitted to become a citizen, on due proof made to some one of 556 NATURALIZATION OF FOREIGNERS. [CH. XXIII. the courts above specified, that he has resided two years, at least, within the jurisdiction of the United States, and one year, at least, immediately preceding his application, within the state or territory where such court is at the time held ; and on his declaring on oath that he will support the constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and, par- ticularly, by name, to the prince, potentate, state, or sovereignty where- of he was before a citizen or subject ; and, also, on its appearing to the satisfaction of the court, that during such term of two years he has behaved as a man of good moral character, attached to the constitution of the United States, and well disposed to the good order and happiness of the same ; and where the alien, applying for admission to citizenship, has borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, on his, moreover, making in the court an express renun- ciation of his title or order of nobility. All of the proceedings, required in this condition to be performed in the court, shall be recorded by the clerk thereof. Sixth — Any alien who was residing within the limits and under the jurisdiction of the United States, between the eighteenth day of June, one thousand seven hundred and ninety-eight, and the eighteenth day of June, one thousand eight hundred and twelve, and who has continued to reside within the same, may be admitted to become a citizen of the United States without having made any previous declaration of his intention to become such ; but whenever any person, without a certificate of such declaration of intention, makes application to be admitted a citizen, it must be proved to the satisfaction of the court, that the applicant was residing within the limits and under the jurisdiction of the United States before the eighteenth day of June, one thousand eight hundred and twelve, and has continued to reside within the same; and the residence of the applicant within the limits and under the jurisdiction of the United States, for at least five years immediately preceding the time of such application, must ha proved by the oath of citizens of the United States, which citizLMis shall be named in the record as witnesses; and such contimied residence within the limits and under the jurisdiction of the United States, when satisfactorily CH. XXIII.] NATURALIZATION OF FOREIGNERS. 557 proved, and the place where the applicant has resided for at least five years, shall be stated and set forth, together with the names of such citizens, in the record of the court admitting the applicant; otherwise the same shall not entitle him to be considered and deemed a citizen of the United States.(^) 4. Congress alone may prescribe rules of naturaliza- tion. — Since the adoption of the constitution of the United States, which gave to congress the power " to establish a uniform rule of naturalizatiou,"(^) the right to pass laws providing for the natu- ralization of such subjects of a foreign power as might from choice take up their homes within any of the states, and to confer juris- diction upon state courts to naturalize, has alone been vested in congress ; and no state has authority to legislate upon that subject.(^) 5. Jurisdiction of county courts. — It is now settled by the decisions of the supreme court of Illinois, that the county courts of the state are wathin the definition, as "having common law juris- diction," and may, under the authority of the federal statute, admit aliens to citizenship ;(■*) although, for a time, following the rulings of courts of other states, to the effect that the common law jurisdic- tion must be general, and not limited, it was held in Illinois, that its county courts could not exercise that jurisdiction. (^) It is held, that it is the fact of having a jurisdiction which belonged to the common law courts of England, and not the amount or extent of that jurisdiction, which gives the right. So, the right to take cog- nizance of any case at law, be it never so limited, brings the court within the definition of those having jurisdiction,^^) The county courts of Illinois, from the date of their origin, have had common law jurisdiction, larger since 1871, than before, and have alwavs been invested with jurisdiction to admit aliens to citizenship. Whenever legally convened for any business, these courts may grant certificates of naturalization; and the right to exercise a common law jurisdiction at the time, is not essential to confer this right. (i) U. S. Statutes, Title 30, ? 2165; Matter of Hawley, i Daley, 53i- (2) U. S. Constitution, Art. i, | 8. (3) Chirac vs. Chirac, 2 Wheaton, 259; State vs. Penney, 10 Ark, 621. (4) People vs. McGowan, 77 111,644; Dale vs. Irwin, 78 111., 171 ; City of Beardstown vs. City of Virginia, Si 111., 541. (5) Mills vs. McCabe, 44 ill., 194; Knox Co. vs. Davis, 63 111., 405; In the Matter of Martin Connor, 39 Cal., 98; Mills vs. McCabe, supra; Beardstown vs. Virginia, 76 111., 34. (6j People vs. ftlcGowan, supfa. 35 658 naturalization of foreigners. [ch. xxiii, 6. Aliens who have served in the army of the united STATES. — Any alien, of the age of twenty-one years and npward, who has enlisted, or may enlist, in the armies of the United States, either the regular or the volunteer forces, and has been, or may be hereafter, honorably discharged, shall be admitted to become a citizen of the United States, upon his petition, without any previous declaration of his intention to become such ; and he shall not be required to prove more than one year's residence within the United States previous to his application to become such citizen ; and the court admitting such alien shall, in addition to such proof of resi- dence and good moral character, as now provided by law, be satis- fied by competent proof of such person's having been honorably discharged from the service of the United States.(^) 7. Aliens who have resided within the united states. — Any alien, being under the age of twenty-one years, who has resided in the United States three years next preceding his arriving at that ao;e, and who has continued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty-one years, and after he has resided five years within the United States, including the three years of his minority, be admitted a citizen of the United States, without having made the declaration required in the first condition of section twenty-one hundred and sixty-five ; but such alien shall make the declaration required therein at the time of his admission ; and shall further declare, on oath, and prove to the satisfaction of the court, that, for two years next preceding, it has been his bona fide inten- tion to become a citizen of the United States ; and he shall in all other respects comply with the laws in regard to naturalization. (^) The right to apply for and be received to the privileges of citi- zenship, is not limited to males, but may be availed of by females, upon complying with the law.(^) 8. Widow and children of one who has declared his INTENTION. — When any alien, who has complied with the first condition specified in section twenty-one hundred and sixty-five, dies before he is actually naturalized, the widow and the children (i) U. S. Statutes, Title 30, I 2166. (2) U. S. Statutes, Title 30, \ 2167. (3) Priest vs. Cummings, 16 Wend., (N. Y.) 616. CH. XXrir.] NATURALIZATION OF FOREIGNERS. 559 of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such, upon taking the oaths prescribed ])y law.(^) 9. African aliens.— The provisions of this title shall apply to aliens of African nativity and to persons of Afri(!an desccnt.(*) 10. Term of residence. — No alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission, resided within the United States. (^) 11. Subjects of countries at war with the united STATES. — No alien who is a native citizen or subject, or a denizen of any country, state, or sovereignty with which the United States are at war, at the time of his application, shall be then admitted to become a citizen of the United States ; but persons resident within the United States, or the territories thereof, on the eighteenth day of June, in the year one thousand eight hundred and twelve, who had before that day made a declaration, according to law, of their intention to become citizens of the United States, or who were on that day entitled to become citizens without making such declara- tion, may be admitted to become citizens thereof, notwithstanding they were alien enemies at the time and in the manner prescribed by the laws heretofore passed on that subject; nor shall anything herein contained, be taken or construed to interfere with or prevent the apprehension and removal, agreeably to law, of any alien enemy at any time previous to the actual naturalization of such alien. (^) 12. Children of naturalized citizens. — The children of persons who have been duly naturalized under any law of the United States, or who, previous to the passing of any law on that subject, by the government of the United States, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be consid- ered as citizens thereof; and the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof; but no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of (i) U. S. Statutes, Title 30, § 2168. (3) U. S. Statutes, Title 30, § 2170. (2) U. S. Statutes, Title 30, | 2169. (4) U.S. Statutes, Title 30, | 2171. 560 NATUKALIZATIOX OF FOREIGNERS. [cH. XXIII. Great Britain during the Revolutionary War, shall be admitted to become a citizen without the consent of the legislature of the state iu which such person was proscribed.(^) 13. Foreign seamex. — Every seaman, being a foreigner, who declares his intention of becoming a citizen of the United States in any competent court, and shall have served three years on board of a merchant-vessel of the United States subsequent to the date of such declaration, may, on his application to any competent court, and the production of his certificate of discharge and good conduct during that time, together with the certificate of his decla- ration of intention to become a citizen, be admitted a citizen of the United States ; and every seaman, being a foreigner, shall, after his declaration of intention to become a citizen of the United States, and after he shall have served such three years, be deemed a citi- zen of the United States for the purpose of manning and serving on board any merchant-ve.ssel of the United States, anything to the contrary in any act of Congress notAvithstanding; but such seaman shall, for all purposes of protection as an American citizen, be deemed such, after the filing of his declaration of intention to become such citizen. (^) 14. Power to admit to citizexship judicial. — The power to naturalize, is judicial. (^) Being judicial, and not ministerial or clerical, clerks of courts have no power to pass upon applications for naturalization and grant certificates ;{*} but the act of receiving the preliminary declaration of intention is ministerial and not judi- cial, and may be performed before the clerk of the court.(^) Courts must examine the petitions for naturalization, and be satisfied of the truth of all facts necessary to entitle the alien to citizenship. The applicant should submit common law proof of the facts which entitle him to admission to citizenship. (^) 15. Declaration. — A declaration of intention to become a citizen, need not give the name of the sovereign to whom alle- giance is renounced, but may designate him or her as the king, (i) U. S. Statutes, Title 30, ^ 2172. (2) U. S. Statutes, Title 30, § 2174. (3) £jtr Parte Knowles, 5 Cal., 300. (4) In Re Clark. iS Barb.. 1 N. Y.) 444. (5) Butterworth's Case, Woodb. & M..323. (6) Spratt vs. Spratt, 4 Peters, 4061. CH. XXiri.] NATURALIZATION OF FOREIGNERS. 561 emperor, queen, etc., as the case may be, of such a country.(^) The face that no declaration was made, as required by law, before the final action of the court, admitting the alien to citizen- ship, can not be used to impeach the right of the voter to vote, for the reason that the final action of the court imported regularity in the proceedings antedating the action of the court. (^) 16. Perjury. — Swearing to a false aifidavit relative to an application made in a state court for naturalization, under the laws of the United States, is perjmy, and indictable in the courts of the state.(3) 17. Record not to be contradicted by parol. — The record of the naturalization of an alien, like any other record of a court, imports verit}^, aud can not be impeached for fraud, unless that defense has been specially pleaded, setting forth in what the fraud consists. Such a record can not be impeached, in a collater- al proceeding, when made by a court having jurisdiction, by show- ing by parol that the preliminary steps required by law, had not in fact, been taken. All that it was necessary for the alien or the court to have done before the entry of the order admitting him to citizenship, will be presumed to have been done.(^j Where, how- ever, a certificate of naturalization recites the person as P. W. D., whose real name is P. P. W. D., he may prove, by his own oath, that he was the person to whom it was issued, and that he is the person naturalized thereby .(^j 18. Effect upon children. — By the express terms of the stat- ute, the children of naturalized citizens, under the age of twenty- one years at the time of the admission to citizenship of the parent, become, ipso facto, if dwelling within the United States, citizens thereof.^^j "Where the foieign born bastard son of the wife of one admitted to citizenship, was, at the time, living with the family of the person so admitted, it Wiis held, that the above named section would include such child, and that the admission of the reputed father would operate to naturalize the child.(") (i) E:tr Parte Smith. 8 Blackf., (Ind.) 395. (2) People vs. McGowan, 77 111., 644. (3) State vs. Whittemore, 50 N. H., 245. (4) People vs. McGowan, supra. (5) City of Beardstown vs. City of Virginia, 81 111., 541. (6) Sec. 2172. ante ; Matter of Morrison, 22 How., 99; West vs. West, 8 (7) Dale vs. Irwin, 78 111., 170. [Paige, 433. 562 NATURALIZATION OF FOREIGNERS. [CH. XXIII. ADDITIONAL NOTES. 1. Whether certain persons are citizens. 2. Form of certificate of filing declaration. 3. Form of petition for final papers of naturalization. 4. Form of naturalization final oath. 5. Form of final certificate of naturalization. 1. Whether certain persons are citizens. — Any woman who might be lawfully naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen ; and the children of such a woman, under the age of twenty-one years, become citizens by virtue of her citizenship.(^) 2 FORM OF CERTIFICATE OF FILING DECLARATION. ' ERICA, ] mty, J Unitet? States of America, State of Illinois, County, I, , do solemnly declare on oath to , clerk of the court of the county of , State of Illinois, that it is bona fide my intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly to , whereof I was heretofore a citizen or subject. Subscribed and sworn to before me, this day of , A. D. 18... Clerk. State of Illinois, \ County, ]^^- I, , clerk of the court of the county of , in the State of Illinois, do hereby certify that the above is a true copy of the declaration of , an alien, duly made before me, and filed in my office, on this day of A. D. 18... Given under my hand and the seal of said court, at ,in said county, the day and year aforesaid. Clerk. 3. form of petition for final papers of naturalization. State of Illinois,) In the Court of said county , County, J ■ term, i8--. To the Hon , presiding judge of the court of the county of. , in the State aforesaid : The undersigned, , your petitioner, respectfully represents, that (i) Kreitz vs. Behrensmeyer, 125 111., 141. CH. XXIII.] NATURALIZATION OF FOREIGNERS. 563 he is an alien-oorn male person above the age of twenty-one years; that he has resided within the Hmits and under the jurisdiction of the United States for the space of five years last past, and for one year last past within the State of Illinois; that heretofore, to-wit, on the day of , A. D. i8..., (the same being two years and upward before the date hereof,) he declared on oath before the court of the county of , and State of. , (the same being a court of record, having common law jurisdiction, and a seal and clerk,) that it was bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly to , whereof he was heretofore a citizen or subject, as will more fully appear from the certificate under the seal of said court herewith presented. Your petitioner therefore prays that he may be admitted to become a naturalized citizen of the United States of America, pursuant to the several acts of Congress heretofore passed on that subject. , being duly sworn, deposes and says that the facts averred in the above petition are true and correct. Subscribed and sworn to before me, this day of , i8... Clerk. 4. FORM OF NATURALIZATION FINAL OATH. State of Illinois,) Court, County, / • term, A. D. /S... We, and , lawful witnesses, and residents of the county of , and State of Illinois, having first been duly sworn, depose and say that we have been personally acquainted with , an alien, who has applied to the court of said county of. , to be admitted as a nat- uralized citizen of the United States, for the space of five years last past; that during that time he has resided within the limits and under the jurisdiction of the United States, and one year at least in the State of Illinois, in mediately preceding the day of the date hereof; and that, as far as our knowledge extends, has behaved himself as a man of good moral character, and appears to be attached to the principles contained in the Constitution of the United States, and well disposed to the good order, well being and happiness of the same. Subscribed and sworn to in open court, this day of , A. D. 18... Clerk. State of Illinois, "I County, p-^- I, , do solemnly swear, in the presence of Almighty God, that I will support the Constitution of the United States, and that I do absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and more particularly the allegiance and fidelity which I may in anywise owe to , whereof I was heretofore a citizen or a subject. Sworn to and subscribed in open court, this day of. , A. D. 18... Clerk. 564 NATURALIZATION OF FOREIGNERS. [CH. XXIII. 5. form of final certificate of naturalization. United States of America, "| State of Illinois, > ss. County, J Be it remembered. That on the day of in the year of our Lord One Thousand Eight Hundred and Ninety personally appeared before , presiding judge of the circuit court of the county of. , and State aforesaid, (the same being a court of record, having and exercising common law jurisdiction, a seal and a clerk,) and sitting judicially for the dispatch of business at the court house in , A. B., an alien-born, free white male per- son, above the age of twenty-one years, and applied to the said court to be admitted to become a naturalized citizen of the United States of America, pursuant to the several acts of Congress heretofore passed on that subject, entitled "An Act to establish a uniform rule of Naturalization and to repeal the Acts heretofore passed on that subject," approved the 14th day of April, 1802; an act entitled "An Act in addition to an Act entitled 'An Act to establish a uniform rule of Naturalization and to repeal the Acts heretofore passed on that subject;'" approved on the 26th day of March, 1804; an act entitled "An Act supplementary to the Acts heretofore passed on the subject of a uniform rule of Naturalization," passed the 30th day of July, 1813; the act relative to evidence in cases of naturalization, passed the 22d day of March, 18 16, and an act in further addition to an act to establish a uniform rule of naturalization and to repeal the acts heretofore passed on that subject, passed May 26th, 1824; and the said having thereupon produced to the court record testimony showing that he has heretofore reported himself and filed his declaration of his intention to become a citizen of the United States, according to the provisions of the said several acts ol Congress, and the court being satisfied, as well from the oath of the said as from the testimony of and , who are known to be citizens of the United States, that the said has resided within the limits and under the jurisdiction of the United States for at least five years last past, and at least one year last past within the State of Illinois, and that during the whole of that time he has behaved himself as a man of good moral character, attached to the principles contained in the Constitution of the United States, and well disposed to the good order, well being and happiness of the same, and two years and upward having elapsed since the said reported himself and filed his declaration of his intention aforesaid, zV wa^ ordered, \\i2X the said be permitted to take the oath to support the Constitution of the United States, and the usual oath whereby he renounces all allegiance and fidelity to every foreign prince, potentate, state and sove- reignty whatever, and more particularly to , whereof he was heretofore a subject, which said oath having been administered to the said by the clerkof said court, iVz£/ascrrfunistrator: or that said has removed from this state ; or that said , after due notice has refused to file additio?ial bond, as required by an order of this court; or any other fact charged ifi the petitio?i and proven to the court). It is therefore ordered and adjudged by the court, that the letters of administration heretofore issued by order of the court, to the said upon the estate of the said , deceased, be and they are hereby revoked; that said pay all costs of this proceeding, that execution issue therefor and that the said , on or before the. ..day of. next, file in this court his account, showing the condition of said estate, together with all vouchers which he may have; until which day this cause stands continued. (i) No. 8. Form of Record to be made when Letters are Revoked for the reason that a Will ha$ been produced. State of Illinois, \ In the County Court — In Probate ^ County, i ^^' Term, A. D. i8.... Present: Hon .Judge. Attest: , Clerk. And now upon this. ..day of. , A. D. i8...., it being one of thedays ol said term, and the matter of the estate of. , deceased, coming now again before the court, and it appearing to the court that said left a last Will and testament, which was on,to-wit: the... day of. , 18..., duly admitted to probate in this court, it is ordered that the letters of administration heretofore granted upon said estate to , be, and they are hereby revoked. It is further ordered that said forthwith render an account to the court of his acts as such administrator, and turn over to , the executor named in the Will of said deceased, all the personal estate of said deceased now in his hands. (2) No. 9. Form of Record to be made when Letters are Revoked by reason of the Insanity, cfcc, of th» Administrator. State of Illinois, ) . . In the Countv Court — In Probate, County, i"""" term, A. D. iS.... Present: Hon Judge. Attest: , Clerk. And now upon this. .-day of , A. D. iS--., it being one of the days of (i) See pages 20 and 21. (2) Ante page 21. APPENDIX — FORMS. 573 said term, comes the relator , by , his attorney, and comes also, , heretofore appointed administrator of the estate of. , de- ceased, and this cause coming on to be heard upon the petition and charges of the said , relator, the answer of the said ,the replication there- to, and oral proofs , and the court having heard the argument of counsel, and being fully advised in the premises, doth find that the said so appointed administrator of the estate of , deceased, has since his said appointment as such administrator (or executor,) become insane [or habit- ual drunkard ; or convicted of ati i)ifanious crime; or has wasted the estate of said deceased in his hands; or has mismanaged said estate; or con- ducts himself in such manner as to endanger, etc.) It is therefore ordered and adjudged by the court, that the letters of administration [or testamentary,) heretofore issued to said by order of this court, upon said estate, be and they art hereby revoked ; and that said forthwith turn over to his associate executor , all property, choses in action, vouchers or money held by him as such executor {or ad- ministrator) : {Or where it is the sole executor or administrator,) that he render an account to this court of his acts as such, and turn over to his successor, to be appointed by the court, all property, choses in action and moneys remaining in his hands, as such executor {or administrator. {\) No. 10. Form of Record to be made when knotvledge comes to the Court of the Removal or contemplated Removal from the State, of an Executor or Administrator. State of Illinois, \ In the County Court — /;/ Probate, County, / • Term,A.D.iS... Present: Hon. .Judge. Attest: , Clerk. In the matter of the estate of ,.., deceased. And now upon this day, it being made to appear to the satisfaction of the court, that , administrator of the estate of , deceased, is about to remove {or has removed,) beyond the limits of this state, it is there- fore ordered, that the clerk of this court publish for four successive weeks in some newspaper in this county, a notice directed to said , adminis- trator as aforesaid, notifying him to appear in this court within thirty days after the date of such notice, and make settlement of his accounts as re- quired by law. No. 11. Form of Notice to be Used. State of Illinois,") In County Court County, j * of said County. To , Administrator of the Estate of. , deceased: You are hereby notified, that on this day an order was entered of record in said court, requiring you to appear therein within thirty days of this date and make settlement of your accounts as such administrator.(2) Dated at , this-. -day of , i8... , Clerk. (i) ^«/(f page 21. (2) -4«/... Present: Hon. , Judge. Attest: , Clerk. In the matter of the estate of. , deceased. And now upon this. ..day of. , A. D. i8..., it being one of the days of said term, and the matter of the estate of , deceased, coming now again before the court, and it appearing that , administrator, has been notified by notice published for four successive weeks in the , a weekly newspaper published in this county, said publication having been made by the clerk of this court in pursuance to an order heretofore entered, to appear upon this day and make settlement of his accounts as such admin- istrator; and the said , having been three times solemnly called comes not, but makes default. It is therefore ordered and adjudged, that the said be and he is hereby removed as such administrator {or exeaitor^ of the estate (or lastwill)oi. , deceased. It is further ordered, that said pay the costs ofthis proceeding, and that execution issue therefor.(i) No. 13. Form of Petition to require Executor or Administrator to give other and Sufficient Security. State of Illinois, \ In the Coimty Court, County, ]^^- To the Term, A. D.\%... To the Hon. ,J'idge of said Court — In Probate: Your petitioner, , of said county, would respectfully show unto your Honor, that heretofore, to-wit : on the. ..day of. i8..., in the matter of the estate of , deceased, letters of administration (or testamentary) were, by order of this court granted to ,as administrator (or executor), he having under the order of the court, filed his bond in the sum of $ , with and ^s his securities thereon, which bond was approved by this court. Your petitioner would further show unto your Honor, that since the approval of said bond, both of said securities have become insolvent [or , one of said securities has become insolvefit, and the remaining security ,is ittsufficient security ; or that the assets of said estate are much larger than was represented to the court in the petition for letters, to-wit: the sum of $ ,) wherefore your petitioner, who is an heir of said , deceased, (or a creditor) and entitled to distribution from the assets of said estate, prays that said may be cited to appear before the court at an early day, and required by order of the court to give other and suffi- cient security for the performance of the trust committed to him. (2) By , Attorney. (i) Ante pages 21 and 22. (2) Ante page 28. APPENDIX FORMS. 575 State of Illinois, \ County, j"^'^* being duly sworn, on his oath says, that the matters set forth in the above petition are true, as therein set forth. Subscribed and sworn to before me, this. ..day of. , i8... Clerk Tie, I i. J lin- >• Form of an Order Of the Court requiring o'her and Sufficient Security in pursuance of the furtyuing Pttilion. State of Illinois, "I In the County Cotirt~In Probate, County, ]^^' Term, A. D. id,... Present: Hon , Judge. Attest: , Clerk. In the matter of the application of to require other security from , Admi istrator of the estate of. , deceased. And now upon this. ..day of iS-.., it being one of the days of said term, comes the petitioner, , by , his attorney, and it appearing to the satisfaction of the court that the said has been duly served with a citation to appear and answer the petition of the said , more than ten days before this day ; and the said having been duly called, comes not, but makes default, it is ordered that said petition be taken for confessed by said And this cause coming on to be heard, upon said petition so taken as confessed, and oral proofs in support thereof, the court finds that and , securities upon said bond, are insolvent, &c. It is therefore ordered that the said , administrator as aforesaid, within. ..daj's from this day, execute his bond as such administrator, conditioned as required by law, in the penal sum of $ , with two good and sufficient securities, to be approved by the court, and file the same with the clerk, to which day this cause stands continued. (i) In the event of the failure of the administrator to execute and file a bond, as required by the order, he may be removed, in which case a record similar to No. 12 ante, may be made. Counter security may be required by the court to be given to the securities of an administrator, (^) in which case the forms given in Chap. 1 2 antey in case of guardians, may be used. Resionation of executors and administrators. — The forms given upon pages 339 and 340 for the resignation of guard- ians and the record of the acceptance of the same by the court may, with such changes as will be manifestly necessary, be used in case of the resignation of executors and administrators. (') (i) Ante page 28. (3) See page 22, ante. (2) Ante page 29. 576 APPENDIX — FORMS. IS, J Petition of security for release. — The petition to b filed by any one desiring to be released from liability upon the bond of an executor or administrator may be in form similar to that given upon page 350 for a security upon a guardian's bond. No. IS, Form of Inventory lo be filed by Executor or Adminislralor or surviving Partnen. State of Illinois, County In the matter of the Estate of. , deceased— Inventory./ INVENTORY OF REAL ESTATE. North-east quarter of Sec. No. 8, Township 19 North, of Range No. 9 East of the 3d p. m., held by warranty deed from , of date the. ..day of , 18... Said real estate is subject to the right of homestead in the family of said deceased, to the right of dower of. , widow of said deceased, and to a mortgage made by the deceased and his wife, on the... day of. A. D. 18... to one , to secure the payment of one principal note of $1000, due two years after date, and two annual interest notes of $80 each, one of which has been paid. PERSONAL ESTATE, No. Chattels. No. Chattels. 1 X 1 1 Two Horse Wagon— new. One " Phaeton. Lyon & Healy Piano— new. Stack Hay— 6 tone. 1 1 1 20 Bay Horse, " Archey," 9 years old. " Mare, "Pet," 6 " • Red Cow, 7 « « Head of Hogs. PERSONAL ESTATE — MONEYS AND CREDITS. Ant'tit. Money on hand at Time of Decease, . . - - $250 108 72 68 55 00 NOTBS AND AcCOtTNTS DUK DECEASED, AND DESCRIPTION OF THK SAME. Nkme of Debtor. Kind of Indebt- edness. Date of Note or Account. Principal. Accrued mt. Good, Doubtful or Desperate. James Felton, Henry Squires, Joseph Booker, Samuel Gray. Note. Acc't. Dec. Sept. Mar. Aug. 25 1 10 1 1881 1874 1870 1882 100 40 25 55 00 00 00 20 8 32 30 00 00 00 Good. Doubtful. Desperate. Good. 00 00 10 20 Total Pers. Estate, 8543 20 1 do certify that the foregoing is a full and correct Inventory of all the real and personal estate or the proceeds of the same, which was of. , APPENDIX — FORMS. 577 deceased, which has been committed to superintendence and manage- ment, or which has come to hands, possession or knowledge, and that the notes and accounts above described are in quality as above indicated. Dated this. ..day of. i8.... The same form may be used by a surviving partner, with the addition of a list and amounts of debts and liabilities due from the late firm. So, also, the following form of an appraisement bill, with slight change, may be used in such case.Q No. 16. Form of Warrant to Appraisers and Oath to be taken by them. This may be used in cases of Deceased persons and in the Settlement of Partnership Estates. Estate of , deceased. State of Illinois, ) In County Court, County, ]^^' Term, A. D. xS... The People of the State of Illittois, to , of the County of and State oj Illinois, Greeting: This is to authorize you, jointly, to appraise the goods, chattels, and personal estate of , late of the county of. , and State of Illinois, deceased, so far as the same shall come to your sight and knowledge, each of you having first taken the oath hereto annexed ; a certificate whereof you are to return, annexed to an appraisement bill of said goods, chattels and personal estate, by you appraised in dollars and cents ; and in the said bill of appraisement you are to set down in a column or columns, opposite to each article appraised, the value thereof. You are also authorized in like manner to make out and certify to the court, an estimate of the value of each of the several items of property allowed to the widow [or children) by law, known as the " Widow's Award " — awarding to her {or them) a gross sum in lieu of articles given by law and not found upon the inventory.(2)* Witness, , Clerk of the County Court of County, and the seal [seal.] of said Court, this. ..day of. , A. D. i8... , Clerk. No. 17. Oath of Appraisers. We, and each of us, do solemnly swear, that we will well and truly, without partiality or prejudice, value and appraise the goods, chattels and personal estate of , deceased, so far as the same shall come to our sight and knowledge ; and that we will in all respects perform our duties as apprais- ers, to the best of our skill and judgment. Subscribed and sworn to, this. ..day of , A. D. i8..., before me. , Justice of the Peace. ♦Note. — The last clause is uot required by statute, but ia order to acquaint tlie appraisers vlth their whole duty, it might not be inappropriate to add it. 578 APPENDIX — FORMS. No. 18. Form of Appraisement Bill. Estate of deceased. State of Illinois, •County >is, "1 , J ss. Ift County Court, Term, A. D. i8. An Appraisement Bill of the Goods, Chattels and Personal Estate of. late of said County, deceased, made by virtue of the annexed warrant; ABTICLES. Two Horse Wagon One " Ph£Eton, Lyon & Healy Piano, .... Stack of Hay, estimated at 5 tons. Bay Horse, called " Archey," . . " Mare, " "Pet," . . . Red Cow, 7 years old, . . . . Head Hogs — fat, Total, Dolls. CtB. 65 00 100 00 500 00 40 00 100 00 100 00 50 00 300 00 II255 We, the undersigned, appointed by the Honorable County Court of said County, to appraise the goods, chattels and personal estate of. , late of said County, deceased, do hereby certify that the foregoing is a true and correct Appraisement Bill of said goods, chattels and personal estate, so far as the same have come to our sight and knowledge ; that we have appraised each article at its true value according to the best of our skill and judgment, having first taken the oath required by law. Given under our hands and seals, this. ..day of. , A. D. 18. •• , [Seal.]] , [Seal.] \ Appraisers. , [Seal.] J We, the appraisers above named, do certify that we have attended and served. ..day..each, in appraising the estate of said deceased. Appraisers. No. 19. Form of a return of the Wi'tow's or Children's Award by the Appraisers. We, the undersigned, appraisers appointed by the Judge of the County Court of. County to appraise and value the goods, chattels and personal estate of. , deceased, do hereby make and certify to said Court the A PPENDIX — FORMS. 579 following estimate of the value of each article of specific property allowed by law to the widow, for herself and family, to-wit:(i) The Family Pictures and the Wearing Apparel, Jewels and Ornaments of the widow and minor children School Books and Family Library One Sewing Machine Necessary Beds, Bedsteads and Bedding for widow and family, The Stoves and pipe used in the family, with the necessary Cooking Utensils Household and Kitchen Furniture Milch Cow., and Cal... (being one for every four members of the family) Sheep and Fleeces, (being two for each member of the family) One Horse, Saddle and Bridle Provisions for widow and family for one year Food for the stock above specified for six months Fuel for the widow and family for three months Other property Total Given under our hands. ., y Appraisers. No. 20. Form, of Widow's Relinquishment and Selection. Estate of. , deceased. State of Illinois, "I ^^ County, J I, , widow of , deceased, do hereby relinquish all my claim to the following articles mentioned in the "Appraisers' estimate of specifii property," allowed me for myself and family, to-wit: \_IteiHS same as above in No. 19.] The aggregate value of which, as estimated, is dollars (| ), and in lieu of the same I desire to retain the following articles named in the "Appraisement Bill of Personal Property" of said , deceased, viz: ARTICLES. (♦) Dolls. Ots (*Wtien the personal chattels are appraised at the same or at aa amount less than the amount of the widow's or childreu's award, and the property Is all taken in satisfaction of the claim, it will be sufficient here to say: "All the articles named in the appraisement bill, to which refer- ence is made.") The total value of which, as appraised, is dollars, (| ,) and the balance, dollars ($ ), I prefer to have in money. (i) Witness my hand and seal, this. ..day of , A. D. 18... [Seal.] (i) Ante page 89. 680 APPENDIX — FORMS. No. 81. Form of Adveriiseme7it of Administrator's Sale of Personal Property. administrator's sale. Notice is liereby given, that on , the. ..day of. , next, between the hours of lo o'clock in the forenoon and 5 o'clock in the afternoon of said day, at the late residence of. , deceased, in the town of. county of. , and State of Illinois, the personal property of said decedent, con- sisting of. , and other articles, will be sold at public sale, in accordance with an order of the county court of. county. (i) Terms of Sale : — , Administrator. Form of a Report by Administrator that the Assets of the Estate do not Exceed the Widow's Award. State of Illinois, ) In the County Court, County, ]^^' Term, A. D. i2,... To the Hon , Judge of said Court: The undersigned having heretofore been appointed by this court ad- ministrator of the estate of. , deceased, would respectfully report unto your honor, that after being so appointed, he entered upon the duties of his trust and made a careful inventory of all the estate of every character of which the said deceased died seized, filed the same as directed by law, and the same has been duly approved by the court ; that the appraisers appointed by the court have appraised the personal chattels embraced in said inventory, and have made out and certified to the court an estimate of the value of each and every item of property allowed by law to , wid- ow of said deceased, known as the "widow's award," which report of the appraisers has likewise been approved by the court. The undersigned would further show unto your honor, that the value of all the property of which the deceased died seized, including personal chattels, money on hand at the time of decease, and notes and accounts, amounts to the sum of. dollars, as shown by the inventory and appraise- ment bill now on file in said court, to which reference is made for greater certainty; that the amount of the widow's award as fixed by said appraisers and approved by the court, is dollars (reference also being had to the report of the appraisers) ; that the whole assets of the estate do not exceed the amount of said award after deducting the necessary expenses already incurred ; that there is no other property, real or personal, belonging to said estate knuwn to the undersigned. (2) , Administrator. State of Illinois, "1 County, r^- being first duly sworn, on his oath declares that the matters set forth above are true to the best of his knowledge. Subscribed and sworn to before me, , this. ..day of , 18. .• ., Clerk. (i) Ante page 80. (2) Afite page 6^. APPENDIX — FORMS. 581 No. 23. Form of Eecord to be Entered of the Findiny of the Court upon said Report. State of Illinois, \ ^^ /« County Court— In Probate, County, \^^' Term, A. D. iS.... Present: Hon .Judge. Attest: , Clerk. In the matter of the estate of | j^^ ^ ^f Administrator. , deceased. J And now upon this day comes .administrator of the estate of..—-., deceased, and comes also, , widow of said deceased; and now said administrator files with the court his report, showing that he has caused an inventory and appraisement of all the property of which the said died seized, to be made and filed in the court, and that the personal property and assets of the said estate do not exceed the amount of the widow's award, after deducting the necessary expenses of administration already incurred. And the court having inspected said report and heard the sug- gestions of parties, doth find said report to be true. - It is therefore ordered, that said , administrator, as aforesaid, first pay outof said property the costs of administration already incurred by him, and the residue of said assets and property he deliver forthwith to widow of said , deceased, as provided by law, to be hers absolutely and forever, subject only to the payment of the funeral expenses of the deceased; that upon the report of said with vouchers showing a compliance with this order being filed with the court, the said shall be discharged from further service as such administrator.(i) No. 24. Form of Notice to be Given by an Executor or Ariminii^trafor of a term for Adjustment of Claims Against the Decedent. administrator's notice. Estate of. , deceased. The undersigned, having been appointed administrat...of the estate of. late of the county of. , and the State of Illinois, deceased, here- by give.-notice that. .he. .will appear before the county court of. county, at the court house in , at the term, on the third Monday in next, at which time all persons having claims against said estate are notified and requested to attend for the purpose of having the same adjusted. All per- sons indebted to said estate are required to make immediate payment to the undersigned. (2) Dated this. ..day of. , A. D. 18... , Administrat... (i) Ante page 63. (2) ^«/... Present: Hon. Judge, , Sheriff. Attest: , Clerk. In the matter of the estate of , deceased. And now on this day come of the of said deceased, and present., to the court. ..petition, praying that the court order that certain personal property of the estate of said deceased therein mentioned be sold at private sale. And it appearing to the court that the inventory of the per- sonal property of said estate has been heretofore filed and approved in this court, and that said property has been legally appraised, the court proceeds to consider said petition. And it appearing to the court froni the allega- tions in said petition contained, and from other satisfactory evidence, that it is necessary, for the proper administration of said estate, that said prop- erty be sold, that none of said property is reserved to the widow or included in specific legacies and bequests, and it further appearing that it will be to the interest of said estate that the property named in said petition be sold at private sale, it is therefore ordered that said , as aforesaid, proceed to sell at private sale, upon the best terms possible, the following named property: It is further ordered, that said property be sold at- price., not less than And it is further ordered, that said sale be upon the following terms : , and that as soon after making said sale as possible, the said make due report to this court of ..h.. acts under this order, as required by law. And it is further ordered that said petition be filed and recorded. No. 33. Report of Sale of Personal Property at Private Sale. Estate of , deceased. State of Illinois, )^ g^Ig gjn ^f ^he estate of , Deceased. County, J To the Hoft , Judge of the County Court of County. The undersigned, , of the of. , deceased, would respectfully report the following bill of the sale of. , of the personal estate of the said deceased, which sale was made at the date., herein stated, at private sale, in accordance with an order of this court. Terms of Sale . WHEN BOLD. AKTICLES SOIiH. NAME OF PURCHASER. Total Amount of Sales, $ Am'tof Sale. APPENDIX — FORMS. 587 State of Illinois, 1 /„ roww/y Court-in Probate. County, J Estate of. deceased. ..., , being duly sworn, depose., and say., that the foregoing is a true and correct bill of the sale., made by at private sale of of the said personal property, goods and chattels of , deceased ; that said sale was, in all respects, regular, according to the requirements of law and the order of this Court, pursuant to which it was made, and was fairly con- ducted, and that each article was sold to the person, and at the price stated, and that believe., that the prices obtained were fair market prices at the date of sale. Subscribed and sworn to before me, this. ..day of. , i8... , Clerk of the County Court. I No. 33. Form of Sale Bill of Personal Property at Public Sale. Sale Bill of the Estate of. , deceased. State of Illinois,! To the Hon .Judge of the County Court CIS, "I y, / County, J of. County. The undersigned, , of the of , deceased, would respect- fully report the following bill of the sale of the personal estate of said deceased, which sale was made at ,on the. ..day of , A. D. i8..., in accordance with an order of this court, and was first duly advertised by notice , a copy of which notice is hereunto appended and made a part of this report. Terms of Sale : ARTICLES SOLD. NAME OF PDKCHA8EB. Total Amount of Sales, am't of bale. We do hereby certify that the above Sale Bill in the estate of , deceased, is true and correct.(il Given under our hands, this. ..day of. i8 , Clerk. , Crier. State of Illinois, \ j^ ^^^^„^ Court, In Probate. County, j Estate of. , Deceased. , being duly sworn, depose., and say.., that the foregoing is a true and correct bill of the sale made by. ..as aforesaid, of the said personal (i) Ante page 8o. APPENDIX — FORMS. property, goods and chattels of ...., deceased; that said sale was in all respects regular, according to the requirements of law and the order of this court, pursuant to which it was made, and was fairly conducted, and that each article was sold to the person and at the price stated. Subscribed and sworn to before me, this. ..day of. iS... , Clerk of the County Court. Cojiy of Notice referred to in Caption of within Sale Bill. Sale. Notice is hereby given, that on , the. ..day of. , ne.xt, between the hours often o'clock in the forenoon and five o'clock in the afternoon of the said day, at the late residence of. , deceased, personal property of the said decedent, consisting of , and other articles, will be sold at pub- lic sale, in accordance with an order of the county court of. county. Terms of Sale : No. 34. Form of Order of Court Directing a Distribution in kind of Personal Property. State of Illinois, ) In the County Court — In Probate, County, Y^- Term, A. D. i8... Present: , Judge. Attest: , Clerk. In the Matter of the Estate of , Deceased. And now upon this. ..day of i8..., it being one of the days of said term, and the matter of said estate coming again before the court upon the motion of , administrator of the estate of said deceased, for a distri- bution in kind of the personal property of said deceased, among those by law entitled to share in said estate, and it appearing to the court that a sale of the personal effects of said deceased is not necessary for the payment of debts or legacies, nor for the proper distribution of the said effects, it is ordered that said administrator preserve the personal chattels vvhicli were of said deceased and distribute the same to the heirs (or legatees) in kind, share and share alike. (i) No. .^5. Form of a Citation to he uaed in any case tohere, upon Pclilion or Information of any per- son, or upon the Dclenninalion of the Judge himself, it becomes necessary to bring the Adjninistrator before the Court for any purpose. State of Illinois, County, T/ie People of the State of Illinois to the Sheriff of said County — G REETING : Whereas, complaint has been made to the county court of said County by one , that {here the clerk will insert an explanation of the reason moving the court to order the issue of the writ. ) You are, therefore, hereby commanded that you cite and give notice to (i) Ante page 151. APPENDIX FORMS. 589 the said , as aforesaid, that ..he., be and appear before the county court of. county, at a term thereof, to be holden at the court house, in , on the. ..day of. , A. D. i8..., then and there to and further to do and perform what shall then, by the said court, be required and adjudged. And hereof make due service and return as the law directs. Witness, clerk of the said county court, and seal thereof, [seal] at , in said county, this. ..day of. A. D. i8... , Clerk of the County Court. No. 36. Form of Petition for Sale of Real Estate. State of Illinois, 1 In County Court, County, J Term, A. D. iS... Estate of , Deceased. To the Hon , Judge of the County Court of said County — In Probate. Your petitioner , of the , of. late of said county, deceased, respectfully represents : That the said , departed this life at , on or about the day of. , i8... That your petitioner w... on the. ..day of. , i8..., duly appointed by the county court of said county {administrator or executor) of the {estate or last Will and testai>ient) of said deceased, aforesaid, as will appear by the records of this court. That the inventory, appraisement bill, and sale bill, in said estate, have been duly filed in the office of the clerk of this court, as required by law, and that the undersigned, as such administrator, has rendered to said court a just and true account of the personal estate and debts of said deceased, a copy of which account is hereto attached, and made part of this petition, for reference and evidence, and marked " Exhibit " That the personal estate of said intestate is insufficient to pay the just claims against the said estate, as will appear by reference to said account and Exhibit, and amounts to dollars, including doubtful and desperate claims, in the hands of your petitioner.., amounting to dollars, of which ...h... will probably collect or receive the sum of. dollars. That the debts and demands allowed against and the liabilities of the said estate amount to dollars. That there is the further sum of. dollars of just claims to be pre- sented and allowed against said estate, as will more particularly appear from said account, marked "Exhibit " of which he has paid dollars. That your petitioner applied all the proceeds of said personal estate which have come to ...possession toward the payment of said debts, as by account and vouchers on file in this court will more particularly appear, and that there is a deficiency of personal property to pay the debts of the said deceased. And your petitioner., further represent., that the said died having some claim or title to certain real estate in the county of- , and state of 37 690 APPENDIX FORMS. Illinois, described as follows, to-wit: {Here carefully describe the real estate by the legal subdivisions or other sufficie?it description,) which your petitioner believes the said owned in fee simple at the time of his death, subject to the right of dower of. , his widow. That said real estate was occupied by said as a homestead for himself and the family, consisting of the said , his widow and his children hereinafter named, and is still the homestead of the survivors. That the said real estate is reasonably worth the sum of. dollars. That the said deceased left bim surviving the said as his widow, having a dower interest in his real estate as above set forth, and the follow- ing named children having no guardian., resident in said county; the said being under fourteen, the said female... minor., under eighteen, and the said male minor., under twenty-one years of age. That said land is occuped by , all of whom, to-wit: are hereby made parties hereto, and are interested herein. Wherefore, in consideration of the premises, your petitioner., pray., that the said may be summoned and required to answer all the matters herein stated and charged, but not under oath, the necessity for answer under oath being hereby expressly waived, and that this court may appoint some discreet person as guardian ad litem for said minor heir., to appear for ...and defend ...interest herein. And that this court will first ascertain the right of dower or homestead remaining in any of said defendants by reason of their relationship to the deceased, and having set off and assigned the same, will order and direct your petitioner., to sell the remaining real estate according to law, or so much thereof, as may be necessary to pay the debts of said intestate, and to make such further order or decree in the premises as may be deemed necessary, pursuant to the statute in such case made and provided. And your petitioner will ever pray, etc.(i) , of , deceased. State of Illinois, "I County, J ■ , as aforesaid, being duly sworn, depose., and say., that the statements contained in the foregoing petition are true according to the best of... knowledge and belief. Subscribed and sworn to before me, this. ..day of , i8.... , County Clerk. Form, of a Cross Petition to be Filed by Widotv where Petition of Administrator does not De- velope the Right of Dower and Homestead. State of Illinois,) /// the Coiintv Court of said Comity, County, ) •^•^- 71'nn, A. D. iS-... 7!? the Hon , Judge of the County Coicrt of- County : The petition of , repectfuUy represents: That your petitioner, on (i) ^«/,f page 154. APPENDIX FORMS 591 or about tlie...day of. , A. D. i8..., intermarried with ; that her said husband afterwards, on or about the. ..day of. , A. D. i8..., departed this life intestate, leaving your petitioner his widow, and , , his children and only heirs at law. That the said died seized in fee of the following described real estate, situate, lying and being in the county of , and State of Illinois, to-wit: , being the same lands named in said petition. Your petitioner would further show unto your honor, that at the time of and before his death, her said husband, with his family, including peti- tioner, dwelt in the dwelling house situated upon the following named real estate, part of that above named, to-wit: , and that your petitioner, by virtue of her relationship to the said , upon his death be- came, and was entitled to dower and homestead of the value of ^iooo in the lands above described, which said dower and homestead, nor either of them have never been assigned or set off to your petitioner, and she has never received any compensation or equivalent therefor, or for any part thereof. Your petitioner therefore prays the aid of this honorable court in the premises, that the said petitioner and those named therein as defendants. may be made defendants to this application, and required to answer its various charges and allegations, [but not under oath, their respective oaths thereto being specially waived,) and that upon the hearing hereof, a decree may be made by this honorable court, that your petitioner recover dower and homestead of the value of fiooo in the premises above described, and that such dower and homestead may be assigned and set off to her in the manner and according to the provisions of the statute in such case made and provided, and that your petitioner may have such other, further and different relief, as the nature of her case requires, and your petitioner will ever pray, etc.fi) By , Solicitor. State of Illinois, \ ^^ County, ) On the day of. , A. D. i8..., before me, the undersigned, personally appeared the above named , who being first duly sworn, did make oath and say that she had read the foregoing petition and knows the contents thereof, and that the same are true of her own knowledge in substance and in fact, except as to such matters as are therein stated to be on information and belief, and as to such matters, she believes them to be true. Subscribed and sworn to before me, \ this. ..day of. , iS-.. J No. .38. Form, of Guardiaii's Answer on Pdition to Sell Real Estate. State of Illinois, ) In the Countv Court of said Comity, County, K'^' Term,A.D.\%..., vs. \ Petition to Sell Land. And now at this time come., the said minor , by their guardian (i) Ante page 164. 592 APPENDIX — FORMS. ad litem , and for answer to said petition, say that they are not ad- vised of the matters and things in said petition contained, and neitlier admit or deny them, and respectfully demand that said petitioner be re- quired to prove the same.(i) , Guardian Ad Litem. No. 39. Form of Answer of Adult Defendants to Petition to Sell Land. State of Illinois, "I In the County Court of said County, • Illinois, \ In the County Court oj sa\ .County, ]^^- rerm,A.D.iS. Thea?isiverof. , the adult defendants named in the petition of. ., administrator of. , deceased, for leave to sell the real estate of said deceased for the payment of debts and liabilities alleged to be unpro- vided for by the per social estate of said deceased. And the said defendants, by , their solicitor, now come, and for answer to said petition, or to so much thereof as they are advised it is material for them to make answer to, say : They admit the death of. , as alleged, and the appointment of the said as of the of said deceased ; admit the filing of an inventory, appraisement bill and sale bill as alleged, but deny that said inventory was a true inventory of the personal estate of said deceased ; but on the contrary these defendants say that, &c. {Here may be set out any facts impeaching the truthfulness of the inventory.) These defendants deny that the account of the personal estate and debts of said deceased, filed with this court, a copy of which appears attached to said petition as " Exhibit ," is a just and true account of said personal estate, debts and liabilities ; but aver that there was other and further per- sonal estate, moneys, notes and accounts, which was of said deceased, and which, or the proceeds thereof, should appear upon the credit side of said account, to-wit: [Here may be set forth in detail the property, debts, etc., which have not been reported.) These defendants further answering to said petition deny that the personal estate which was of said deceased has been faithfully applied or was insufficient to pay the just claims against said estate, but say that said , deceased, left ample personal estate, all of which was within the reach of the said administrator, and by diligence and care might and should have been recovered and applied to the extin- guishment of the debts and liabilities: that the debt of , amounting to the sum of dollars, part of said pretended deficit, is fraudulent and not a legal liability against said estate [orzvas, at the time of its alloivance by the court, barred by the statute of limitations) and should not have been allowed. And these defendants further answering, say that said petitioner has by want of diligence and care wasted said personal estate [or has converted to his oivn use the personal estate), without which all the legal liabilities of said estate would have been paid and no apparent necessity have existed for a sale of the patrimony of these defendants. And having fully answered, they pray to be hence discharged with their reasonable costs and charges, etc. (2) By , Solicitor. ''i) ^«/digQ 172. (2) ^«/^ pages 173, 174, 175. See, also, Greenwaltvs. McClure, 7 111, Ap., 153, 598 APPENDIX— i^ORMS. No. 47. Form of Exceptions to a Report of the Sale of Real Estate by an Exemdor or Administrator. State of Illinois,! ,, In County Court of said County, County, / ''' Term, A. D. i8... of the estate of , deceased, ! petition to sell Real Estate to pay debts. vs. Exceptions taken by , one of said defendants, to the report of sale of real estate, filed herein by the said petitioner. First Exception.— Y or that the said petitioner hath not shown in and by his said report, that the sale of the said real estate was advertised as required by law. Second Exception— Y ox that the said sale to the said , {the name of purchaser'] was made in fraud of the rights of this and the other defend- ants, as well as of the creditors of the said estate, because he says that the said with the knowledge and fraudulent procurement of the said peti- tioner, did not buy in his own interest and right, but in the interest and right of the said petitioner— and at less than the reasonable value of said real estate. Third Exception.— Yor that the bidders at said sale, including the said , {the purchaser], before and at the time of said sale, fraudulently combined together to prevent bidding and competition at said sale, and so said real estate was struck off and sold for a sum less than its fair value. Fourth Exception.— ¥ov that, etc. All which matters this defendant avers a readiness to prove to the sat- isfaction of the court, and insists that by reason thereof, he, with other defendants and creditors, is damaged: Wherefore this defendant doth except to said report, and prays that the same, upon consideration by the court, may be disapproved and said real estate ordered re-sold. By , Solicitor. No. 48. Form of an Order Overruling Exceptions Approving the Report or Sale and Confirming TiOe in the Purchaser. State of Illinois, 1^ j,^ County Court. Term, A. D.\%... County, J And now again comes the petitioner, by .his solicitor, and files his report of sale of real estate made under authority of the decretal order; come, also, , the minor defendants, by , guardian ad litem, and comes, also, , adult defendant, and files his exceptions to said report. And this cause coming on again for hearing upon the motion of the said petitioner for confirmation of said report, and the exceptions thereto of the said , and oral proofs, and the court having examined the said report and the said exceptions, and having listened to the argument of counsel, APPENDIX — FORMS. 599 and being fully advised, doth overrule the said exceptions of the said to said report, and doth further sustain the motion of the petitioner for a confirmation of said report of sale. And the court thereupon doth further adjudge and decree that said sale of lands be and the same is hereby con- firmed, and all the title in and to the said real estate so sold by petitioner, which was of the said , deceased, in his lifetime, declared to be forever fixed and confirmed in the said , purchaser. No. 49. Form of an Order Sustaining Exceptions to Report of Sale and Ordering a Further Sale. State of Illinois, 1„ t-^/^^ ^ ^^„ County i Comity Court, Term, A. D. i8... And now again comes the petitioner, by , his solicitor, and files his report of sale of real estate made under authority of the decretal order; come, also, the minor defendants, by , guardian ad litem, and comes, also, , adult defendant, and files his exceptions to said report. And this cause coming on again for hearing, upon the motion of the said petitioner for confirmation of said report, and the exceptions thereto of the said , and oral proofs, and the court having examined the said report and the said exceptions, and having listened to the argument of counsel, and being fully advised, doth sustain the said exceptions of the said to said report, and doth overrule the motion of the petitioner for a confirm- ation of said report of sale. And the court thereupon doth further adjudge and decree that said petitioner proceed again to make sale of said real estate in conformity to the statute and the decree of sale herein, and make to the court further report of his action under said decree. Form of Administrator's Deed of Real Estate Sold by Order of the County Court. The grantor, , as administrator of the estate of , deceased, under and by authority of a decree of the county court of. county, Illi- nois, rendered at the term, i8..., of said court, in a certain cause wherein said , as such administrator was petitioner, and , were defend- ants, having sold the premises hereinafter named at public auction to , on this day, for and in consideration of dollars in hand paid, conveys to , the interest of said .deceased, in the following described real estate, viz: , in the county of. , and State of Illinois. (i) Dated this. ..day of. , A. D. i8... State of Illinois, County, / ■^•^• I, , in and for the said county, do hereby certify that , as administrator aforesaid, personally known to me to be the same person.. (i) Kurd's R. S., Chap 309, § 12; ante page 177. 60C APPENDIX — FORMS. whose name subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that ..he., signed, sealed and deliv- ered the said instrument as. ..free and voluntary act, for the uses and purpos- es therein set forth. Given under my hand and seal, this. ..day of. , A. D. i8... , [Seal J No. 51. Form of Bill for Account between Co-Executors. State of Illinois, "I ^^ j^^ Circuit Court, Term, A. D. i8... County, J To the Honorable the Judges of the Judicial Circuit of Illinois, and of the Circuit Court of County— In Chancery Sitting: Humbly complaining showeth unto your honors your orator, of the county of. , and State of lUinois, that on the. ..day of. , i8..., one , of said county and state, departed this Ufe testate at the in said county, and that in and by his last Will and testament he nominated and appointed your orator and and , the defendants hereinafter named, executors of said last Will and testament : That said last Will and testament was duly probated in the county court of said county, on the... day of. , iB..., and admitted to record therein, as the last Will and testa- ment of said , deceased, and letters testamentary thereon were duly issued by said county court to your orator and the said defendants as exec- utors of said last Will and testament, and your orator and the said defend- ants duly qualified as such executors, and entered upon the administration of said estate. Your orator further showeth unto your honors, that the said left assets to be administered under and by virtue of said last Will and testa- ment, amounting in the aggregate to more than fifty thousand dollars, .as shown by the inventory of said estate, filed by your orator and the said de- fendants in said county as executors of said last Will and testament, and that such assets consist mostly of money, United States interest bearing bonds, promissory notes, secured by mortgage on real estate, accounts, and other personal estate, and that all of said assets have been taken possession of by the said defendants to the exclusion of your orator, and are now in the hands of the said defendants, except about the sum often thousand dollars of the same, which sum has been paid to the legatees named in said last Will and testament by order of said county court of county. Your orator further showeth unto your honors, that said defendants have hitherto refused to deliver any portion of said assets into the hands of your orator; that your orator has requested the said defendants to render an account to him, and to deliver to him as one of the executors of said last Will and testament, a just proportion of said assets, to be held by your orator as such executor, and that said defendants wholly refused, and still do refuse to comply with said request, and still retain in their hands and under their exclusive control, the whole of said personal assets. APPENDIX — FORMS. 601 Your orator, therefore, prays the aid of this honorable court in the premises, and to that end makes the said and defendants to this bill : That process of summons in chancery may issue against them, and that they may be compelled to answer all and singular the allegations of this bill, but the oath of said defendants to such answer, is hereby expressly waived ; that an account may be taken of the personal assets of said estate in the hands of said defendants, and that a just proportion of such assets may be delivered to your orator as executor of said last Will and testament, and that your honors will grant unto your orator such other and further relief in the premises, as to equity shall appertain, and to your honors shall seem meet, and your orator will ever pray, etc.(i) By , Solicitor. No. 52. ' Form of a Bond to be Given by a Legatee or Distributee to an Executor or Administrator before Payment of Legacies or Distributive Shares. Know all men by these presents, that we, , principal, and securities, are held and firmly bound unto , executor \_or administra- tor'] of the last Will and testament [_or estate] of. , deceased, in the penal sum of dollars, lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors and administrators firmly by these presents. Witness our hands and seals, this. ..day of. , i8... The condition of the above obligation is such that, whereas, heretofore, to-wit: on the. ..day of. , i8..., one , late of the county of. , and State of. , died, leaving a last Will and testament, which said Will was on the. ..day of. i8 •., by order of the county court of. county, duly admitted to probate, in and by the provisions of which a legacy of. dol- lars is bequeathed to the said , principal, as aforesaid; and whereas, under and by virtue of a further order of the said court entered of record on the. ..day of- , iS---, requiring the said legacy to be paid by the said , as executor \_or administrator] aforesaid, upon the execution by the said to the said as executor \^or administrator] aforesaid, of a refunding bond as required by Sections ii6and 117, of Chapter 3 of Hurd's Revised Statutes : Now, if the said , principal, as aforesaid, shall well and truly refund to the said as executor [or afl';;«'«z.?/ra^c>r] of the last Will \_orestate]o(sa\d. , deceased, from time to time within sixty days after demand lawfully. ..made, his due proportion of any debt which may hereafter appear and be allowed by any court having jurisdiction against the estate of said deceased, as apportion- ed by the order of said county court, including costs to accrue thereon, and fully indemnify the said to the extent of the amount of the legacy so paid, with interest, against loss, by reason of the payment by him to the said of said legacy before the filial settlement of said estate, then this bond to be void, otherwise to remain in full force and effect.(2) , [Seal.] , [Seal.] , [Seal.] (i) Ante page 135. (2) Ante psge 133. 602 APPENDIX — FORMS. The foregoing may be varied in its terms to suit the case of a payment to an heir or ci'editor. No. 53. Form of Adrninislrator' s Notice for Final Settlement. State of Illinois, ) ^^ gg^^^e of. , deceased. County, J To the Heirs of said , deceased: You are hereby notified that I have filed in the office of the county clerk of. county, State of Illinois, suggestion of the insolvency of certain of the debtors to said estate, and my final report of... acts and doings as of said said estate, and that I will, on the. ..day of. , A. D. iS..., apply to the judge of said court to have the same approved, and will at the same time and place ask an order of court for a discharge as such , at which time and place you can appear and object if you see fit.(i) Dated this-.-day of. , i8... , Form of an Order of Court making a Final Distribution among Creditors, Heirs or Residu- ary Legatees. State of Illinois,! In the County Com't—In Probate, County, j Term,A.D.iS... Present: Hon Judge. Attest: , Clerk. In the matter of the estate of. , I q^^^^ ^„ Pj„^l Settlement. deceased. J And now upon this. ..day of. , A. D. i8...., it being one of the days of said term, comes , administrator of the estate of. , deceased, and files his final account, and asks a distribution of the residue of assets in his hands among the yth class creditors of said estate, \_or the heirs of said de- ceased, or the residuary legatees under the last Will of said deceased^ And it appearing from the certificate of the publisher of the , a weekly news- paper, published in this county, that notice has been given to the creditors \_or heirs or legatees'] and all persons interested in the matters now to come before the court, that a final report would be presented to the court at this time, and an order of distribution made, by publication of a notice to that effect, in said newspaper, for two weeks, as required by an order of the court; and no one appearing to make objection to said account, it is or- dered that said final account be approved. And it appearing to the court that the said administrator has paid in full all costs of administration, and all claims against said estate having preference over those classed as of the 7th class, and that after the payment of said preferred claims, there yet re- mains in the hands of said administrator the sum of $1000, subject to distri- bution among claimants of the yth class ; and it further appearing to the (i) Ante page 149. APPENDIX — FORMS. 603 court, that claims amounting to the sum of |io,ooo have been allowed against said estate as of the 7th class, by this court and the circuit court of this county, to be paid in due course of administration, it is therefore or- dered that said administrator forthwith pay to each of said claimants a sum equal to ten per cent, upon the amount of his claim so allowed, and that upon the exhibition of vouchers therefor to the court, he be discharged from further service as such administrator. Where the account shows the payment of all debts and specific legacies, then the last order will direct a distribution of the balance shown by the account among the widow and heirs, or residuary legatees, specifically naming each with the amounts to be paid. Should it be shown, that advancements have been made to any heir in the lifetime of the ancestor, that fact may be noticed, and the order so shaped, as to eqtialize the distribution. (^) So, also, should it appear that one of the heirs is indebted to the estate, the order of distribution will provide for that contingeucy.(^) No. 55. Form of an Appeal Bond to be Oiven by an Administrator or Executor upon Appealing from an Order or Judgment of the County Court. Know all men by these presents, that we, , principal, and , security, are held and firmly bound unto , in the penal sum of. dol- lars, lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, oiir heirs, executors and adminis- trators firmly by these presents. Witness our hands and seals this. ..day of 18... The condition of the above obligation is such, that whereas on the. ..day of. , 18..., at a term of the county court of. county, then held, the above named [i/ie obligee'] recovered a judgment in said court in probate against the above named \^ihe principal'] as administrator of the estate of. , deceased, for the sum of. dollars, to be paid in due course of administra- tion, as of the. ..class, from which judgment the said , as administrator, has taken an appeal to the circuit court of said county. Now, if the said shall prosecute his appeal with effect and pay, in due course of administra- tion, whatever judgment may be rendered against him as such administra- tor, by said court, upon the trial of said appeal, or by consent, or in case the appeal is dismissed, will, in like manner, pay the judgment rendered against him by said county court, and all costs occasioned by said appeal whicii may by order of said court be taxed against him as such administra- tor, then the above obligation to be void ; otherwise to remain in full force and eff-ect.ts) , [Seal.] , [Seal.] (i) Ante page 143. (3) Ante page 209. (2) Ante page 149. 604 APPENDIX — FORMS. No. 56. Form of Record to he mncle of Presentation of the Will of a Non-Resident for Probate where there are Non- Resilient Attesting Witnesses. State of Illinois, \ „ In the Cotmty Court— In Probate, County, r^- Term, A. D. 1^... Present: Hon. , Judge. Attest: , Clerk, In the matter of the Probate of the last Will of. , deceased. And now on this... day of. , it being one of the days of said term, comes , by , his attorney, and presents proof to the satisfaction of the court of the death of , who died on the. ..day of. , i8... ; and the said also presents to the court a paper purporting to be the last Will and testament of the said , who, it appears, was at the time of his death, anon-resident of this State, who resided at , in the State of. ; and it appearing to the court further, that the said at the time of his death, was the owner of certain real estate in this county, it is ordered that said supposed Will be filed by the clerk, and that said clerk forthwith give notice to all persons interested, by {here insert the nature of the notice'] that on the. ..day of. , i8..., a dedimus potestatem or commission will issue from this court, for the purpose of taking the depositions of. and the attest- ing witnesses to said Will, (who are also shown to be non-residents of this State,) and that all persons interested may file interrogatories or cross in- terrogatories to be attached thereto. It is further ordered, that on having given such notice, the clerk of this court shall, on the said. ..day of. , proximo, issue, under the seal of the court, a commission directed to some competent person to take the depositions of said witnesses, and that he attach thereto all interrogatories and cross interrogatories filed by any par- ty interested. (i) No. 57. Form of Notice to he given hy the Clerk to persons interested in the Prohale of a Will of the Is- sue of a dedimus potestatem to take the Depositions of the attesting Witnesses. Estate of , deceased. To all persons Interested : Notice is hereby given, that a paper purporting to be the last Will of said deceased has been filed in the county court of. county, Illinois, for probate, and an order entered in said court that a dedini'is potestatem issue therefrom on the. ..day of. , A. D. iS-.., to take the depositions of the at- testing witnesses to said Will, touching the execution of the same. All persons interested, may file interrogatories or cross interrogatories to be attached to said commission, if they choose, before that date. Dated the. ..day of , i8... Clerk. Attorney. (i) Ante page 194. APPENTDIX FORMS. 605 No. 58. Form of Affidavit of Witnesses for Probate of Will. State of Illinois, ) In the County Court of said Cojinty — In Probate, County, J term, A. D. i8... Personally appeared in open court and , subscribing witness.. lo the foregoing instrument of writing, purporting to be the last Will and Testament of. , late of county, deceased, who, being duly sworn according to law, do. -.depose and say, each for. ..self, that..he.-. subscribed namctothe foregoing instrument as the attesting witness..at the request of thesaidtestat. ., and in presence, and in the presence of each other, on the day of , A. D. 18..; that..he...then and there subscribed iiamcthereto in presence, and declared the same to be h...last Will and Testament; and that the s dd testat...at the time of e.xecuting the same as aforesaid was of full age, ol sound mind and memory, and under no con- straint. Subscribed and sworn to in open court, this day of. , A. D. 18... County Clerk. No. 59. Form, of Dedimus to Prove Will. State of Ii linois, ) ^^ j^ ^^^^ County Court of said County. County, J The People of the State of Illinois, to • Whereas, A writing purporting to be the last Will and Testament of , deceased, has been produced in said court for probate of the same, upon which Will the name..of and appear as subscribing wit- ness..thereto, which said Will is hereunto annexed, and it being represented to said court that the said subscribing witness. .reside..at , in the county of , and State of. , and without the limits of said , and that said witness unable to attend said court. Now, therefore. We do hereby, in pursuance of the statute in such case made and provided, authorize and require you, the said , to cause the said subscribing witness-to come before you, at such time and place as you may designate and appoint, and faithfully to take the deposition of such witness.., on the oath or affirmation of such witness.., upon all interrogatories enclosed with or attached to these presents, and none other, and the same, when so taken, together with this commission, and the said interrogatories, to certify into our said court, with the least possible delay. Witness, , Judge of the said county court of. county, at , in the county aforesaid, this day of , A. D. 18... • Clerk. Judge. No. 60. Form of a Renunciation by a Widow or surviving Husband of a Testator of Claim lo Legacies and Bequests in a Will, and by Widow of a Jointure in her favor. To the Hon , Juds^e of the County Court of County: I, , widow S^or surviving husband^ of , late of the county of , and State of , do hereby renounce and quit all claim to the benefit of * any legacy or devise made to me by the last Will and Testament 38 60fi APPFADIX — FORMS. of said deceased husband \_or wife\ which has been exhibited and proved according to law [or otherwise, as the case may be^* and I do elect to take in lieu thereof my dower or legal share of the estate of my said husband \_orwife^. Dated at , etc. \ln case of a widow renovneivq her jnh.ture under the statute, insert between the asterisks "of the jointure provided in my lavor by" (here describe instrument and state date and parties to it). No. 61. Form of Clerk's Entry of the Probate of Will and Grant of Letters Testamentary. In the matter of the Probate of the last Will of , deceased, and the Grant of Letters Testamentary thereon to And now, to-wit, , i8-., comes , the executrix named in the last Will of , deceased, and presents the said Will to the court, together with her petition for the probate of the same and for letters testa- mentary thereon; and it appealing from the allegations of said petition (the same being under the oath of said petitioner) that said departed this life at , on the day of , i8..., leaving said last Will [here set forth all necessary jurisdictional facts— as the residence of the deceased, where his real and personal estate are situated, so as to show that the court has jurisdiction of the matter. '\ And it further appearing to the court from the testimony of and , whose names are subscribed to said Will, as attesting witness..to the execution thereof, that they were present on the day of. , i8..., at , and saw said sign his name to said Will {or as thefactmay be}, and that they believed him to be of sound mind and memory at that time; that he was of full age, and that they attested his Will in his presence, [see form j\lo_ 2 — '/ the testimony of both 'witnesses is tiot alike, the substance of that given by each may be recited; and if one of them is dead, that fact may be recited, as well as the proof of his hajidzvriting, etc.]; and it satisfactorily appearing to the court that said Will was in all respects executed and attested according to law, and that said , deceased, was, at the time of the attestation of the same, of sound mind and memory and of full age, [if the Willis contested for fraud, add, " and no proof o< fraud, compulsion or other improper conduct having been exhibited, which, in the opinion of the court, is sufficient to invalidate or destroy said Will "], it is ordered and adjudged by the court that the said Will be deemed and taken as duly proven, and that the same, together with the testimony of the witnesses above named, be admitted to record.* And it further appearing to the court that the said , the executrix named in said Will, is ready and willing to accept the office and trust therein confided to her, and that the real estate of the testator at the disposal of said executrix is of the value of dollars, and the personal estate of said testator is of the value of dollars, it is ordered by the court that she give bond as such executrix, with good security, in the penal sum of dollars; and the said executrix having made and presented her bond as above ordered, with and as sureties, the same is approved by the court and ordered to be filed and recorded; and the said having APPENDIX FORMS. 607 also laken the oath required by law to be taken by her as executrix, it is furtlier ordered that letters testamentary upon said Will be granted to her. And it is further ordered by the court that , and , of said county, be and are hereby appointed to appraise the goods, chattels and estate of said , deceased. No. 62. Form of Clerk's Entry when the Testator directs in the Will that Security be not Required of the Executrix. Proceed as in form No. 61 to the asterisk, and add: And the petitioner having taken the oalh required by law to be taken by her as executrix of said Will, and it appearing to the court that the testator left visible estate more than sufficient to pay all of his debts, and directed in said Will that said be not required to give security as executrix of said Will, and the court perceiving no cause, from its own knowledge, or the suggestions of creditors or legatees of said , to suspect said of fraud, or that the personal estate will not be sufficient to discharge all the debts, it is ordered by the court that such security be dispensed with, and that letters tes'amentary on said Will be granted to said No. 63. Form of a Refusal of a Person named as Executor to accept the Executorship of the Will. To the Hon ,Jiiifg^ of the County Court of County, in the State of Illinois: The undersigned, named in the Will of , deceased, as executor thereof, does herewith present the said Will to said court, and respectfully decline to act as such extcutor. No. 64. Form of Petition for Letters of Administration with Will Annexed. Petition of , in the matter of the Estate of , deceased, tor Letters of Administration To the Hon , Judge of the County Court of. County, in the State of Illinois : The petition of the undersigned, , respectfully represents that , late of the county of aforesaid, departed this life at , in said county, on or about the day of , A. D. i8..., leaving a last Will and Testament, and appointing execut...; that said And this petition further shows that the said died seized and pos- sessed of real and personal estate, consisting chiefly of. , all of said personal estate being estimated to be worth about dollars; that said deceased left surviving as heirs; that your petitioner (being of said deceased, and) believing that the said estate should be immediately administered, as well for the proper management of said as for the prompt collection of the assets, by virtue of. right under the statute, therefore pray tliat your Honor will grant Letters of Administration with Will annexed, to in the premises, upon taking the oath prescribed by the statute, and entering into bond in such sum, and with securities, as may be approved by your Honor. 60JS appp:ndix — forms. State of Illinois, \ County, r-"- , being duly sworn, deposes and says, tTiat the facts averred in the above petition are true, according to the best of h. -knowledge, information and belief. Sworn to and subscribed before me, , Clerk of the County Court of. County, this day of. , A. D. i8... Clerk. No. 65. Form of Bond for Executors and Administrators ivilh Will Annexed. Know all I\Ten by these Presents, That we, , and , of the county of , and State of Illinois, are held and firmly bound unto the People of the State of Illinois, in the penal sum of. dollars, current money of the United States, which payment, well and truly to be made and performed, we. and each of us, bind ourselves, our heirs, executors and administrators, jointly, severally and firmly, by these presents. Witness our hands and seals, this day of. , A. D. i8... The condition of the above obligation is such, that if the above bounden , and , execut...of the last Will and Testament of. , deceased (or administrator with the Will annexed of..- , deceased), do make, or cause to be made, a true and perfect inventory of all and singular the goods and chattels, rights and credits, lands, tenements and heredita- ments, and the rents and profits issuing out of the same, of the said deceased, which have or shall come to the hands, possession or knowledge of the said , or into thepossessionof any other person for ,and the same so made do exhibit in the county court for the said county of. , as required by law; and also make and render a fair and just account of. actings and doings as such execut... (or administrator) to said court, when thereunto lawfully required; and to well and truly fulfill the duties enjoined upon. .....in and by the said Will; and shall, moreover, pay and deliver to the persons entitled thereto all the legacies and bequests contained in said Will, so far as the estate of the said testat...will thereunto extend, according to the value thereof, and as the law shall charge ; and shall in general do all other acts which may, from time to time, be required of. by law, then this obligation to be void, otherwise to remain in full force and virtue. [seal] [seal] [seal] State of Illinois, "I _ /- * ' > ss. County, J I, , hereby certify that , and , who are each per- sonally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed rnd delivered said instrument as their free and voluntary act, for the uses and purposes as therein set forth. Given under my hand and seal, this day of , A. D. i8... APPKNDIX FORMS. 609 No. 66. Form of Oalh of Executor or Administrator with Will Annexed, to be Attached to and form part of the Probate of the Will. State of Illinois, \ County, J I do solemnly swear that this writing contains the true last Will and Testament of the within named deceased, so far as 1 know or believe, and that I will well and truly execute the same, by paying first the debts and then the legacies mentioned therein, as far as his goods and chat- tels will thereunto extend, and the law charge me; and that I will make a true and perfect inventory of all sucli goods and chattels, rights and credits, as may come to my hands or knov/ledge, belonging to the estate of said deceased, and render a fair and just account of my executorship, when thereunto required by law, to the best of my knowledge and ability: so help me God. Subscribed and sworn to before me, this day of. , A. D. i8... Clerk. No. 67. Form of Letters Testamentary, State of Illinois, ") ^^ County, i The People of the State of Illinois, to all to whom these Presents shall come y Greeting: Know ye, That whereas, , late of the county of , and State of Illinois, died on or about the day of , A. D. i8..., as it is said, after having duly made and published his last Will and Testament, a copy whereof is hereunto annexed, leaving, at the time of his death, property in this state, which may be lost, destroyed, or diminished in value, if speedy care be not taken of the same; and, inasmuch as it appears that has been appointed executor, in and by the said last Will and Testament, to execute the same : And, to the end that said property may be preserved for those who shall appear to have a legal right or interest therein, and that the said Will may be executed according to the request of the said testator, we do hereby authorize him, the said as such executor, to collect and secure, all and singular, the goods and chattels, rights and credits, which were of the said at the time of his decease, in whosesoever hands or possession the same may be found in this state, and well and truly to perform and fulfill all such duties as may be enjoined upon him by the said Will, so far as there shall be property, and the law charge him, and, in general, to do and perform all other acts which now are, or may hereafter be, required of him by law. Witness , Clerk of the County Court of the said [seal] County of , and the seal of said court, this day of , A. D. i8... Clerk. 610 APPENDIX — FORMS No. 68. Form for Proof of Signature of Subscribing ll'itness to Will by one acquainted uiilk Handwriting. State of Illinois, ) In the County Court of said County — in Probate, County, l^^' term, A. D. i8..., and on the day of. ,A. D. i8... In the matter of the last Will and Testament of- , deceased. Personally appeared in open court , competent and credible wit- ness.., who, being duly sworn according to law, do-depose and say, each for ...self, that personally know.the handwriting of. , subscribing wit- ness..to the annexed instrument of writing, purporting to be the last Will and Testament of. , late of. county, deceased, and that well know..the signature of. , having frequently seen write* , and that verily believe..that the namcof the said , subscribed as witness.. to the execution of the Will as aforesaid, thereto subscribed by the said as such subscribing witness.. Subscribed and sworn to in open court, this day of , A. D. i8... Clerk of the County Court, ♦state here such means of knowledge as the witness may have. No. 69. Form of Clerk's Entry of Order Appointing an Administrator to Collect. In the matter of the Appointment of an Administrator to Collect and Pre ei ve the Estate of , deceased. Now, to-wit, , iS..., it having been made to appear to the satisfac- tion of the court that great delay will be produced in the administration of the estate of , deceased, by reason of the contest pending in relation to the probate of the last Will of said , (or other cause,) and that an administrator to collect and preserve said estate ought to be appointed: It is therefore ordered by the court, that such administration be committed to , upon his taking the oath prescribed by law, and giving bond, with good security, in the penal sum of dollars. And the said now comes and takes his oath as administrator to collect, and presents his bond for the sum above mentioned, with and .., as his sureties, which is approved by the court, and ordered to be filed and recorded; and thereupon it is further ordered by the court that letters of administration to collect and preserve said estate be issued to said No. 70. Form of Bond of Administrator to Collect- The bond is in the same form as tliat of executors (see form No. 65), but the condition is as follows: The condition of the above obligation is such that, if the above bounden shall well and honestly discharge the duties appertaining to his appointment as administrator to collect the estate of , late of the county of. , deceased, shall make, or cause to be made, a true and APPENDIX — I^DRMS. 611 perfect inventor^' of all such goods, chattels, debts and credits of the said deceased as shall come to his possession or knowledge, and the same in due time return to the county court of the proper county; and shall also deliver to the person or persons authorized by said county couri, as executors or administrators, to receive the same, all such goods, chattels and personal estate as shall come to his possession, as aforesaid, and shall, in general, perform such other duties as shall be required of him by law, then the above obligation to be void: otherwise to remain in full force and virtue. [L.-.] [L-S.] State of Illinois, \ , County, J I, , hereby certify that , and , who are each per- sonally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered said instrument as their free and voluntary act, for the uses and purposes as therein set forth. Given under my hand and seal, this day of , A. D. i8... No. 71. Form of Oath of Administrator lo Collect. State of Illinois, j ^^ j^^ ^^^^ ^^^^^^^ ^^^^^.^ County, J I do solemnly swear (or affirm) that I will well aud honestly discharge the trust reposed in me as administrator to collect the estate of , deceased, according to the tenor and effect of the letters granted to me by the county court of. county, to the best of my knowledge and ability: so help me God. Subscribed and sworn to before me, this day of. , A. D. i3... Clerk. No. 72. Form of Letters of Administration to Collect. The People of /he State of Illinois, to all to zvhom these Piysenls shall some, Greeting: Kjtow ye, That whereas, , late of the county of. , and State of Illinois, deceased, as it is said, had, at his decease, personal property within this state, the administration whereof cannot be immediately granted to the persons by law entitled thereto, but which, if speedy care be not taken, may be lost, destroyed or diminished; to the end, therefore, tliat the same may be preserved for those who shall appear to have a legal right or intt^rest therein, we do hereby request and authorize , of the county of , and State aforesaid, to collect and secure the said property, wheresoever the same may be in this state, whether it be goods, chattels, debts or credits, and to make, or cause to be made, a true and perfect inventory tiiereof, and to exhibit the same, with all convenient speed, lu the county court of the said county of , together with a reasonable account of his collection, acts and doings in the premises aforesaid. Witness , Clerk of the County Court in and for said [seal] County of , and the seal of said court, ihis day of , A. D. i8... Clerk. APPENDIX — FORMS. No. 73. Form of Letters of Adniini dralion— De Bonis Non. State of Illinois,) ^ County, J The People of the State of Illinois, to all to whom these Presents shall come, Greeting: Know ye, That whereas, , of the county of , and State of Ilhnois, died intestate, as it is said, on or about the day of , A. D. i8..., having, at the time of decease, personal property in this state, which may be lost, destroyed or diminished in value, if speedy care be not taken of the same. And, zi'heread in open court; and it appearing to the satisfaction of the court that the said has committed waste of the property of said partnership, by APPENDIX — FORMS. 613 converting the moneys of said partnership in his hands to his own use, and refusing to pay therewith the creditors of said partnership, and to pay over to said administrator moneys of said partnership rightfully applicable to that purpose: It is ordered by the court that the said give bond, with good security, to the People of the State of Illinois, in the penal sum of dollars, conditioned for the faithful settlement of the affairs of said partner- ship, and that he will account for and pay over to the said administrator of the estate of said , deceased, whatever shall be found to be due, after paying partnership debts and costs of settlement of said partnership affairs; and that he have till next to comply with this order; to which time this cause is continued. No. 75. Ftrm of ClerVs Entry of an Order Directing the Personal Representative to Sell the Personal Property, In the matter of the Application of. , Administrator of the Estate of , deceased, for an Order to Sell the Personal Property, etc., of said Estate. This day comes , administrator of the estate of. , deceased, and presents his petition for an order directing him to sell the personal property, goods and chattels of the decedent, and shows to the satisfaction of the court here that it will be necessary to sell all the said property, goods and chattels of said estate not awarded to the widow, or selected and taken by her, [and if an executor applies, say, " and not specifically bequeathed to the legatees in the last Will of the deceased," or as the faclmay be\. It is therefore ordered by the court, that said adtninistrator proceed to sell all of said personal property, goods and chattels not awarded to said widow, or selected and taken by her, or specifically bequeathed as aforesaid, at public sale, as provided bylaw, [or at private sate, or a specified part at private sale, as the facts shown may require.^ No. 76. Form of Petition by an Administrator of a Deceased Partner for a Citation of a Surviving Partner who is Committing Waste, to give Security for the Faithful Settlement of the Affairs of the Partnership, etc. State of Illinois. 1 In Coiinty Court of said County, County, J . To the term, A. D. i8... To the Hon , judge of the county court of. county: The undersigned, , to whom letters of administration upon the estate of. , late of the county of , deceased, were heretofore granted by this court, respectfully represents that, at the time of his death, towit, on the day of , A. D. i8..., the said was a member of the partnership of. , doing business in said county, and composed of the following members, to-wit: said , deceased, and one , the said being now the surviving partner of said ; that, at the time of the death of said , the said partnership was the owner of certain real estate [describing it'\, of about the value of. dollars, and of personal property and notes and accounts deemed good amounting in value to dollars; and that said partnership was indebted to sundry individuals in the 614 APPENDIX — FORMS. sum of. dollars; that said has sold the personal property of said partnership of the vahie of dollars, and collected money from the debtors of said partnership amounting to dollars, in all dollars, yet the undersigned is informed and believes that said has not paid any portion of said debts, though he has often been requested by the part- nership creditors so to do, nor has he accounted with the undersigned in any way for any part of the said partnership estate, or paid to him any of said moneys, notwithstanding there is a large sum thereof, to-wit, dollars, in his hands, in excess of the sum necessary to pay said debts, and has been frequently requested so to do. Wherefore, the undersigned says that the said has committed waste of said partnership property, by converting the fame to his own use, and respectfully petitions your Honor to cause said to be cited to make answer in the premises, and that he may be ordered and required to give security, in such sum as the court may deter- mine, for the faithful settlement of the affairs of the said partnership, and for his accounting for, and pay'.ng over to the undersigned, as administrator as aforesaid, whatever shall be found to be due, after paying the said part- nership debts and costs of settlement; and that a receiver of the partnership property and effects be appointed by this court, in case the said shall refuse to give such security. Subscribed and sworn to before me, this day of , i8... Clerk of the County Court. No. 77. Form of Certified Copy of Order of Court Declaring Estate Insolvent and Discharging Administr ator State of Illinois, ~( In the Coiinly Court — In Probate, County, ]^^' term, A. D. iS... On day, the day of. , A. D. i8... Present: The Hon , Judge. Attest: , Clerk. In the matter of the Estate of. , deceased. And now on this day come , administrat...of the estate of. , deceased, and submits to the court a report of the condition of the estate of said decedent; and the court having duly examined the same, and it appearing iVom said report that the allowance made to the widow of said decedent amounts to the sum of dollars and cents (| ), and it further appearing that the personal property and assets belonging to said estate amount to the sum of dollars and cents ($ ); that there is no real estate belonging to said decedent; that the said personal properly does not exceed the amount ofthe said widow's allowance, after deducting the necessary expenses of administration; and the court finding the statements as set forth in said report to be irue, it is therefore ordered and adjudged by the court that the said estate be and is hereby declared to be insolvent; and further ordered, that the said administrat...turn over and deliver to , widow of said decedent, all the residue of said property and assets now in hands, as set forth in said report, affer paying the costs and expenses of administration, and that the said administrat...be discharge-.l APPENDIX — FOIIMS. 6] 5 from further duty, upon pa^ iugsaid costs and expenses and filing the receipt of the said widow for the residue of said property and assets. It is further ordered, that this order be recorded, and that the report of said administrat...be approved and recorded. Judge. State of Illinois, \ County, /-^•^• I, , clerk of the county court within and for the said county, do hereby certify that the foregoing is a correct copy of an order made and returned in the matter of the above estate, as appears of record in said court, in Record of Insolvent estates. Book , page In witness whereof, I have hereunto set my hand, and affixed the seal of said court, at my office, in , this day of , A. D. 18... Clerk. No. 78. Form 0/ Notice of Settlement Due— Administrator or Executor. State of Illinois, County, County Court Room , iS... M : As of the estate of , deceased, you are required to appenr before the county court of said county, on , the day of , A. D. 18.., to render an account current of your administration in said estate, in accordance with the following requirement of the statute: " All executors and administrators shall exhibit accounts of their administration for settle- ment, to the county court from which the letters testameutai-y or of administration were obtaiued, 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 administru- tion are fully completed." In sending this letter the object is to save costs, and if its requirements are not complied with, a citation will issue. By order of Hon , County Judge. , County Clerk. No. 79- Form, of the Entry to he made by the Cltrk if a Circuit Court, shoiving Proof made in that Court by a County Judge uho is a Witness to the Execution of a Will. \\\ the matter of the Probate of the last Will and Testament of. , deceased. And now, to-wit, , A. D. 18.., comes , the execut... appointed as such in and by the last Will and Testament of , deceased, by , solicitor, and presents the said Will, together with petition to tlie county court of county, for the probate thereof; and it appearing to the court that , one of the witnesses to the execution of said Will, isat this time judge of the county court of said county, and that his testimony is necessary to the proof of said Will ; and the said having appeared in open court, and upon his oath testified as follows: [/lere insert testimony, as inform No. 5.?] : It is ordered by the court that the proceedings in this cause, together with said Will and Petition, be certified by the clerk of this court to the county court of this county. INDEX. PAGE. ACCOUNTS OF CONSERVATOR, When to be filed 384, 392 Items composing 3^4 ACCOUNTS OF EXECUTORS AND ADMINISTRATORS, Administrators de son tort cannot render 56 When to be rendered 123 Order of distribution on 123 May be required at any time 124 Order approving, conclusive 126, 127 But items of, omitted may appear in future account 127 Court will not go back of order approving 127 To be rejected, when 13°. ^31 For monument to deceased 131 Order approving, several 13^ Principles of equity to govern approval of 138 \CCOUNTS OF GUARDIANS, Required 283 A stranger may be required to render 283 Balance on, to be paid ward 283 What they should contain 283, 285 Vouchers to accompany 284 To be verified by affidavit 284 When not final 284 Mistakes in, how rectified 284 When to be filed 2S3, 285 interest to be charged in 285 May be rendered after ward's majority 285 Proof to be submitted in support of 285 Rule in stating 285, 286, 296 Charging in, no longer liable as administrator 286 Allowances for education 286 removal 286 Charge for goods 286 May be opened, when 291 Approval of but prima faiie 291, 292 Presumption of law as to 292 Receipt based on erroneous 292 Form of 293, 294, 296 Order on as a final adjudication 348 618 INDEX. PAGE. ACTIONS, Of account, when 43 Which survive 66 Replevin, damages, etc 66 Do not abate by death of plaintiff 67 Of trespass, in case of death of plaintiff 67 To be continued 67 Prosecuted in name of deceased, a nullity 67 ADMINISTRATION, Taken from the clergy 9 Power of, formerly ecclesiastical, now civil 9 May be granted to creditor 9 When unnecessary 13 Rule in determining right of. 13 Reason of granting, to next of kin 12 When not granted to husband, wife, or next of kin 12 Cannot be granted to corporation 12 Rules governing granting do not apply 12 To others than next of kin, when 13 Upon the estate of living person void 14 Grant of may be delayed 15 When act of granting ministerial or judicial 16 On estates of non-residents, where 18 Revoked when false pretenses used 20 minor or non-resident appointed 21 Administrator becomes lunatic 21 Grant relates back to death 45, 46 W^ithout it, heirs and devisees may be sued 106 Unnecessary on estate of deceased infant 142 Estate must pass througli 141, 142 Grant of, local in effect 203 Foreign 203 ADMINISTRATOR, What court may appoint 9 Who to be appointed 9 not to be appointed 12 Surviving partner not to be appointed 12 To collect, when appointed 19 May be removed on refusal to perform duty 21 if found to be a minor 21 non-resident 21 About to remove from state, to be summoned 21 Resignation of 22 Not discharged until full settlement made 22 To deliver assets to successor 22 INDEX. 619 PAGB. A DMINISTR ATOR— Continued. To pay costs of resigiiaiiwii 22 Removal, acts valid 28 on failure to give bond 30 Surviving, may complete administration 30, 31 Improper conduct of, bond to be sued 32 Diligence required of 32, 35 Guilty oi devastavit, to make loss good . 33 Duty to interpose statute of limitation 34 Debt due from 34 Liability for acts of co-administrator 35 Liable as principal, and not as surety 35 Not liable for torts of co-administrator 35 money stolen 36 Duty to redeem mortgaged lands 36, 50, 75 Order on, binds securities 37.- 292, 293 Liable on his bond to administer la'^ <5 37^ • Under the laws of other states 37^ ADOPTION OF CHILDREN, Petition for 371.372, 378 must be by husband and wife 379 Notice of 371 Decree for 373- 378 When consent of child necessary 375 Rights of child 375 parents by adoption 37^ natural 377 ADVANCEMENTS, Considered a part of estate I43 Heir not required to refund ^43 Must be charged ^43 proven in case of infants ^43 Presumptions in relation to ^43 Real estate advanced H3 Personal estate ^43 Must be expressed in writing • ^44 To one who dies before ancestor i44 Do not affect widow ^44 Debts of heir to estate, considered i49 By guardian to build on ward's land 290 AFFIDAVIT, Of failure of administrator to turn over assets 63 non-residence ^59- i°o May be made by any person having knowledge 160 on information and belief 160 Contents of ^^ For arrest of insolvent debtor 481 AFRICAN, Aliens, may be naturalized 559 AGENCY, Terminated by death of principal 99 ALDERMAN, Contest of election of 533 ALIENS, May be naturalized 547 Declaration by 547, 560, 561 Must have resided five years • 555 renounce title of nobility 555 Who have served in the army 558 came here under eighteen 558 Widows and children of. 558,559, 5^1 INDEX. 625 PAGE. ALIENS— Continued. African born 559 Who are enemies 559 seamen 560 ALLOWANCE TO CHILDREN, When made — same as widow go Only in case of residents 90, 92 Policy of the law 90 Cannot be cut off by will 91 See "Widow's Award." ANCILLARY ADMINISTRATION, What law governs distribution in 9, 118 In, what necessary to justify a sale of land to pay debts 170 Different executors in different states 195 What is 203 May be called to account 204 What debts to be paid in 204 Legacies not payable in , 204 ANSWER, By guardian — form 591 adults 592 ANTE NUPTIAL CONTRACT, Effect of, on widow's award 90, 91, 92 APPEAL, Regularity of appointment can only be questioned on 16 Securities on administrator's bond, may 42, 208 In case of widow's award 94 claims in favor of executor or administrator 114 From order approving account 131, 209, 210, 295 Effect of such appeal 131 From probate of will, evidence in 188 Maybe had from probate ofv.ill 190 On, any competent evidence may be heard 190 Will not lie from feigned issues 194 From order allowing claim 114 Bond in case of 208, 603 Who may take 208 Incase of petition to sell lanci 208 condemnation proceedings 209 whose name prosecuted 209 Extent of the right in probate matters 209 In case of imprisonment 209 Condition of bond in 209 What the circuit court may do on 210 From an order removing administrator 210 626 INDKX. PAGE, AV^EM^— Continued. From an order appointing guardian 242 refusing to appoint 243 finding lunatic restored 39i. 405 By insolvent debtor 461,477,479, 482, 484 In bastardy proceedings 509 trials of rightof property 524. 53° contested elections 545 APPRAISERS, How appointed "^ Duty of 62 Compensation of. "^ To certify api^xaisement 62 fix widow's award 89, 93 consider lier condition in life 93 Form of warrant to 577 oath of 577 APPRAISEMENT, Warrant for, to issue 59 'lu be made "' Return of. ^^ As evidence "^ Further, to be made 63 Growing crops 79 Of partnership estate 83 Bill, averments in petition to sell real estate in relation to 157 ' form 578 APPRENTICES, Matters relating to, cognizant in county courts A ARBITRATION, Claims cannot be submitted to lo'^ By guardian, infant not bound 272 ASSETS OF ESTATES, Money received for causing death 35 Stolen by burglars 3^ Measure of liability, of securities 38 Real estate taken by administrator becomes 52 When do not exceed widow's award 62 To be delivered to widow, when 62 Upon discovery of, to be inventoried 62 Bound for payment of debts 65 Property in another state 72 Not applicable to payment of claims presented after two year- 102 Money paid by heirs, etc 125 Presumed to be paid out, when ^28 INDEX. 627 PAGE. ASSETS OF ESTATES— ro;//w7/^a'. Discovery of, after discharge of administrator 129 Recovery of, from a stranger 132, 133 Debts due from heirs 149 Money from sale of real estate 178 Where land devised 201 ASSIGNMENT FOR BENEFIT OF CREDITORS, Definition 428,429, 452 ' Power of states to pass laws f -r 428, 429, 460 Voluntary and involuntary 429- How made 429. 452 What is 430 Notice of. 430, 453 Passes title 431- 445, 45o, 470 Proceedings in, conclusive 432 Not void for irregularities 432 Preference of creditors void, in 434, 435- 449- 455. 456 Discontinua.nce of proceedings 435 Form of 435 Who may make 445 When one partner may make 445 By corporation 445 Of personal estate, need not be recorded 445 Construction of deed of 445- 44^ Deed of, when void 446. 447, 448, 449 how determined 44^ verbal, invalid 44^ may be made good 55" By insolvent debtor 469 effect of. 470 additional 473 Dividends in 453 ASSIGNEE, To give notice to creditors 43° tile inventory 43° enter into bond 43° report list of creditors 43' Power of court over 432, 454 May sell estate and collect debts 433, 474 Death of 434 Removal of 434 Bond of 439 To file list of credit irs 441 Is trustee 446, 450 Death of, or failure to act 455 Insolvent, deed void 447, 44^ G-'R INDKX. PAGE. ASSlG] 499. 509. 5i2 rules governing 498, 499, S^i pleadings in 499 may be compromised 499, 51° not abated by death 500 barred by marriage of mother 5°! new trial in 5^2 verdict in 502 Bond of father in 493, 507, 5o8, 5i4 Proceedings, infancy no bar to 507 Appeals in 509- 5 '2, 515 Where mother marries another 5" BASTARD, Right to property at common law 146 Mother of, natural guardian 214 Support of 494 Death of 498. 500 Twins 500 Son of a foreigner Soi BILL IN CHANCERY, Form of, may be used in contested elections 53^ BILL OF SALE, To be returned by administrator 80, 58? cerlified by crier and clerk 80 sworn to by administrator 80 BOND, Of public administrator ^8 administrator to collect ^9 executor ^5 to be signed, sealed, etc 26 Special, to be given when necessary to sell real estate 26, 27 Of administrator— form 27 New, to be given by administrators and executors 29 have relation back 29 Two may be given 29, 31 Execution of new, effect on old 29, 30 Joint and several 3i, 355 To be examined at January and July terms 31. 240 New, failure to give, works removal 32 May be put in suit 32 Not void on first suit 32 Certified copy of, to be evidence 32 Not signed by principal does not bind security 32 Liability on, for failure to plead defenses 34 030 INDEX. PAGE. BOND— Cotilinued. Voluntary, binding > 38, 240 Informalities no defense to 38, 41 Of administrator may be sued by adm'r de bo?iis non, when 39, 40 testamentary guardian 219, 225, 235 Statutory guardian 235, 236 should be approved 237 when void 238 Not at variance with statute, valid 238 Given by wrong name 238 Of guardian liable for rents 238 any breach 238 suits on 239, 354 covers any property of ward 239 void at law, enforced in equity 239, 349 when name of ward is incorrectly given 240 not to be avoided for slight defects 240 Inartificially drawn, not avoided 240 Adding new name 354 Of infant voidable 266 non-resident guardian 334 conservator 383 non-resident conservator 39^ For costs, by non-residents 210, 309, 393 clothing for insane persons 401 Of assignee 43° additional 433 By father of bastard 493, 507, 510 proceedings on 494- 495. 497 when to be void 498, 5°? administrator 6°3 For costs, not jurisdictional 226 BOOKS OF ACCOUNT, Subject to inspection by any one interested 70 See "Evidence." O. CANDIDATES, Ineligible 543 Informality in naming 543. 544 Bribery by 543 Tie of voters between 543 See " Elections." CAVEAT EMPTOR, Applies to sales by executors and administrators 79. ^76 of real estate 176 guardian's sales 3^9 INDEX 631 PAGE. CESTUI QUE TRUST, Duty of trustee to 358 May ratify act of trustee 360 Profits of trustee inure to 3*^1. 3^2 May repudiate acts of trustee 363 Acquiescence by 3^3 Sales to, by trustee 3^3 Trustee cannot deny title of 364 May pursue fund 3^ CHANCERY, See "Equity," "Equity Courts." CHANGE OF VENUE, Allowed in probate matters 113. ^^4 In bastardy proceedings 501 CHILDREN, Means lawful offspring 142 Of the half blood 142 Born in wedlock, presumed legitimate 142 Maybe disinherited 184 Effect of birth of, on will 196 Who entitled to custody of 214, 215 Abandonment of home by 215 Adoption of 37i Consent of, to be adopted 375 Of naturalized aliens, become citizens 561 t:iRCUIT COURT, Claims may be sued in 106 Cannot refer claims to arbitration 106 Change of venue to 113, 114 To classify claims ii? May change order classifying claims 119 grant probate of will 187 Appeal to, in probate of will 190 Contest of will in 191, 192 Jurisdiction to order sale of real estate by non-resident guardian.. 308 in contested elections 533 assignments 459 CITATION, To party charged with concealing goods 69 surviving partner 84 Should run in the name of the people 134 Abates on death of administrator 134, 286 Cannot run against personal representative 134, 286 May issue against one of two executors 136 To minor to choose guardian 229, 230 632 INDEX. PAGE. C ITATION— Continued. Not a suit at law 284 To father of bastard 494 form of 495 administrator — form 588 CITIZEN, Native or naturalized 554 Defined '• 547 CIVIL LAW, Rule of relationship derived from 10 As applied to descent 141 CLAIMS AGAINST ESTATES, Allowance by courts of equity 5 Payment of, out of order, a devastavit 32 May be brought by securities of administrator 38 Must have been allowed to entitle claimant to sue admr's bond... 41 To be paid with smallest amount possible 52 Lien upon all property of deceased 65 Not to be paid from rents 74 To be presented to county court 98, 102 in writing 98 sworn to 98 What is a 98 Must accrue in lifetime 98, in, 348 Claim for monument by jvidow not 98, 99 Judgment, when 98 Covenant broken before death 98 Firm debts are, when 99 Of an equitable nature 100 Forfeiture enforcible as loi Taxes due at death loi Must be presented within two years loi Presented after two years, how allowed 102 Exhibited to administrator • 102 Sufficient exhibiting 102 When principal in note dies 102 presented after two years 102 Barred if not presented within two years 103 Filed within two years, statute does not run 103 Presented after administration completed 103 Practice when presented after adjustment 104 When presented, should be allowed or continued 104 Not to be allowed except on notice 104, 112 Amount of, not increased by oath of claimant 105 Not due, how allowed 106 May be sued in circuit court 105 INDEX. fif^.S PAGE. CT.ATMS AGAINST Y.ST KT^S— Continued. Form of judgment on revival of judgment io6 Must be defended vigilantly 107 Heirs, legatees and creditors may defend 107 Promissory note executed as a gift iq8 Post mortem examination 108 Must be a present debt '. 108 Must not rest on contingency loS, no . Never presented to deceased, suspicious 108 Not barred where no inventory is filed 108 When judgment on, is general 109 Filing, is not commencement of si;ii 109 Of wards, not barred in five years no choice of remedies no When statute of limitations need not be urged 109, no On foreclosure — balance in Contingent in, 348 Not to be allowed for more than claimed in Prosecution of, not governed by technicalities in A judgment on, not a lien in Should be proven as alleged in Allowance of, is judgment in, 114 Barred by two-year statute, good as set-off. 113 In favor of administrator 114 Not exhibited within two years, barred 117 When allowed to be classed 117 For debts due school fund 118 Paid by administrator before allowance 119 Effect upon, of final settlem.ent 128 Must all be paid before heirs have distribution 150 Of insane person — how prosecuted 425 Against bankrupt, contest of 431 not due ^ 433 presentation of 442 exceptions to 442 insolvent debtor 472, 473 CLASSIFICATION OF CLAIMS, At common law 116 By statute 116, 117 Controlled by law in force at death 116 To be made when allowed 117 Order of, may be changed 119 CLERK. Of sale may be employed 80 Compensation of. — 80 To certify bill of sale 80 publish notice, when 16'" 634 INDEX. PAGE. C LE R K — Continued. Of court, as guardian ad litem 224 may examine under oath party applying for license 273 not to issue license to minors without consent 273 CLOTHING, For insane persons 400, 401 CODICIL, Contest over 19 See "Will." CO-EXECUTORS AND ADMINISTRATORS, Endangered, administrator to be removed 21 Liability for acts of 35 Not liable for torts of associate 35 Act of one is the act of both 47 Bill for accounting between — form 600 COLLATERAL PROCEEDINGS, When grant of administration may be questioned in 16 Grant to public administrator, not questioned 18 Widow's award conclusive in 94 Order on approving accounts conclusive in 126 In, decree may be questioned, when 161 Presumptions of law in i6r Failure to appoint guardian ad litem 161 Decrees to sell land in 168, 409 Orders admitting or rejecting wills in 189 appointing guardians 242 accepting resignation 341 Finding of courts upon question of insanity 409 county court in assignments 431 COLOR OF TITLE, l^t-ed from trustee to himself is 358 COMMISSION, 1 o issue to take testimony 186 Notice of — form 604 Order of court directing issue of— form 604 CONCEALED GOODS, Proceedings to secure 69 Not to collect debt 70 When power to be exercised 70 CONFIRMATION, Of sale of real estate by administrator 172 guardian 317 is a judicial act 317 Combination among bidders will defeat 318 INDEX. 6:^5 PAGE. CONFI RMATION— Contiiwed. Of sale cures all irregularities in sale 318 Maybe made by ward 3^9 Of sale under decree of foreclo.sure 329 CONSERVATORS, Appointment of, given to county courts 4- 381, 388, 404. 45i Law of guardians applicable to 381, 392, 4ii Officers of court 381 Validity of the appointment of, how questioned 382 Bond of 382, 404 Suits on bond of 382. 414 To have care of person and estate 382, 412 Inventory of 382 Shall collect property of ward 383, 412 account 383- 392 perform contract of ward 383 represent ward in suits 348, 413, 414 manage estate of ward 385> 412 invest money 386 sell real estate 386, 415 lease real estate 386 M.iy mortgage real estate 386 Removal of 388,404, 4" Resignation of 38o Compensation of. 389- 4i3 Who should be appointed 4o8 May be appointed for married woman 409 When liable on contract of ward 409 chargeable with interest 409 One of two mayact 4^2 Of spendthrift, have not custody of person 412 May change domicile of ward 412 Suits by 414 to set aside conveyance 4^7 Accounts by 42? CONSTITUTION, Provisions establishing county courts 3 Public administrator's oath to support 18 Prohibition of imprisonment for debt i33 Power under to pass bankrupt laws 428, 477 registration laws 54i CONSTRUCTION OF WILLS, Rules governing • ^99, 200 Words not taken in technical sense 200 Whole instrument considered 200 Intention of testator " ^oo 636 INDEX. PAGE. CONSTRUCTION OF yNll.l^S—Covfinued. When court of equity will construe 200 In relation to land sold 201 When land to be charged 201 Where custody of children is disposed of- 219 CONTESTED ELECTIONS, Jurisdiction in 533. 534 Of officers of towns, etc 533 city and village officers 533. 534 Statutory power in 533. 534. 546 May be conducted at any term 534 Power of court of chancery in 534 Who may institute proceedings in 535. 537 Proceedings in : 535, 536, 537, 538, 539. 54°, 54'. 547 Judgment of court in 544. 545 CONTINGENCY, Claim against estate must not rest on 108 CONTINUANCE, Of claim against estate 104 In bastardy cases 49° CONTRACT, Of deceased, when to be performed 53 Not terminated by death ■•• 98 For purchase of land, descends 99 Made by widow does not bind administrator 99 Legal, may be enforced 100 Descent varied by J4^ For contingent fee to attorney 126 Verbal, in sales of real estate i77. 178 Of infant voidable 265, 276 may be affirmed or disaffirmed 265 to sell real estate, voidable 265 for necessaries, binding 266, 277 ancestor, liability of heir upon 274, 275, 276 With infants, when avoidable 276 Of infant to pay interest, void 277 lunatic to be performed by conservator 384 when void and when voidable 385, 415, 416, 417, 418, 419 Laws impairing obligation of 429 CONTRIBUTION, By legatees.. i35 distributees 135 sureties 356 INDEX. 637 PAGE. CONVEYANCES, May be executed by surviving executor 47 What may be shown to sustain 47 Cannot be executed by administrator with will annexed -. 47 By administrator on sale of real t-slatc 177, 599 Attorney cannot execute 177 Which fail to recite decree 177 May be made to another than the purchaser 177 liy infant, voidable 265 married woman, void 265 how ratified 266 Of leal estate may be made to an infant 266 By guardian 309 non-resident guardian 309 Delivery of. 316 By trustee to himself, not void 358 conservators 3S7, 415 Of lunatic — when set aside 415, 416, 417 By assignee of insolvent debto)- 474 See " Deeds by guardian." CORPORATION, Cannot have letters testamentary 12 May assign for benefit of creditors 445 COSTS, Of resignation to be paid by administrator 22 Judgment to be rendered for 20 Person for whose use suit is brought, liable 32 Security for 40, 226 Wten administrator liable for 51, 77 Of settling partnership 84 allowing claims 104 In the discretion of the court 104 Against insolvent estates • 1 14, 115 Of administration to be paid before distribution 128 citation, etc., to be paid by administrator 130 Bond for, by foreign executors and admmistrators 205 Of guardian ad litem, how taxed 224 Bond for, by non-resident guardian 309 conservator 393 In insanity proceedings 391. 4oo bastardy proceedings 49^ Bond for, in bastardy proceedings 499 In trials of right of property 525 COUNTER SECURITY, By administrator or executor 29, 352 guardians 352, 355 Petition for, on guardian's bond 352, 353 conservator's bond 353 40 638 INDEX. PAGB. COUNTY, When divided, probate matters not changed 6 Letters granted in wrong, void i7 Proper county in which to take letters i8 COUNTY COURTS, Established by constitutional provisions 3 Statutory provisions in relation to 3> 5 Terms of ■' ■ 4 Always open for probate business 4 Jurisdiction for probate matters general and not inferior 4 Decrees of 4 cannot be questioned •••• 5 Records of, cannot be contradicted or varied 5 How far jurisdiction shared by courts of equity 5 Jurisdiction continues 6- i°° Equitable claims, may entertain 6, loo Cannot adjudicate conflicting interests 6, loo in case of resulting trust 6 Power of, to enforce orders, etc 6 May issue attachments 6, 134 fine and imprison 6 Unlimited general jurisdiction of. 7, 9 May construe wills 7 To exercise discretion in grant of letters 11 Having jurisdiction, acts not void 17 When to commit estate to public administrator 17 What gives jurisdiction of estates to 17 Has discretion when to appoint administrator to collect 19 May revoke letters, when « ^9 Duty of, to remove administrators who go from the state 21 require security 25, 27 Taking and approving security..,. 27 To examine condition of bonds at January and July terms..28, 31, 284 direct notice, upon petition of securities 28 compel adm'r to settle when securities petition to be released 28 cause administrator to show cause 29 remove executor or administrator, on failure 31 appoint administrator de bonis non 31 No power over trustees appointed by will 35 Order of, conclusive on securities - 37 To direct performance of contracts 53 No power over administrator de son tort 56 May order sale of desperate clain s 76 To order sale of personal proper' y 78 surviving partner to account 84 May protect estate of deceased partner 84 appoint receiver 84 INDKX. 639 PAGE. COUNTY COURTS— Continued. To adopt equity rules 84, 100,284, 315 May set aside award to widow 93 not modify award 93 Order of, allowing partnership debts 99 May give judgment for set-off. 105 To classify claims 117 May change order classifying 119 Make entry of claims 119 order of distribution 123 When it may vacate order made at prior term 127 Shall enforce settlements 129 May imprison, etc 132 To order payment of legacies 133 apportion deficiency among legatees 135 May grant injunctions, when 138 Duty to equalize le.L;acies 150 Cannot enforce payment of distributive share until after order [of distribution, 150 May order distribution in kind 150 coerce sale of real estate 155 order land platted 166 sold to pay debts 167 Confirmation of sale by 173 Has no discretion, where proof shows execution of will 189 Order of, admitting or rejecting will, when binding 189 Cannot overrule a testamentary appointment of guardian 219 Jurisdiction over minors 228, 230 Should refuse to ratify unwise choice of guardian 230 Duly of, to appoint guardian 232 Order of, conclusive on guardian 238 To approve lease of lands of wards 251 Approval of, not necessary ro valid lease 251 May fix the amount of expenditures for ward 257 , May compel guardians to render account 284 Powers in report of sale by gu irdian 315 May remove guardians 342 A large discretion given to 346 Ortlerof, transferring assets to account as guardian not necessary 350 Jurisdiction of, in the adoption of children 371 appointmt-nt of conservators 381, 457 insanity proceedings 394 To inquire into conservators' bond^ 388 Finding of, conclusive '•••• 409 Jurisdiction of, in assignments 429,432, 435 insolvency jirDceedings 463, 4S4 Always open 463 640 INDEX. PAGE. COUNTY COURTS— Conlhmed. Adjournment by 489 Jiiiisdiction of, in bastardy 500, 516 right of property 516 contested elections 533, 534 naturalization 557 COUNTY SEATS, Contest of elections in relation to 535 COUNTY TREASURER, When assets of estates to be paid to 136 Money of unknown heir or claimant 137 Escheats to be paid to 151 COURT OF CHANCERY, See "Equity," "Equity Courts." COVENANT, Action of, by executor or administrator 74 Breaches of, when claim against estate 99 occurring after death 103 Entered into by administrator 176 do not bind estate 176 Guardian not liable on implied 257 may bind himself by 259, 315 By guardian in mortgage, do not bind ward 359 CREDITOR, One who has paid funeral expenses is 13 When he may administer 10 His debt must be such as survives 13 Legatee not entitled to letters as 13 How deprived of right 13 One having claim for causing death, is not 13 Falsely pretending to be 20 May defend against claims 107, 285 Not prejudiced by mechanic's lien, when 110 affected by order of distril)ution of which he has no notice... 149 May maintain bill to correct title, when 168 Judgment on, conclusive 171 Of bankrupt 431, 440 Preference of, void 434, 435, 449 List of. 316 May except to claims 323 contest schedule of insolvent debtor 467 :reditor'S bill, Filing of, gives lien 119 INDEX. 641 PACK. CRIER OF SALE, May be employed go Compensation of. 80 To certify bill of sale 80 CRIMINAL RESPONSIBILITY, Of infants 278 Of lunatics 419, 420, 421 CUSTODY, Of minors 214, 263 By testamentary guardians 220 Of lunatics, etc 382 bastard child 498 JD. DAMAGES, Actions to recover, survive 66 For opening public road, personal 71 DEATH, Fact of, must exist, or letters void 14, 75 Reputation may be received to prove 14 Of sole executor or administrator 30 Money due for causing 35, 72 Of one of several executors 46 Suit for causing, may be compounded 51 Of sole plaintiff may be suggt sted 67 plaintiff not to hinder collection of judgment 67 does not defeat lien 68 defendant, execution toi;sue 68 owner of land, title vests i.i heirs 140 Money paid for causing, perstnal 72 Does not terminate any contract 98, 99 Terminates agency 99 Does not affect lien of creditor 119 Of bastard — effect on proceedings 498, 500, 507 father of bastard — securities 507 DEBTS DUE ESTATES, Failure to collect, devastavit. 32 From executor or administrator 34 Payment of, in case of living person 75 Sold in good faith 77 Maybe compounded or sold 77 Due at remote period 77 Not released by appointing debtor executor 191 DECLARATION OF INTENTION, By alien 555 642 INDEX. PAGE. DECLARATION ON BOND, To recover more than nominal damages, must allege and prove [special damages, 33 Not necessary to aver and prove devastavit 37 Breaches may be assigned 37 When demand to be averred 37, 38 May be against part or all the obligors 38 DECREE, To sell land, what it must show 156 form of 593 None can be made until all parties are in court 157 Contradicted by record 159, 160 Showing notice, concludes defendants 160, 314 Void, when parties not served 161 A nullity as to minors, when 163, 164 Which directs land named in the petition to be sold 166 What amount of land may be sold 166 For sale of land should specify terms 171, 172 be strictly followed 174 homestead : 166 Power given by, not exhausted by one sale 175 when exhausted 175 Effect of reversal of, on sale 176 By default, not to be taken against minors 222, 265 A ains minors abso.ute 267 'losell ward's laud — recitations in 312 Final against minors subject to writs of error 319 Judgment to have form of. 245 Approving assignment of dower — form 596 Against infant may be impeached 281 See "Judgment." For adoption of cliild 378 DEED BY ADMINISTRATOR, See "Conveyances." DEED BY GUARDIAN, What it shall contain 315 Must be based on decree 321 DEFAULT, Cannot be entered against minor 164 DEFINITIONS, Of devastavit. 32 legal representatives 71 family 92 children 142 next of kin 10, 141 INOEX. 643 PAGE. DEFINITIONS— Continued. Of heirs 146 will 181 perpetuity 184 ancillary administrator 203 guardian 213 orphan 233 domicile 252 trust 357 contingent remainder 364 assignment 428 permanent abode 539 citizen 554 DEGREES OF CONSANGUINITY, How reckoned 10 i^EMAND, To be made upon principal in bond 37 When not necessary 38 To be made before attachment issue 132 A necessary element 133 On legatee to contribute 135 DESCENT, Rules of 140 What will bar 142 Of estate of deceased infant 142 How illegitimates may take by 144 Of estate of illegitimates; 144 Not defeated by naked trust 149 Of property, governed I y law of domicile 150 may be varied by contract 148 to heir renders him liable for debts of ancestor.. .273, 274 DESPERATE CLAIMS, See "Doubtful and desperate claims." DEVASTAVIT, Definition of 32 Taking inadequate security 33 Releasing or compounding debt 33 Removing property from the state 33 Exhibiting untrue account 33 Failure to file inventory 34 For admitting claim barred 34 Failure to pay over money as ordered 37 Not necessary to aver and prove 37 Administrator who loans money of estate 50 pays moneyas 75 As applied to guardian 354 644 INDEX. PAGE. DEVISEE, May have action for waste, when 74 compel redemption of land 75 When witness to will i^9 title vests in 201 entitled to purchase money, of land devised 201 No claim on lands devised until debts are paid 202 DISCHARGE, Of administrator may not terminate duties 60, 128 conservator 39°, 4'i, 412 patient from hospital for insane 402 insolvent debtor from imprisonment 47i, 4S0, 499 debts 477 What class of debtors entitled to 482 Can only be made by the court 482 1)1 Si KIBUTIVE SHARE, Heir owing amount of 74, ^49 Wiien offset against indebtedness i49 Payment of, cannot be enforced until order made 150 1)1 -VI RIBUTION, What law governs '^8, 150 Among creditors, when made 123 and heirs 123 May be ordered at any time 124, 144 Administrator should procure order of 130 What will bar 142 Court may make, of estate of deceased infant 142 Before, must pass through administration 142 Advancements in ^43 May be delayed ^44 Not made without notice ^49 to heirs until all debts and charges are paid 150 Cannot be enforced until order of. 150 Order of, conclusive ^So In kind, when made 150 Of bankrupt's effects 43i. 443 DIVIDENDS, Are personal estate 7° From assignor's estate 43i DOMICILE, Of deceased 9 personal estate ^5° testator to govern devise of personal property 198 Will to be proven at 198 Of administrator 204 INDEX. <^45 PAGE. DOMICILE— Continued. Of parent fixes that of child 252 child 244, 26 Definition of ^^^ Remains while in transit ^52 Not lost by conditional removal 252 There must be intention to change 252 Of wards may be changed, when 4i2 person charged to be insane 4°? electors.. : 538, 539, 54o, 54i DOUBTFUL AND DESPERATE CLAIMS, To be inventoried ^°' ^^ Prima facie uncoUectable ^ Suggestion of. ' Compounded and sold 7 Filed, etc ^^ Avails of ^7 Form of petition, on 5 3 notice ^ ^ order of court, on S^l DOWF.R, Right to, when will renounced ^4i Assignment of ^ When cannot be assigned ■'"S Guardian to institute proceedings for assignment of 251 Real estate of infant subject to 31° Petition for — form 59° Report assigning — form 59 DRUNKARD, Letters to one becoming, to be revoked 21 Conservator for " ^77 Contracts of, void and voidable 385, 4^5 Swindling a ■^ 5 Reformation of. 3 ^ Contract of. 409, 4i9 Criminal responsibility of 42i, 423 F.JECTiMENT, In suit of, appointment of administrator cannot be questioned, 17, 18 When administrator may maintain 5° By mi^iors, when estoppel will apply 271 lunatic 4^4 ELECTION, Of widow ^41 Contest of - — 533 Of alderman, how contested - 53^ 646 INDEX. ELECTION— Continued. Of mayor, how contested 533 Cannot be enjoined 534 Not vitiated by change of place 536 Calling of. 536 Who may question 536 Adjournment of, for dinner 537 Not void, when 537 Rules of — design 537 Void 544 ELECTOR, Any, may contest election 535 Who is 538, 539 Presumptions of law in relation to -. 539 Intention of 540 Declarations of. 540 Intention of, to govern 543 EMANCIPATION, Of infant, when presumed 268 EQUITABLE CLAIMS, Count> cQurt may adjust 6, 100 By one administrator against another 135, 136 EQUITY, To govern approval of accounts 138, 226 Will not interfere to relieve against a judgment in probate, where [there is a legal defense, 107 interfere to protect against fraud 107 Rules of, to be followed by probate judge 85, 100, 129, 284, 296, 315 Will enforce re-payment to administraror 129 Contest of will in 191, 192 Will not relieve against contract with infant 276 When it will open account of guardian 292 compel conveyance by ward 316 Infant may have relief in 348 Jurisdiction in, of trusts 362 Will protect interest of a lunatic 414, 415 EQUITY COURTS, When will entertain jurisdiction of probate matters 5 All parties must be before it 6 Power over trustees appointed by will 35 Will adopt action of probate courts 35 Where several bonds have been given 43, 348 Will interfere to protect securities from fraud 43, 292 May decree sale where executor refuses 47 compel delivery of funds of estate 70 INDEX. 647 PAGE. EQUITY COURTS— Cojifr nurd. Will not require heir to pay to administrator 74 May entertain suits to settle partnership 85 When to settle estates 129 May require heirs to refund I34 Power of, to order sale of lands of infants and lunatics... 169, 320, 387 Having obtained jurisdiction 169 Contest of will in 191. 192 When it will construe wills 200 Will interfere to marshal assets 204 Have jurisdiction over infant's estate 216, 217, 218 Will always guard rights of infants 216 Jurisdiction of, over infants' estates not affected by statutory [provisions, 217 May set aside answer of guardian ad litem 217 appoint a person to prosecute or defend for infants 218 Jurisdiction over guardians 218 When allow ward's estate to be sold 288 Will order property of infant into the custody of foreign gujudian, 334 Will vacate sales, when 360, 416 enforce trusts 362 fasten a trust upon lands 3^3 Powers of, in insanity proceedings 408 Invoked to set aside conveyance of lunatic 416, 417 Cannot interfere with assigned property 432 Power of, in contested elections 534, 535. 548 ERROR, In proceedings will not vitiate i7, 322 accounting, not evidence of fraud 131. 132 Failure to make guardian a party, is I57 To order sale of real estate without proper notice 160 Failure to appoint guardian ad litem 163, 233 In proceeding, cannot be urged in collateral proceedings 169 appointment of guardian, corrected on appeal 242 Failure to fix time of sale of ward's land, is 3^3 Writs of, may be prosecuted by infant 3^9 ESCAPE, When officer not liable for 482 Of father of bastard = 5oo ESCHEATS, Property of bastard ^4^ one having no heirs 15^ to be paid county treasurer 151 ESTATES, When committed to public administrator 18 administrator to collect 19 648 INDEX. PAGE. "EST AT¥.S— Continued. Represented by administrator 48 Not liable for fraud or torts of administrators 50 contracts 51 bound by warranty of administrator 54 liable for monument 98 When insolvent, to be so entered 114, 115 insufficient to pay all debts 117 Not bound by covenants of administrator 176 Of minors under care of equity courts 216 Insolvency of— form of suggestion 583 To be declared insolvent 63, 115 ESTOPPEL, Makers of bond cannot deny 42 Inventory as 61 Of infants, not within the rule 270, 271, 279 In pais, when not allowed 271 In equity, when enforced against infants 271, 272, 318 Fraud an element in 272 Deed of guardian no, on ward 315, 316 Of ward from claiming real estate sold 318 lunatic 416 assignor by recitation in deed 438 EVIDENCE, Certified copies of bonds to be 32 In suit on bond 34 Inventory as 60 Appraisement as 62 Inventory not conclusive 62 In proceedings to secure concealed goods 69 Of representative character 74 Admissions as 74 Of claims against estates 98 Allowance of partnership debts against individual estate 100 Judgment as 105 against administrator in another state, as 105 estate, prima facie, as to heir 113 Of advancements 143 service of summons 159 publication rr 159, 161 To be preserved in the reco' d 162, 222 Of debls against an estate in ariutlier state 170 Judgment on claim, prima facie 171 against foreign administrator 171 Of non-resident witnesses to a will 186 In probate of will 186 INDEX. 649 PAGR. EVIDENCE— Cott/mued. On appeal from probate of will i8o What must appear to establish will i88 When it diflfers as to mental coiulitiun i88, 189 brings case within the rule 189 Copy of will as 190 Of will probated in foreign st.ue i94 Foreign will, as '95 Nuncupative will, as '9^ Of lost will 198 Not admissible in construction lT will 200 Foreign letters, as 206 Incompetent, against infant to be excluded 222 Taken withuut notice to guardian ad litem, inadmissible 223 Against infants, must be taken before proper officer 223 Of infancy 224 Against infants in scire facias 26S In suit against heir for debt of ancestor 269 To prove authority of minor to contract 285 account of guardian 291 Approval of account of guardian, as 3^7 O. fraud by trustees 4o8 In insanity proceedings 408 Of insanity 410,411. 412. 417 Under plea of insanity 419. 420 In bastardy proceedings 49i- 499, 5ox, 503, 504. 505> 5o6 trials of right of property 527 contested elections 536 naturalization of foreigners 560 EXCEPTIONS, To claim in case of assignment 442 Form of. 442 Notice of. 443 To report of sale of real estate— form 598 EXECUTION, May be issued for costs 22 Sales under, duty of administrator to redeem 5° May be sued out by foreign administrator 68 issued after death of plaintiff. 68 defendant 68 Notice before issue of, in case of death 68 May be issued for judgment on set-off. 105 not be awarded against administrator 112, 113 Issued at suit of foreign administrators 68, 207 against father of bastard 494 650 INDEX. PAGE. EXECUTORS, Resignation of 22 Bond of • 25 To be removed on failure to give new bond 30 Surviving, may complete administration 30 Death or disqualification of « 30 Improper conduct of, bond to be sued 32 Guilty oi devastavit, to made loss good 33 Duty to interpose all known defenses 34, 107 Liable as trustees 35 To cause will to be probated 45 May refuse to act 45 Before probate of will 46 Officers of the law 46 Death of one, survivor to act 46 Survivor may convey 46 One of two or more may sell personal property 47 To administer intestate estate ex officio 47 make inventory 59 return appraisement 60 Liable for want of due diligence 63 To be discharged where assets do not exceed widow's allowance 63 May be attached, when 63 maintain actions of trover, etc 66 Must sue and be sued jointly 66 Surviving, may probate against estate of deceased 67 Substituted in place of deceased plaintiff 67 To have notice before issue of execution 68 May take measures to secure concealed goods 69 When to take rents 70 Suits by, when in representative capacity 71 Title to personalty vests in • 73 May maintain covenant, when 74 Suggestion of desperate claims 76 Report sale of desperate claims 76 Authority at common law 76 Not to remove property 77 May sell personalty 7^ not purchase at his own sale 79 Interest in growing crops 79 To return sworn bill of sale 80 Personally liable in partnership Sr Must act by authority of will 82 May compel surviving partner to settle 83 To notify widow and set off award 89, 92 give notice of adjustment of claims 97 attend term for adjustment 98 INDEX. 651 PAGE. E X E C UTO RS— Continued. Have notice of presentation of claims 97 Duty of burial is upon him 100 May be compelled to pay funeral expenses 100 To be summoned to answer claims 103 Revival of judgment against 106 Claim in favor of. 114 To exhibit account 123 May provide for minor children, when 126 Failing to pay on demand, suit on bond 132 to be imprisoned 132 Duration of imprisonment of 133 Being residuary legatee 136 May have citation against co-executor 136 To deposit unclaimed money 137 Compensation of 137 Additional allowances to 137 Having sold lands, may apply, etc 155 To file petition 155 Cannot purchase at his own sale 174, 359 Sale of real estate by, under power 178, 179 Survivor may execute will - 179 Devise to, to sell 179 Cannot in part decline 191 Who may be 191 riuring disability of. 191 Married woman as 191 Debtor of testator as 191 In different states, may be nominated 195 Acting in two capacities 225 EXHIBITION OF CLAIMS, Must be made within two years loi What is 102 Sufficient to file 106 Not made within two years ■• 117 EXPENSES OF ADMINISTRATION, Need not be probated 100 What administrator allowed for 126 EXPENSES, Of caring for estate of non-resident, preferred claim iS FAMILY, What the term includes 92 652 INDEX. PAGE. FATHER, Guardian by nature 214 Must support child ■ 215, 230 When bond for necessaries of child 215 Court may allow for support of child 216, 287, 289 Of infant, entitled to custody 229 Emancipation of infant by 268 Not liable for unauthorized torts of child 278 If suitable, entitled to be conservator 407 Of bastard — examination of. 488 to be committed 488, 489, 493, 494, 497 bondby 488, 493 citation against 494 in contempt, when 497 wh.n to have custody of child 498 not to be discharged as an insolvent 499 escape of 500 competent as witness 491, 502 death of. 507 FEES, Of clerk to be remitted 115 administrators, etc. i37 Not to exceed six per cent I37 Of trustees 202 guardian ad litem 224 guardian 284, 286, 287, 290, 291 conservator : 389. 425 assignee 45°. 47^ clerk 476 jailor 479. 480 FINAL SETTLEMENT, Not to be made without notice 123 Before made, costs to be paid 126 Order approving, conclusive if parties are notified 127 Disposition of real estate 128 Conditional order of 128 Order of, a nullity, when 128 After, presumption 128 Order of, may be entered nimc pro tunc 128 Effect of, upon claims 128 When effected by chancery 129 Of guardians — conclusive 292, 293 Form, notice of. 602 order in — form 602, 615 FORECLOSURE, In county court i99. 325 INDEX. 653 PAGE. FORECLOSURE— a;«//;//^^-a'. No strict, allowed 199, 325, 386 Of mortgage of ward's real estate 325 made by conservator 386 Parties in. 330 Form of bill for 325 decree for 327 See " Mortgage." FOREIGN ADMINISTRATORS AND EXECUTORS. May sue out executions 68, 207 Judgment against, not evidence here 105, 203 Balance found in favor of, conclusive here 107 Judgment against, no evidence 171 No privity between, and domestic 171 May be called to account here, when 204 When they may not release mortgage 204 Statutory powers in this state 205 Not bound to account here, when 205 May be supplanted by domestic 205 Common law powers 206 No privity between, and domestic administrator 206 FOREIGN DEBTS, Administrator should collect 48 Not included in term "property" 72 In judgment against administrator 171 FOREIGN GUARDIAN, Power in this state 244, 338 FOREIGN ASSIGNMENTS, Preference over 461 FORFEITURE, Enforcible loi For swindling idiot '. 385 FORM, Of oath of administrator 15 executor 15 bond of executor 25 administrator 27 new bond of administrator or executor 29 security for costs 40 warrant to appraisers 61, 577 oath of appraisers 62, 577 judgment on revival of judgment 106 account current by executor, etc 124 petition for appointment of guardian 234 ' 41 654 INDEX. PAGE. FORM— Continued. Of nomination by infant over fourteen 231 on becoming fourteen years of age 232 petition by relative of infant 232 citation to minor to choose guardian 233 return of officer on citation 235 petition where parents are unfit 236 guardian's bond 240, 241 letters of guardianship 241, 245 record of appointment of guardian 245 guardian's inventory 245, 246 order of court approving inventory 246 guardian's account 293, 294 petition for sale of real estate 299 notice of application 301 affidavit of service 3°' special bond of guardian in case of sale of real estate 302 decree for sale of ward's real estate 303 notice of guardian's sale of real estate 304 report of sale by guardian 305 order approving sale by guardian 306 deed by guardian 306 petition for leave to mortgage real estate of infant 323 order to mortgage ward's lands 324 report by guardian of mortgage of ward's real estate 325 petition to foreclose 325 decree of foreclosure v 3^7 report of sale under foreclosure 32S record of appointment of non-resident guardian 333 bond of non-resident guardian 333 certificate of clerk 334 judge to foreign record 334 petition for removal of property 335 order for removal of property 33^ petition by guardian to resign 339. 34° order accepting guardian's resignation 34" petition for removal of guardian 342 summons to guardian 343 order for removal of guardian 344 petition for counter security on guardian's bond 350 record on petition for counter security 35i bond under order for counter security 352 report of giving counter security 353 petition for adoption of children 372 notice to parents of child 372 consent of parents 373 order of court for adoption of children 374, 375 INDEX. 655 PAGE. FORM— Con /tfiufd. Of petition for appointment of conservator 382 summons in lunacy cases 382 order of county judg:e on petition in insanity 395 precipe 396 subpoena 396 venire 397 verdict of jury in insanity 397 order of court finding insanity 398 warrant for committing lunatic 399 bond to furnish clothing to lunatic 401 of assignee 430, 439 assignment for benefit of creditors 435 inventory of assignee 438 notice to creditors 44" list of creditors 441 claim against bankrupt 442 exceptions to claim 442 notice of exceptions 443 assignee's report 444 notice by insolvent debtor 463 petition by insolvent debtor 464 venire for jury 465 final order discharging debtor 465, 469 schedule of insolvent debtor 466 bond by insolvent debtor 46S assignment by insolvent debtor 470 discharge of insolvent debtor 471 order of court fixing term 472 assignee's notice to creditors 472 proof of claim 473 deed by assignee 474 appeal bond by insolvent debtor 478 complaint in bastardy 487 warrant in bastardy 487 bond by father of bastard 48S recognizance in bastardy 490 order of court in bastardy 491 petition for citation in bastardy 495 citation in bastardy 495 order of court on citation 496 notice to sheriff of claim of property 517 entry by judge in trials of right of property 51S notice to plaintiff. 518 affidavit of non-residence 520 notice to non-resident 520 clerk's certificate of mai'i"g 521 656 INDEX. PAGE. FORM— Continued. Of venire in trials of right of property 522 appeal bond in trials of right of property 524 judgment in trials of right of property 525 to contest election 550 answer 552 proof of death 568 petition for letters testamentary 568 record of appointment of administrator 568 relinquishment by widow 569 petition to require executor to give bond 570 record on examination of bonds 570 revoking letters on account of fraud 571 where will is found 572 by reason of insanity 572 removing administrator who has removed 573, 574 petition to require further security 574 record requiring further security 575 inventory by executor or administrator 576 warrant to appraisers 577 oath of appraisers 577 bill of appraisement 578 widow's award 578 relinquishment 579 advertisement of sale of personal property 580 report that assets of estate do not exceed widow's allowance- •• 580 record giving widow personal property 581 adjustment notice 582 record of allowance of claims on adjustment day 582 after adjustment day 582 suggestion of insolvent debtors 583 notice of petition on insolvent claims 584 order of court on insolvent claims 584 petition for leave to sell at private sale 585 record granting leave to sell at private sale 586 for naturalization 562, 563, 564 report of private sale 586 sale bill at public sale 587 order of court for distribution in kind 588 citation to administrator 588 petition for sale' of real estate 589 cross petition by widow 590 answer of guardian ad litem 591 to petition to sell land 592 decree for sale of real estate by administrator . .. 593 warrant to commissioners 595 oath of commissioners 595 INDEX. 657 PAGE. FCxCKs— CbTtrmuew. Of report of commissioners 596 decree approving report 596 notice of sale of real estate 597 report of sale of real estate 597 exceptions to report 598 order overruling exceptions 598 sustaining exceptions 599 administrator's deed 599 bill for account between co-executors 600 refunding bond 601 notice of final settlement 602 order of court making final distribution 602 appeal bond by an administrator 603 record of the presentation f jr probate of the will of a non-resid't.. 604 notice of the issueof a dediuius , 604 affidavit of witnesses for probate of will 605 deditnus to prove will 605 renunciation of widow, etc., of rights given by will 605 clerk's entry of probate of will 606 where bond is waived 607 refusal to accept by perse i named as executor 607 petition for letters with wi 1 annexed 607 bond of executor and adrrinistrator with will annexed 608 oath of same 609 letters testamentary 609 proof of signature of subs:ribing witness 6io clerk's entry appointing administrator to collect 610 bond of administrator to collect 610 oath of administrator to collect 611 letters to administrator to collect 611 dc ho?ns non 611 clerk's entry of order requir-ng surviving partner to give bond.. 612 directing sale uf personal property 613 petition of administrator for citation to surviving partner 613 order declaring estate insolvent 614 notice of final settlement 602, 615 entry by clerk of circuit court in probate of will 6J5 FRAUD, In procuring letters — revocation 20 exhibiting account 33, 34.S Of administrators, estate not liable 50 Administrator to recover goods sold in 65, 66 Property transferred in 66 May be shown to defeat recovery on notes 79 Equity will protect against 107 (]o8 INDliX. PAGE. FRAUD— Coniinued. Proof of, required 129 Will vitiate will 182, 193 In the appointment of guardian 243, 244 Infants liable for 277, 278, 280 As to securities 292, 348 Combination among bidders, is 318 Sale made in fraud of infant 319 Must be proven 481 In elections 542 assignments 460 FRAUDULENT CONVEYANCES, Of deceased persons, how set aside 168 Wills, etc., when 201, 202 May be avoided at law 361 FUNERAL EXPENSES, Payment of, entitles one to letters 13 Chargeable to widow, when 63 Widow's award subject to 89, 92, 94 Charge against estate 100 Implied promise to pay 100 Need not be probated loi Headstone may be considered such loi Contracts with minor for, binding 277 Q. GARNISHEE, When administrator liable as 50 Assignee not liable 449 GENERAL ISSUE, Plea of, admits capacity 73 GESTATION, Period of. 502 GROWING CROPS, To be inventoried and appraised 79 May be sold 79 gathered 79 When they pass to devisee 80 GUARDIANS, Appointment of, given to county courts 4 Courts always open for appointment of 4 Where administrator is 41, 51, 52, 286, 293, 349 May be compelled to settle 283 Claims against deceased — limitalions 109 Of heirs made parties to petition to sell 155 INDEX. 659 PAGE. GU A R DI ANS— Continued. Failure to make parties, error 157 Appearance of, does not confer jurisdiction over wards 163 What is 213 Various kinds of. 214 Who are by nature 214 By nature not entitled to ward's property 214 powers of. 214, 215, 251, 337 must support child, when 215, 217, 287, 346 In chancery 216 origin of. , 216 May file bill against executors 217 As trustees for ward 217, 248 Liabilities of. 263 By statute — definition 218 Testamentary, how constituted 218 powers of 219, 286 to be commissioned 219, 23.S bond of. 219, 225, 235 duties of. 219 must qualify 219 one of two may act 220, 235 right to custody 01 ward 220, 337 Appointment of, by county court 220 May be ordered to pay fees of guardian ad litem 224 Appointment of. 228, 229 Who maybe appointed 230, 233 Duty of, to surrender to successor papers, moneys, etc., of ward... 231 Of estate to one, custody to another 234, 263 A stranger may be appointed 234 No power to act until bond le given 273, 312 Derive power from appointment 238 When appointment void 238 Order of court conclusive upon 238 Bonds, suits on 239 can be maintained after his rtr.KAul i.iily 239 where name of ward incorrectly given .__ 240 Failing to give new bond, may be removed 240 Trustee in equity for ward 04S Bound to manage estate of ward in person 248, 24) Should render account 24.-., 249. 253, 283, 284 If beneficial, his acts will be sustained 249 Petition court in his own name 249 May redeem estate from mortgage 249, 261 Cannot act by attorney 249 release a debt due ward 249, 261 Undertakes to be vigilant...* , 249, 251 660 INDEX. PAGE. GUAR DI ANS— Continued. Powers local 244, 249, 252, 2S6, 337 May control ward 's associatiun s 249 accept deed for ward 250 appear for him in suits 250 maintain action for seduction 250 lease ward's real estate 251 In socage, has custody of lands 251 no such relation in Illinois 251 Not liable on implied covenants 251 To institute proceedings for assignment of dower 251 May change residence of ward 244, 252 Shall manage estate frugally 252 apply income to support of ward 252 demand and sue for estate 253, 258, 261 May take notes in his own name 253, 258 sue in his own name 253 transfer promissory notes 253, 254, 258 sell personal estate of ward 253, 254 Acts of, may be repudiated by ward 253, 281 Estate of, answerable to ward for waste 254 Duty to loan funds of ward 254 To pay interest, when 254, 255, 257 Responsible for loans made without security 254, 255 Allowed reasonable time to make loans 255 When chargeable with compound interest '. 256 robbed 256 May retain sufficient money on hand for current expenses 256 Duty to educate ward 256 apply no more than income to education of ward 257 Depositing money in his own name 257 Not responsible for acts of co-guardian 257 Payment by, to ward 257 Investments in his own name 258 Assuming to act as 258, 337 Bankruptcy of 239, 258 Negligence of. 258, 259 Waste by 258 Cannot bind ward by his contract 258, 28r, 315, 329 Rights of, against estate of ward 258, 259 Liable for costs, when 259 Insure ward's property 262 Not allowed to make gain from ward 264 May pay mortgage on ward's land 261 Courts presume against, when 264 Admissions by, do not bind ward 265 To receive ward's money 267, 268 INDEX. 661 PAGE. GUARDIANS— Continued. Not prejudiced by lapse of time 268 liable on contract of ward 268 Action against, by ward — account.. 269 Settlement with ward 270, 272 Advances by, not a charge on ward's land 270 Election by ward in settlement with 272 Purchase of ward's real estate by 272 Accounts to be verified by affidavit 283, 284 Fees of 283, 285, 286, 289, 29c May submit proof to support account 284 Competency of, as witness 284 When may remove ward to another state 285, 334, 335, 345 Allowed for adverse claim 286 Compromise of claim by 281 Interest adverse toward 281 Entitled to interest, when 286 Not. being father, to be allowed for board 286, 289, 346 Should be allowed for necessary disbursements of ward's money [without consent, 286 Not allowed to break in upon principal 2S6, 287 Should keep wards employed 287 May furnish ward with articles suitable to condition 288 Cannot retract a gratuity to ward 289 Advancements by 289 Attorney's fees paid by 289 Not allowed to charge costs of controversy caused by his neglect, 289 Who is step-father, not entitled to pay for maintaining wards, 289, 290 Not entitled to fees whejre he uses fund 289, 290 Commissions of 283,285, 286, 289, 290, 346 not forfeited by failure to account 290 Accounts of, may be opened 290, 291 Form of account of. 292, 293 Sale of real estate by 298 Deed by 306 Shall account for money received on sale of real estate 308 Nonresident, sales by 308 Proceedings by, for sale of ward's lands not adverse to him 309 Power of, to sell land a naked power 310 No power to sell ward's real estate without order 310, 311 Must apply for sale, on order of court 310 Where to apply for sale of real estate 310, 312 May bind himself, but not ward, by covenants 315, 329 Power to make deed, ceases after once having been exercised 315 Married woman who is, may convey alone 316 Irregularity by, does not vitiate sale 317 Petition by one of two 318 662 INDEX. PAGE GUARDIANS— Continued. May mortgage ward's land 323 Non-resident, powers in Illinois 332 sale of land by 332 One holding trust relation to infant, required to account 337 Resignation of. 339 Removal of... 342 Appointment of successor 344 Causes for removal of. 345, 346 Insolvency of 346 When removed to turn over assets 346 No suit can be maintained against, until removal 349 Death of, terminates trust 350 Citation to, necessary to charge on bond 350 Cannot purchase at his own sale 359 May contract with ward after the relation ceases 368 Answer by — form 591 Public, to be appointed by governor 226 GUARDIAN AD LITEM, In sales of land to pay debts 162 To appearand answer for minors 162, 220 Failure to appoint, error 162, 220, 280 Answer of. 162 form 591 cannot give jurisdiction 162, 163 Appointment of, something more than a form 163, 220 Must appearand defend 163, 221 Answer by, may be set aside 217 Definition of. 220 Appointment of. 220 Power of, confined to the suit 220 None appointed in criminal cases 220 Not liable for costs 220 When appointed 220, 221 Order appointing, must name infants 221 Must be appointed for infants in petition to sell land 221, 222 None to be appointed in applications to sell real estate 222 Can waive no rights of infant 222, 265 Must submit to court questions involving rigiits of infant 222 Cannot withdraw plea 222 Court to require answer from 222 Must be notified of taking of evidence 223 Court may appoint without motion 223, 250 Appointment presumed 223 of clerk of court as 224 master in chancery as 224 Need not be appointed for female over eighteen 224 INDEX. 663 PAGE. GUARDIAN AD UTEM— Continued. Appointment of, as evidence of infancy 224 May employ counsel 224 Fees of , , 224 To be reimbursed for outlays 224 In suits for debt of ancestor 274 proceedings to sell infant's real estate 309 suits against lunatics 414 GUARDIAN AND WARD, No suit at law can be maintained between 349 May contract after relation ceases 368 See "Guardian," "Infant." H. HANDWRITING, To be proven joc Of attesting witness, when proven 188 HEIRS, Administrator cannot bind 51 To have notice of issue of execution 68 Title to land vests in, on death of owner 69 Policy payable to 71 Cannot be called on to account for rents 74 May have action against widow for waste 74 compel redemption of lands 75^ 148 Maintain suit on desperate claims 77 Contract for purchase of land descends to 99 May not object to partnership debts 99 Suits against, where there is no administration 106 May defend against claims 107 Judgment in probate, not conclusive on 113. 171, 275 Must have notice of final settlement 123, 149, 150 Entitled to distribution of surplus money 124, 125, 144 Not bound by allowance of claim 131 When they may sue a stranger 133 be required to refund 135 May receive from ancestor in full 142 Cannot recover estate of ancestor 142 Advancements to 143 by ancestor charged 143 Distribution to, may be delayed 144 At law, definition 146 effect of a devise to 146 Wife not Included in devise to 146 Dowress cannot be 146 Heirs of heirs included in 147 Interest in lands not defeated by naked trust 149 664 INDEX. PAGE. HEIRS— Continued. Owing estate amount of distributive share I49 Not affected by order of distribution of which they have no notice... 149 Made parties to petition to sell I55 What they may show in defense 169 Concluded by judgment on claim, when 171 Should contest in name of administrator 171 No privity between, and administrator 171 May contest will 192 Take title to real estate subject to debts of ancestor 153, 202 Of infant may disaffirm acts 266 Liability of, for debt of ancestor 273, 274, 275 Not liable for debts of ancestor when personal estate was sufficient.. 275 Decree against, must be joint 276 Extent of liability for debt of ancestor 276 Disability no defense, when 276 By adoption, rights of. 375. 37^ HOMESTEAD, When it may be sold 165, 166 Real estate being, willexplain delay ■'•.•• 172 Right of infant to 269 Abandonment of, by widow does not prejudice rights of child 270 Minors cannot abandon 269, 270 Sale of infants', will be set aside 270 Report assigning — form 296 Decree approving assignment of— form 296 HOSPITAL FOR THE INSANE, Application to 39S Who notadmitted to 4oo Temporary commitment to 400 Discharge from 402 County 403 HUSBAND, Right of, to administer 9. ^3 When not to be appointed administrator n If suitable, to be appointed conservator 408 HUSBAND AND WIFE, Rights of, in each other's estate i47, 148 Neither can disinherit the other i47. 148 Effect of renunciation by I47. 148 HYPOCHONDRIA, Not insanity 4io INDEX^ 665 PAGE. I. IDIOT, Conservator to be appointed for 381 Contracts of, void ,85 voidable....- ■jSs Swindling an 385 Restoration to reason 389 Not allowed in hospital for insane 400 ILLEGITIMATE CHILDREN, Not considered next of kin 12 included in the term children 142 Heirs to mother and maternal ancestor 144 May transmit to heirs 145 Dying without issue, estate vests in husband or wife 145 Legitimatized 145 Rights of, at common law •.. 146 under laws of Illinois 146 See " Bastard," " Bastardy." IMPRISONMENT, Courts always open to hear applications for discharge from 4 County court may punish by 6 Of executor or administrator on failure to pay 132 Discharge from 132 What necessary Defore 132 Order of, acts only upon the person of administrator 132, 133 Duration of 133 Of witness on failure to attend court 186 Appeal from order of. 209 Cannot be inflicted on a cliild only guilty of vagrancy 278 Release of debtor from 463, 484 For debt, abolished 481 does not satisfy debt 481 Of father of bastard 493, 494, 497, 499 INFANT. Estate of deceased, maybe distributed 142 Suits by, how prosecuted 217, 218 Wards of court 218, 223, 279 May file bill against guardian 218 Heirs, must be brought in by notice, or they will not be bound by [decree 220, 221 Can only appearand defend a suit by guardian 221, 267 Judgment by default against, erroneous 222, 264 Jurisdiction over,hot lost for want of answer 223 Female, of age at eighteen 224, 266 Guardian ad litem may employ counsel for 224 Appointment of guardian for 229 666 INDEX. PAGE. T NFANT— Conlhiued. Custody of, when given to mother 229, 230 Over fourteen, may nominate guardian 230, 231, 232 Residence must be in county 230, 232 Interest and wishes of, to be consulted 230 Domicile of 244, 261 May prosecute suit by next friend 225, 250 To recover for services in name of parent or guardian 250 Seduction of, action by whom 250, 269 Residence of, may be changed by guardian 252, 286 May repudiate change of property 253 Money of, to be loaned 254 To be educated by guardian 256, 257, 286 Care of estate of. 256 Cannot consent to improper use of money 257, 348 Not liable for contract of guardian 258 Unable to take care of himself. » 264 Owes obedience to guardian 264 Negligence not imputed to 265,279, 282 Cannot bring advancement into hotchpot 265 Acts of, voidable only 265, 266 may be affirmed or disaffirmed 265 Conveyances by, voidable - 265 How, may avoid statute of limitations 266 Heirs of, may disaffirm acts 266, 282 Deed of, how ratifiid 266 Not bound by bond 266 Liable for necessaries 266 May take title by deed 266 Release by, void 267 Husband of female, no power to l)iiid 267 Decree against, absolute 267 Grantees of, protected 267 May prosecute writ of error by next friend 267 Rights of, cannot be waived by next friend or attorney 267 May maintain trover by next friend 267 Not entitled to receive money 267 Evidence against in scire facias 268 May maintain action for slander 268 Only can rely on plea of infancy- 268 Action by, for assault and buttery 268 Contracts by 265, 266, 276, 277 Emancipation of 26S Action by, against third parties dealing with guardian 269 Female cannot consent to carnal intercourse 269 abortion 269 Has no action against guardian until after settlement 269 INDEX 667 INFANT— roArTwit^^: Remedy against j^uardian oy Atrti^vi of account 269 1 iuinestead rijjlits of 269, 270 S -It lenient of, with .<;uardian looked upon with suspicion 270 Advances by j^uardian not a charge on land of 270 Not estopped 270,274, 279, 316 Bill to enforce estoppel, not allowed 274 When estopped in equity 272, 274, 318 May elect to receive profits, or charge interest 272 Not bound by arbitration of guardian 272 purchase by guardian 272 Must place guardian in statu quo to avoid a contract with him 272 Male, over seventeen, and female, over fourteen, may contract [marriage, 273 Liability for debt of ancestor 273, 274 No lien lies against 276 May recover against an employer 276 One deals with, at his peril 276 Note of infant for necessaries 277 Is liable for his torts 277, 278 fraud 280 Not liable for tort of guardian 278 Under ten, not guilty of crime 278 Over fourteen, may be guilty of rape 278 Destitute of parental care, no cause for imprisonment 278 On death of guardian, may compel settlement 286 Claims against, how verified 287, 288 Expenses of, to be kept within income 288 Principal of estate of, when encroached upon 287, 288 What are necessaries for 289 Board of 290, 346 Gratuity to, from guardian 290 Atiorney's fees for 282, 290, 295 Step-father not obliged to support 290 M;iy open account of guardian 291, 292 Receipt by, when not conclusive 292, 355 Receiving money from guardian after maturity — presumption 292 To refund, when 295 Sile of real estate of 298 Pioceedings for sale of real estate not adverse 309 Not concluded by report of sale by guardian 315 When title of, will inure to purchaser 316 May avoid conveyance by guardian to one in his interest 316 WHien estopped from claiming land 318 Real estate ot, subject to dower 318 May confirm void sale 319 May file original bill to impeach a decree 319 668 INDEX. PAGE. lNFAT 4°? Committal in 399 Superintendent to report 405 Costs in 400 Evidence of 408 Test of. 409, 418 Presumption of law against 409, 41^ In criminal prosecutions 419, 420, 42 No defense in actions for torts < 421, 422 INSOLVENT DEBTORS, Courts always open to hear applica'iion for discharge of. 4 Administrator being 133 Wholly under jurisdiction of county court 432 Proceedings for discharge of 463 How released 463, 47^ Shall give notice 463 Petition by, for discharge 464 To be taken before the court 464 Issue on petition of 465 Schedule of. 466 Bond by 468, 483 Assignment by 4^9 Discharge of 47 r, 475 effect of 475 Appeal by 477, 479 482, 483 Not required to appear in person 4S2, 483 INSOLVENT ESTATES, When assets do not exceed widow's allowance 63 To be entered of record 115 INSTRUCTIONS OF COURT, In bastardy proceedings 501, 502 INTEREST, When administrator liable for 52, 53 Probate of, on claims not due 105 \ ^ INDEX. 660 PAGR. INTE R EST— Continued. On probated claim 107, in, 112 To administrator 125 Executor to pay 125 When may be chari^ed in account 127 administrator must pay 130 Ten per cent, to be charged, when 130 On ward's money, wlien guardian to pay 254, 256, 257 to be paid annually 256 Compound, when to be charged guardian 256 To keep trust funds separate 256 When applied to ward's education.. 257 charged to guardian 26r, 284 On money in guardian's hands 2S6 To guardian, when payable 2S7 When chargeable to conservators 4t3 INTESTACY, Presumed 139 INTESTATE ESTATE, Of testator to be administered by executor 47 Property devised to " heirs at law " i.\(: How distributed 141 INVENTORY, Of real and personal property 59 When to be filed 59 When notes and accounts described 59 Not to include property out of the state 6c Co-partnership as'^ets.. 60 Additonal 60 to be filed after discharge 60 Protection to executor or admmistrator 60 As evidence 61, 62 All property should be inventoried 61 Without, two years statute does not run 61, 102, T09 Not conclusive 62 Growing crops 79 To be made by surviving partner S3 Of guardian, when filed 245, 246 what to contain 245 form of 245. 24*) order approving 246 should embrace debt due from guardian 247 conservator 38 -^ Form of conservator's 384 Of assignee 4.i'J want of, not to affect assignment 312 42 670 INDEX. FACE. I N VENTO R Y— Continued. Of assignee, additional 312 form of 438 administrator — form 476 Investment of ward's funds 262 J". JUDGE OF THE COUNTY COURT, To examine bonds at January and July terms 31 cause record to be made 31 Interested — chano^e of venue 113, 114 A witness to will 187 Discretion of, in appointments 242, 243 Verbal directions of 45, 259 Order of, on petition in insanity 395 No authority to discharge debtor 482 To order citation in bastardy 495, 497 Notice to, of claim to property 517 To entertain jurisdiction of claims to property levied upon.. .5 17, 526 [UDGMENT, Void, when against a void administrator 17 For costs against one fraudulently obtaining letters 20 In suits upon administrator's bonds 43 Must be joint and not several 67 Collection of, not delayed by death of plaintiff. 67 Lien not defeated by death of plaintiff. 68 defendant 68 Need not be revived 68 For value of property removed 78 On claim, when a nullity 98 When a claim against an estate 98 On claim presented after two years loi, 102 Right to, not barred by settlement of the estate 103 As evidence in support of cUiim 105 From another state 105, 422 Against administrator in another state 105, 203 For set-off. 105 Revival of, against administrator 106 On claim is general 107 not a lien m, 114 Where not a lien, collected as other chims iii Allowance of claim is m, 113 no particular form iii Revival of, against administrator — form iii Against estate, /r/wa /at 2V only 113, 171, 275 equitable lien 113 Disallowing claim, conclusive iti On claims, being general • 118 INDKX. 671 PAGE. J U D G M E NT— Continued. On claims, conclusive between creditor and administrator 171 not conclusive on heir 171 when 171 Against minors where no guard'n ad litem is appointed, erroneous- 221 On bastardy bond 494, 500, 50S, 509 In bastardy, when a bar 500 trials of right of property 523, 525 contested elections 544> 545 as evidence 545 Form of, on claim 582 See "Decree." JUDICIAL ACT, Of county court 4 Granting adminislration is a 16 Admitting will to probate 189 Confirming sale of real estate is 3'7 Admission to citizenship is 560 JURLSDICTION, Court having, acts not void 18. 3^9 What gives, to county court 9, ^9 issue attachment 132 Of circuit court over claims 106 In proceedings to sell land 156 Court having, its adjudications binding 157. 176 Of persons, by summons 158 Want of, where parties are not legally notified 159 Failure to obtain, decree void I59 Of subject matter and parties, effect of. i59 Court of chancery having, may order sale of lands 169 having, effect of reversal of decree 176 Of >vard not obtained by service on guardian 221 infants, not I )St for want of answer 223 county court over minors 22S, 230 to order sale of ward's land 300 circuit court in case of non-resident guardians 308 Court acting within, presumption 31^ Must appear in application or order 311 Sale without, void 311 In case of defective notice 311 no notice 311 Application to sell must be made where there is 312 Courts have none to order sale of land in another state 312 Want of, maybe shown at any stage 312 In proceedings to sell ward's land— subject matter 312 for the adoption of children 371 appointment of conservator 3S2 sale of lunatic's real estate 386 672 INDEX. .•AGE. JURISDICTION— Continued. In proceedings in insanity 349, 409 assignments 429, 432, 435 Of insolvency proceedings 463, 482 trials of right of property 521 In naturalization of foreigners 557 JURY, May be demanded on trial of claims 98 had on appeal from probate of will 187 contest of will in equity .' 192 In cases of lunacy, etc 381, 390 insanity 397, 417 Necessary before declaring one insane 403 In trials of the right of property 522, 527 JUST AND TRUE ACCOUNT, To be made by administrator 155 IKI. KING OF ENGLAND, Power over estates of deceased persons 8 of, conceded to clergy 8 Xi. LACHES, Not imputable to an infant 265, 279 LAPSE OF TIME, In petition to sell real estate: 172 May be explained 172 Will not prevent report of sale and confirmation 315 LARCENY, Of will 185 LEASE, By executor 198 Of ward's lands, who may make 214, 251, 281 valid, unless disapproved 251 LEGACIES, Payment of, before debts, devastavit 32 May be garnisheed 50 To deceased, payable to administrator 71 Payment of, when to be made 133 To be equalized in case of renunciation 149 When chargeable on real estate 201 Not payable under ancillary administration 204 L.FGAL REPRESENTATIVES, Policy payable to 71 Meaning of 71 INDEX. 673 PAGE. LEGATEES, May defend against claims 107 To give bond 133, 134 in case of life estate 134 When they must refund 135 Notice to 135 Refusing to contribute 135 Demand on 135 Action of, against executor 136 LETTERS OF ADMINISTRATION. Courts always open to grant 4 Wlien revoked, acts done under not void 17 Not void when will discovered 17, 20 Revoked for fraud in obtaining 20 when will produced 20 administrator becomes lunatic 21 fails to give new bond or counter [security, 29 To be filed, in case of death of plaintiff. 67 When to be produced 73 Claims must be exhibited within two years from date of. 117 With the will annexed 191 On nuncupative wills 197 Authentication of- 206 LfiTTERS OF GUARDIANSHIP, To be issued to testamentary guardian 219, 235 Without, guardian no power 237 When need not issue 23S Steps to procure 240 Form of 240, 241 Create a trust • • 230 LETTERS TESTAMENTARY, Courts always open to grant 4 To be revoked, when will set aside 20 When to be produced 73 To issue upon probate of will 191, 192 On nuncupative wills 197 Authentication of. 206 Petition for 5^7 LICENSE, To marry, how issued 273 LIEN, Debts of deceased, on property 65 Of judgment, not defeated by death 68 Meclianic's, barred after six months no 674 INDEX. PAGE. LIEN — Conlhiued. Judgment on claim, is not in, 113 equitable 113 Not aflfected by death ng Filing of creditor's bill, gives 119 Attorney cannot have, on assets 126 Statute reserves, on real estate 154 May be lost by laches 154 To be adjusted in proceedings to sell 162 Does not lie against infant 271, 276 Of judgment in bastardy 497 LIMITATION, In appointment of administrator 23 Duty of administrator to urge as defense 34, 107 Two years, as to claims loi occurring after death, does not run 103 if no inventory is filed, does not run 109 where will is discovered 109 notpresumed 109 When it begins to run, it continues 109 When running, commences 109 as towards 109, 239 Death of debtor does not arrest 109, no Part payment arrests no When plead, cuts off, etc no Need not be specially pleaded no Not arrested for filing claim no Statute of, in claims by wards no, 239, 285 Claim twenty-seven years old presumed paid no Effect on, of acknowledgment by administrator in Bars claim on distributees 135 No statute of, concerning sale of real estate 172 Avoided where real estate is homestead 172 In contest of will 192 settlements by guardians 292 Of bastardy actions 498 LOANS, By guardians, security 254, 255, 256, 295 conservator 386 LUNACY, Of administrator, justifies removal 21 Jurisdiction in cases of. 381 Proceedings in 382, 304 must be had in court 407 INDEX. 675 PAGE. LUNATIC, Conservators of. 381 Contracts of, void and voidable 385, 415, 416, 417, 418, 419 Swindling a 3°5 Restoration of 3'^9. 402 Who is a pauper 402 Petition to have declared 394 Notice to 407 To be allowed luxuries 412 Guardian ad litem for 4i4 Ejectment may be brought in name of 414 Liability for necessaries 4^6 Not bound on contract of suretyship 418 Liable for torts 421, 422 Suits against 425 MANDAMUS, Remedy by, not abridged by statute 535 MARRIAGE, Of testator — effect on will 196 Males of seventeen may contract 273 Females of fourteen may concract 273 Parties to, may be examined under oath 273 Of female ward, terminates guardianship 347 parents of bastard 14^. 49'*^ mother of bastard no bar to bastardy proceedings 501 MARRIED WOMAN, May execute will 182 be appointed guardian 233 Statute of limitations runs against 266 Husband of infant, no power to bind 267 Who is guardian, may execute deed 316 MASTER IN CHANCERY, May be appointed guardian ad litem 227 MAYOR OF CITY, Contest of election of 553 MENTAL CAPACITY, Necessary to make a will 1S2, 183, 192, 193 responsibility for crime 419, 420, 421 MINOR, Appointed administrator, to be removed 21 Guardian ad litem appointed for 162 To appear by guardian 163 Nothing to be taken against 164, 280, 282 Domicile of. ; •• •• 261 See " Heir, Infant 676 INDEX. PAGE. MISTAKE, Payment by, recovered back 75, 120 In account of guardian, how rectified 284 may be shown 285 Order dismissing proceeding entered by 317 MONUMENT, To deceased, not allowed loi, 131 MORTGAGE, Redemption from, by administrator 34, 48, 72 Administrator cannot, real estate 49 In sales of real estate 161 By executor, when 198 Foreclosure of mortgage in county court 199 strict, not allowed 199, 330 Not in fee i99 Release of, by foreign administrator 204 Guardian may redeem from 249 Of ward's lands by guardian 261,323, 330 Foreclosure of — form 325 Decree of foreclosure — form 327 Of ward's real estate purely statutory 329 lands of idiots, etc 386 Petition for leave to, lands of idiot, etc 386 See "Foreclosure." MORTGAGED LANDS, Of deceased, duty to redeem 36, 50 To be redeemed out of personal estate 75, 148 MOTIIF R. When entitled to custody of child 214, 229, 230 Of bastard, entitled to custody 214 Given custody of child may dispose of by will 220 Entitled to be appointed guardian 233 Of bastard — complaint 486, 487 when to pay costs 491 to have custody of child 498 alone may enter complaint 499 may compromise 499, 507 being infant 499 non-resident 499 marrying, no bar 501 not entitled to change of venue 501 next friend of 501 character may be shown 503 INDEX. 677 PAGF. IsT. NATURALIZATION OF FOREIGNERS, Who are subjects of this law 554. 557. 559 Process of. 554. 555 Laws for 555 Power to pass laws for 557 Jurisdiction in 557 Power judicial 5oo Right of a woman to 562 NECESSARIES, When father liable for 215, 287 infant liable for 266 What are, for an infant 289 Guardian has the right to judge what are 289 For lunatic 4i6, 419 NEGLIGENCE, Of guardian 258, 259, 260 Cannot be imputed to a young child 265 Controversy caused by neglect of guardian not chargeable to ward.. 290 NEXT FRIEND, Infant may sue by - 225, 250 Bond for costs by 226 NEXT OF KIN, Right of, to administer 9 Who are i°' ^4i Renunciation of right of, to administer 12 Why administration granted to ^^ Preference over, of residuary legatee 12 Illegitimates not considered • ^^ May plead statute of limitations against administrator's claim 114 To take estate by descent ^40 NON-RESIDENT, Not to be appointed administrator, and why 9> 12 Estates of, where to be administered 18 On being appointed administrator, to be removed 21 Conservator— suits by 39^ sales of land by.. 392 Lunatic 402 NON-RESIDENT GUARDIAN, Sale of real estate by 3o8 To make deeds 309 Power in Illinois 332 Transfer of estate by 332. 337 Proceedings by, to transfer • 333 Evidence of appointment of. 334. 337 678 INDEX. PAGE. NOTICE, To be given to administrators about to remove 21 before execution 68 In case of compounding claims 77 sale of personal property 78 Of adjustment of claims 07 Judgment on claim, without, a nullity 98 To administrator of filmg of claims 104 Must be given of final settlement 123, 129, 149 To owners of unclaimed estate 136 By publication, in case of sale of real estate 159, 160, 313 Form and contents of. 160 When sufiicient 160, 314 Decree showing 160 Of sale of real estate, improper 175 To heirs of nuncupative will 197 infants essential to bind them by decree 221 Defective, will not bind infants 222 To relations of minor in appointment of guardian 229, 235 Possession is, of what 266 Of application to sell infant's real estate 300, 313 guardian's sale of real estate — form 304 Defective, jurisdiction saved 311 To guardian of petition to remove 342 Must be given guardian, before removal 346 Of trusts 362, 363 To parents of child to be adopted 372 Of application to sell real estate of lunatic 387 for removal of conservator 390 p tition by non-resident conservator 391 assignment for benefit of creditors 430, 439 exceptions 4^^ application for discharge of debtor 463 claim of property 517, 518, 526 By publication 519^ 52c To be mailed to plaintiff 520 Of adjustment — form , 581 petition on insolvent claims — form 584 sale of real estate — form 597 final settlement — form 602 issue of commission — form 604 NUNCUPATIVE WILLS, Good, for what r96, 197 How made 196, 197 proven 197 To be recorded. 197 INDEX. 679 PAGE. NUNCUPATIVE "^llA.S—CoiiHfnied. Letters on, when to issue 197 Notice to heirs 197 Evidence must show compliance with statute 197, 198 At common law 197 Conveys personal property only 196, 19S O. OATH, Of administrator 15 executor 15 To be administered by clerk .' 15 Of public administrator 18 appraisers 6r, 577 executor or administrator to bill of sale 80, 587 claimant to claims presented 105 commissioners — form 596 ORDER OF COURT, To be obtained before encroaching upon principal of ward 288 Approving account of guardian as evidence 291, 305 Approving sale of real estate by guardian 306 For sale of ward's real estate must be strictly complied with 310 Not having jurisdiction, void „ 310 Are final against minors, subject to writs of error 319 Confirming sale under mortgage 329 Accepting guardian's resignation 340 Removing guardian 344 should state cause 347 Transferring assets to account of guardian not necessary 350 Removing conservator 391 On petition in insanity 395 Discharging debtor from arrest 465 In bastardy 491 trials of right of property 525 Appointing administrator — form 568 On examination of bonds — form 570 Revoking letters for fraud — form 571 where will is found — form 572 administrator is insane — form 572 removes — form 573, 574 Requiring further security — form 575 Giving to widow personal property — form 581 Allowing claims at adjustment term — form 582 after the adjustment term — form 582 On insolvent claims — form 584 Granting leave to sell at private sale— form 586 Directing distribution in kind— form 588 680 IN DEX. PACK. ORDER OF COURT— Con/mne,i. Overruling exceptions and approving sale— form 598' Sustaining exceptions — form 599' Making final distribution 602 Upon presentation of will of non-resident 604 ORDER OF DISTRIBUTION, After, statute of limitations runs 42 Necessary, to make garnishment possible SO entitle heirs to sue a stranger i33 Conclusive on distributees 126, 150 guardian 238 Of assignee's estate .••-431, 443 ORPHAN, Defined 233 PARENTS, Surviving, to take two shares 140 of only child, takes the whole estate 142 Natural guardian of child 214 Right of, to custody of child 214 Misconduct of ^^4 Right of, to control child's estate 214 Obligation of, to support child 215 Separation of, custody of children 215 Own the clothing of child 216 Residing apart, court may give custody of children to another..229, 230 May maintain action for seduction 250 release homestead right of child 269 Consent to marriage of child 273 Of child to be adopted 37i Adopted, rights as to child 37^ Natural, lose right to control adopted child 377 Of bastard marrying 49^ See " Husband and Wife." PARTIES, To petition to sell land by administrator I55. ^57 Unknown ^55 Must be before the court ^^i To petition, to sell land by guardian 309. 31° PARTITION SUITS, In, a decree may be made to pay debts 162 PARTNERSHIP, Administrator of deceased partner may not continue business of- 48 Interest in, how inventoried 60 Terminated by death of partner 81 INDEX. 681 PACK. PARTNERSH I V— Continued. Continuance of, beyond death f^i must be authorized in will 82 Articles of, may provide for continuance 82 Assets of 82 Statutory 83 Proceedings on dissohiMon 83 Effects of, to be first applied to pay joint debts 85 Account of, as at time of death 85 When to be settled 85 Real estate of 87 Debts may be probated, when 99 subject to individual debts 99 what shown before allowance 99 to allowance of, heirs may not object 99 preferred to interest on individual debts 99 joint and several 100 allowance of, evidence of exhaustion of partnership assets.. 100 Effects, assignment of 445. 460 Insanity of a partner 426 PAUPERS, Lunatic, who is 402 Right of, to vote 54o, 541 PAYMENT, To acting administrator 75 Of claims to be made in order of classification 117 what law governs 118 before allowance 119 For land sold to pay debts 171- 172 Of money in bastardy 494 PENALTY, For not filing bill for probate 45 removing property of estate 77 failing to set off award 89 Recoverable against an estate loi For selling land irregularly I73 withholding will ^85 changing will ^85 issuing marriage license to minor 273 receiving person to insane hospital illegally 403 taking false oath 480 being father of bastard 49i. 5oo PERJURY, In naturalization proceedings 561 682 INDEX. PAGE. PERMANENT ABODE, What is 539 PERPETUITY, Not permitted 184 PERSONAL ESTATE, Of intestate, vests in administrator 48, 70, 73 To be inventoried 59 appraised 61 Primarily liable for debts 65, 75, 154 Will may relieve, and charge other 65 Administrator to collect 65 Transferred in fraud 66 What is *o Legacy is ' Life insurance, when 71 Certificate of sale is not 71 Mesne profits, when 71 Nursery stock is not 71 Money due from guardian of deceased 71 for causing death of deceased 72 Claim occupied by deceased, not 72 Situated in another state 72 Foreign debts 72 Rails, when 72 Liable for payment of mortgages 75 Not to be removed from state 77 Sale of 78 Growing crops 79 Liable for payment of taxes loi Must pass through the hands of an administrator 142 Advanced to heir 143 Natural and primary fund for payment of debts 148 Domicile of 150 Averment in petition, in relation to 156 In cases of ancillary administration 170 Of ward under control of guardian 253 may be sold by guardian 253 not be changed to realty 253 ancestors must be insufficient or heirs cannot be charged 275 PETITION, When security desires to be released 28, 576 conceives himself in danger 29 For sale of real estate by administrator 155 appoinljment of guardian 229 sale of ward's land 299 by one of two guardians 318 INDEX. 683 PAGE. PETITION— Continued. For leave to mortgage ward's land 323 foreclosure of mortgage 325 removal of ward's property 335 resignation of guardian 339 removal of guardian 342 adoption of children 371 appointment of conservator 3S2 leave to mortgage lunatic's real estate 386 sell lunatic's real estate 387 By lunatic, etc., for removal of conservator 389 To have person declared lunatic 394 By insolvent debtor for discharge 464 On insolvent claims 583 For leave to sell at private sale. , 585 letters testamentary 567 To require better bond 570, 574 executor to give bond 570 For sale of real estate 586 Cross, by widow 590 PETITION FOR LEAVE TO SELL REAL ESTATE, To be filed by executor or administrator, when 155 Parties to 155 Contents of. 155 Form 589 Verified by affidavit 156 Must contain proper averments 156 Filing of, gives jurisdiction 156 Averments in relation to debts 157 Description of land 158 To be docketed 161 May be continued 162 In partition suits 162 Hearing of. 164 Court no power to interpret will in 167 Power of court under 167 Not a chancery proceeding 167 Is a proceeding in rein 167 No power to remove incumbrances 168 By guardian 300, 310 averments in 310 PHYSICIAN'S BILL, Y ox post tiiortem examination 109 last illness, claim of third class 117 PLAT, Of land to be made 166 684 INDEX. PLEADING, In suits on administrators' bonds.., 33, 38 Statute of limitation to be, specially 109 Plene ad>nmistravit, burden of proof. 112 when not good plea -. 113 Claim barred by statute may be plead 113 General issue admits capacity 207 Character in which plaintiff sues, must be raised by special plea.. 207 Rules of, in cases where foreign administrator sues 207 Of infancy, not dilatory 268 In suit against heir 274 inequity 292 Declaration on guardian's bond, must show appointment of [successor, 350 Averments in suits on guardian's bond 350 In bastardy proceedings 499 trials of right of property 522 contested elections 335, 336, 337 PLENE ADMINISTRAVIT, In plea of, burden of proof. 112 When not a good plea 113 POLICY, Of life insurance, personal estate •;! POLL LISTS, As evidence in contested elections 542 POLL TAX, Payment of, does not confer the right to vote 539 POSTHUMOUS CHILDREN, Rights of, as heirs 146 Title vests in 146 Decree against, void 146, 147 Not bound 149, 158 PRACTICE, In suits by administrator , 74 settlement of partnerships 85 setting off widow's award 92 On trial of claims 104, iii, 112 change of venue 113 in favor of administrator 114 In proceedings to sell land of decedent 161 contest will 193 sell land of ward 302 lunatic 387 bastardy proceedings 498, 499, 5oo, 501, 502, 503, 504, 505, 506 trials of right of property 522, 526, 527, 528, 529, 530 contested elections 535, 536, 537, 538, 539, 540, 541, 542, 543 INDEX. 685 PAGE. PREFERRED CLAIMS, Expenses of caring for estate of non-resident 19 Among claimants of same class — 119 Debts due school fund 118 Money in the hands of guardian 118 Do not embrace all trusts 118, 119 Judgment creditor, without lien, not 119 having execution, is , 119 PREFERENCE, In granting letters 13 PRESUMPTION, Of life cases, when 14 When judgment on claim is general 109 Of payment not destroyed by act of administrator in After final settlement 128 01 intestacy I39 As to children born in wedlock 142 In relation to advancements I43 Of law in collateral proceedings 161 May be rebutted 161 Of the courts in proceedings to sell 167 appointment of guardian ad litem 223 That special bond was given 238 Against guardian 264 Of acceptance of deed by infant 266 emancipation of infant 268 As to settlements between guardian and ward 270 guardian's accounts 292 When ward after maturity receives money from guardian 292 Where court has jurisdiction 311 In proceedings to sell ward's real estate 312 Of sanity 409, 4io, 411, 418, 419, 420, 423 insanity 4ii, 425 law as to electors 539 PRIVATE SALES, Of personal property 78 PRIVITY' OF CONTRACT, None exists between administ'r de bonis non and predecessor.. .23, 75 and heirs 171 foreign administrator 206 PRORATE, Jurisdiction, given to county courts 3 Matters, what are 4 cognizable at law terms 4 Terms of county courts 4 Equity jurisdiction in • ^ 43 686 INDEX. PAGE. PROBATE— Continued. Court of equity will not admit will to 5 Of will, testator cannot waive i86 in circuit court, when 187 what evidence admissible 188 executed out of the state 194 Bond not avoided for slight defects 240 PROBATE COURTS, Peculiar office to admit claims 5 Constituted 7 When acts are ministerial 16, 7 No power to render a money judgment. 135 Declared legal 231 See "County Court." PROBATE OF WILL, On, letters to be revoked 20 Place of 1S5 Witnesses to attend 186 Cannot be waived in will 186 Appeals from • 190 See "Wills." PROMISSORY NOTE, May be assigned by administrator 53 Executed as a gift 108 Of infant, voidable 277 PROOF OF DEATH, To be made before letters are granted 9, 13, 14 If untrue, grant of letters void 14 From reputation 14 Made upon information 14 Passing upon, a judicial act 16 Form of- 568 PUBLIC ADMINISTRATOR, When administration shall be granted to 9 application must De made 13 Only when no relative or creditor 13 Appointed by the Governor 18 Oath of 18 When he may take administration 18 Bond of X, 18 What should appear before estate is committed to 18 Duties of 18 Administers by virtue of letters 19 To give notice of unclaimed estate 136 pay into the treasury of county 137 INDEX. 687 PAGE, PUBLIC GUARDIAN, To be appointed by the Governor 226 take oath 226 give bond 227 Duties of 227 PUBLIC POLICY, Requires stability in all sales 319, 320 PUBLICATION, See " Notice." PURCHASER, From administrator at private sale in good faith 79 At administrator's sale, not prejudiced by reversal of decree 176 only bound to know the court had juris- [diction, 176 Conveyance may be made to another 177 Where he refuses to consummate 177 From executor with power 179 At guardian's sale, must tender payment 314 not bound to see to application of proceeds of.. 318 Not bound to look beyond decree 319 Of reversion, must pay full price 365 Q,. QUO WARRANTO, Remedy of, not abridged by statute 535, 549 REAL ESTATE, Administrator's power over 49 may take on debts 52 To be inventoried 59 Certificate of sale is 71 Nursery stock 71 Partly paid for, goes to heirs 72 Surplus money on sale of 72 Rails, when 72 Of partnership 87 Taken by administrator 128 Advanced to heir 143 Title to, vests in posthumous child 146 When liable for payment of debts 154, 155 Descends to heir burdened 154 Will not be sold to pay debts barred 170 Of ward, when court will refuse sale in partition 217 cannot be changed to personalty 253 waste of, guardian liable 254 Purchased with ward's money 264, 369 688 INDEX. PAGE. RECEIVER, To be appointed of partnership 84 Powers and duties of ^4 RECORD, Of appoinment of adm'r must show next of kin to have waived.. 17 Reasons for removal of administrator to appear of 22 Bonds to be spread upon 26 Of examination of bonds to be made 31 Must show petition filed, or decree will be reversed 156 that the court heard proof. 163, 164 Evidence to appear in 163, 222 Of appointment of guardian — form 241, 24? naturalization, may not be contradicted 561 be e.xplained 561 See " Order of Court." REFUNDING BOND, When to be given i33. i34. 15° Liability under such i34 In case of life estate in personalty i34 Action on, to pay debts i35 Form of 601 REGISTRATION LAWS, Constitutionality of 54i RELEASE OF SECURITIES, Petition for 28 Execution and approval of new bond, effects 29, 30 REMOVAL, Of executor or administrator, on failure, etc 29, 32 administration de bonis no7i to be [granted, 30 property from the state 77, 333> 334, 335 guardians 342 must be for good reasons 345 by petition 345 Petition for, of guardian should set forth facts 345 Causes for, of guardian 345, 34^ Of guardian, not without notice 346 by majority of ward 347 death of ward 347 marriage of female ward 347 on failure to give counter security 353 RENUNCIATION, Of right to administer by next of kin 12 Right of widow to award not affected by 90 Of right of widow under will 141. i49 Legacies to be equalized in case of. 149 INDEX. 689 PAGE, RENTS, Where administrator may collect 50 To be inventoried 59 Falling due before death, personal 71 When real and when personal estate 71 Collected by guardians 238, 249 Of infant's land to be first applied to his education 257 REPLEVIN, Survives to administrator 66 REPORT, Of sale of real estate by administrator 173, 597 Maybe made at any term 175 What may be considered on 175 Of sale of real estate by guardian 305, 314 Lapse of time will not prevent 315 Of sale by guardian does not conclude ward 315 special commissioner 32S conservator 387 account by conservator 384, 392 assignee 431, 444, 476 That assets are insufficient to pay widow's allowance — form 580 Of private sale — form 586 assignment of homestead and dower — form 596 exceptions, to 598 RES ADJUDICATA, In proceedings to secure con( ealed goods 69 case of foreign administration 108 allowing or disallowing ch.ims 114 approving accounts 126, 127, 129 Order on guardian 23S, 348, 356 In approving accounts of guardian 291, 292, 293 final accounts 292, 293, 348 proceedings in insanity • 408, 409 bastardy 500 trials of right of property 529 RESIGNATION, Of executors and administrators 22 Acceptance of, amounts to removal 23 Administrator to pay costs of. 23 Of guardians 339 cannot be questioned in a collateral suit 341 not accepted except for good cause 341 RESULTING TRUST, County court cannot adjudicate in case of. 6 690 INDEX. PAGE. REVOCATION OF LETTERS, County court may 20 Unauthorized preference of creditors justifies 21 On refusal to perform duty 21 When minor or non-resident appointed 21 administrator becomes lunatic 21 drunkard 21 criminal 21 wastes estate 21 To appear of record 22 In case further security not given 28 Relieves securities from future liability 41 In case of removal of property 77 REVOCATION OF WILLS, Possible in all cases 195 How effected 195 Not by obliteration ... 195 Nor by declarations of the testator 195, 196 By birth of children 196 S. SALE OF PERSONAL PROPERTY, At inadequate prices, devasiavii 32 When to be made 78 Made on credit or for cash 78 at private sale by order 78 without order 79 Clerk and crier may be employed 80 Private sale of 78 Crops may be sold 79 When made 80 Bill to be returned 80 Notice of— form 580 Petition for, at private sale — form 585 Order of court for private — form 586 Report of, private — form 586 Sale bill, public — form 587 SALE OF REAL ESTATE, Jurisdiction in, given to county courts 4 Appointment of administrator cannot be questioned in 16 Additional bond to be given 26 Administrator no power to sell privately 49 Order for, in relation to partnership debts 99 May be coerced 155 Power derived from statute 156, 167 to order judicial 167 INDEX. 691 PAGE. SALE OF REAL ESTATE— Conh'nued. Power limited 167 Infant defendants— guardian ad litem 162, 163, 221, 222 May be enjoined by heir, until title is corrected 168 Power of a court of chancery to order 169 What may be shown in defense 169 Will be made only to pay debts contracted by the deceased 170 In cases of ancillary administration 170 Not made to pay debts barred 170 When made to reimburse administrator 170 Special statutory powers concerning, strictly construed 171 Court ordering, no power to direct other than legal payment 171 Decree in, should specify terms 171 Limitation to 171 Delays in applying for, may be explained 171 At public vendue 172 May be completed by i.Axmvi\s,\x^\ox de bonis non 174 survivor 174 Failure to advertise, does not vitiate i74 For less than value I74 Where deposit is required i74 Should be made in separate tracts i74 To administrator fraudulent i74. 359. 364 Irregularities in, will not invalidate. 175 When power to make, exhausted.. I75 On report of, what questions may arise 175 Not invalidated by failure to report ••• 176 Title held by deceased only passes 176 Effect on, of reversal of decree 176 Where debts were fraudulent 176 Not paid for 178 Under power in will 178 By foreign executors and administrators... 205 Of ward 217 no guardian ad litem necessary 222 By guardian 298 non-resident guardian 308 Proceedings for, in rem 309. 3'o, 312 Power to make a naked power 310 By one having no letters, void 312 Time of, by guardians 3^3 At a time other than that fixed by decree, vuid 313, 317 Order dismissing proceeding after decree, void 317 Irregularities in, do not vitiate 3^7 Bill filed to set aside 359 By conservators 3^6, 415 Petition by conservator for 387 692 INDEX. PAGE. SALE OF REAL 'ESTATE— Continued. Notice of application by conservator 387, 415 Court to direct time, etc 3^7 Report of. 387 Proceeds of 3^7 By non resident conservator 392, 415 Petition for — form 589 Cross petition in, for dower — form 590 Notice of— form 597 Report of — form 597 Exceptions to report of — form '. 598 Order approving — form 598 disapproving — form ^. 599 Administrator's deed in — form 599 r,CIIEDULE, To be attached to deed of assignment 436, 437 Of property by insolvent debtor 466 Contest of 467 When debtor cannot be compelled to 481 SECURITIES, Endangered, administrator to be removed 21 When not required 26 Court to examine at January and July terms 28, 284, 388 Upon bonds to betaken 28 Desiring to be released 28 To be discharged from liability, when 28 Conceiving themselves in danger— petition 29, 575 Liable for money received for causing death 35 Becoming administrator de botiis non 35 Bound by order directing administrator or guardian to pay 37, 348 Liable to the extent of assets only 38 Not in fiduciary relation to estate 38 When liable to administrator de bonis non 40 Names may not be in body of bond 41 Exempt from future liability in case letters are revoked 41 Not liable toco-administrators 4^ Liability of, whereadministratoractsalso as guard'n..4i, 51, 286, 293, 349 Where will is set aside 42 May appeal from any order aflfecdng administrator 42, 208 to equity for protection 43 Not liable for mistakes of principal 54> 34^ Liable for removal of property 78 On note discharged, if not probated 102 Not liable toone of the principals 136 On guardian's bond, liable for rents 238 Suit against, on guardian's bond "238, 348 INDEX. 693 PAGE. SECURITIES— Contifmed. Supplemental, on guardian's bond 238, 239 Liability conditional 239 Effect on, by discharge under bankrupt law ■ 239 For loans of ward's money 254 Loans without, guardian liable 254, 255, 259 Of guardians to be inquired into 284 Equity will protect against fraudulent accounts 292 On guardian's bond, defenses by 348 Not bound by finding of court on guardn's interlocutory account... 348 Bound by finding of court on guardian's final account 348 Action against, may be maintained before adjustment of accounts.. 349 can be maintained only after guardian's removal.. 349 Death of guardian renders, liable 35° Principal's estate need not be exhausted 35o Counter, on guardian's bond 35° conservators 3^8 Of conservators 3^8 On bond of one convicted of bastardy 494, 507 SECURITY, For goods sold at public sale 78 private sale 78 May be subrogated 355 SEDUCTION, Of infant, parent or guardian may sue for 251, 269 Female infant no power to consent to 269 SET-OFF, Not allowed against debts due estate 75. ^^^ Allowed against claim 105 Not allowed where purchased after death 112 Administrator not compelled to 112 Claim barred may be ii3 Distributive share against debt I49 In case of assignment 449 KF.TTLEMENT, To be required of administrators and executors about to remove [from state, 22 Of estate does not bar claims 104 enforced 129 guardian with ward 270 conservator with the court 384 Final, by conservator 384 Of estate of insolvent debtor 47^ 694 INDEX. PAGE. SHERIFF, Duties of, in county court 7 Fees of 7 To serve all writs issued by county court 7 summons 104 in petition to sell 158 Return of 158 To serve citation in bastardy 496 Notice to, of claim to property levied on 517 Duty of, in trials of right of property 517, 526 SLANDER AND LIBEL, Actions for, do not survive 66 by infants 268 against lunatics 421 SPECIAL BOND, To be given by executors and administrators, when 26 guardians, when 29S Fffect of not giving 3^- Presumptions in relation to 3i,> SPECIFIC LEGACIES, Not to contribute i35 SPENDTHRIFT, Conservator may be appointed for 381 Custody of 41^ STATUTE, C(^nstruction of, must be to enforce honest settlement, etc 7 English, models for ours 9 Providing for grant of administration mandatory 11 Providing for sale of personalty, directory 78 settlement of partnerships declaratory 85 Conflict of iiS Allowing imprisonment, to be strictly complied with 132 Special powers of, strictly construed 171 Of frauds, in sales of real estate I77 Bankruptcy 428 STATUTE OF LIMITATIONS, Duty of executors and administrators to plead 34 Securities on bond may insist on 42 Two years, does not run, when 61, 109 General statute, when it begins to run 109, 267 death does not arrest 109, no arrested by part payment 109 where plead, cuts off, etc 109 INDEX. 695 PAGE. STATUTE OF LIMITATIONS— Coniimie,i. General statute, when to be specially pleaded 109 not arrested by filing claim 109 in cases against a deceased guardian no effect on, of acknowledgment by administrator... 1 1 1 May be set up by next of kin 114 Two years statute 117. "8 On payments made by administrator by mistake 120 Bars claim for contribution I35 Debts barred by, cannot be paid by sale of real estate 169 None relating to sale of land to pay debts 172 Avoided by infants, how 266, 268 Runs-against married women 266 Does not run against infants 268 STEP-FATHER, Not entitled to compensation for maintaining infants 290, 291 Bill by 280 SUIT ON BOND, In, not necessary to establish devastavit- 33 For not taking good security 33 releasing or compounding debt 33 removing property from state 33 exhibiting untrue account 33 failure to file inventory 2)2> plead known defenses 33 account for debt due from administrator 33 money received for causing death 35 stolen from administrator, etc 36 failure to use diligence 36 redeem mortgaged lands 36 pay over money as ordered 35, 37 Breaches of condition may be assigned 37 Demand necessary, when 37 May be against part or all the obligors 38 by administrator de bonis non, when 40 Security for costs in 4° May be dismissed for want of cost bond 41 instituted by any person injured 41 Irregularities in bond, no defense to 41 In, securities may insist on statute of limitations to claim 42 May be brought in chancery, when 43 On failure to pay on demand 131 Securities not liable to one of the principals 136 Of guardian 269 conservator • 383 696 INDEX. PAGE. SUMMONS, To show cause why new bond should not be given 31 administrator on claims 104 In case of petition to sell land 158 Informalities in 158 Service of 158 on infant 280 To guardian 343 lunatics, etc 382 On petition in insanity 394 SURVIVING PARTNER, Not to be appointed administrator 12 Trustees of partnership property 83 To make inventory, etc 83 Liable to attachment 84 To continue in possession 84, 85 pay debts 84, 85 account with executor or administrator 84 pay over balances 84 render account 84 Must sue alone 84 Waste by 84 Required to give security 84 Cannot purchase of himself. 85 have individual account allowed 85 May purchase of legal representative 85 be required to make sale 86 render account 86 set off debts due firm from estate 86 When entitled to compensation 86 T. TAXES, Proceedings for collection of, in county courts 4 Administrator not bound to pay 49 Due at death, payable from personal estate loi When not legitimate charge loi Sales for, to trustee 361 TIE, In elections, how determined 544 TITLE, To personal estate vests in administrator 49 real estate vests in posthumous child 146 to be quieted 161 passes on sale by administrator 176 Not divested by reversal of decree 176 INDEX. 697 PAGE. TITLE — Contimird. By purchase from executor 179 On sale under decree, does not vest until report made and [confirmed, 314 Does not pass except by compliance with the statute 314 Equitable, when a conveyance will be compelled 316 TORTS, Infants are liaye as others 277, 280 Purchases through fraud are 277, 278 Lunatic liable for 422, 427 TRIAL, Of claims 104 On appeal from probate of will, to be de novo 190 contest of will in equity 192 question of sanity 390 In insolvency proceedings 465 bastardy 489, 490 contested elections 537 TRIAL OF THE RIGHT OF PROPERTY, Jurisdiction in 516 Notice to sheriff 517 county judge 517 plaintiff 518, 519 service of. 519 by publication 519, 520 to be mailed by clerk 521 Appearance of plaintiff to be entered..., 521 Trials in, by jury — venire 522 Judgment in 523 Verdict in 524 Appeals from judgment — bond 524, 525 Rules governing 526, 527, 528, 529 Issue in 526 Observations upon 526, 527, 528, 529, 530, 531 TROVER, May be maintained by administrator 66 Action of survivors 66 TRUSTEES, Executor liable as 35 Probate court no power over 35 May be appointed to execute will 47 Administrator of, no power to execute trust 49 liable as, when 52 De son tort, who is 55 Surviving partner is 83 698 INDEX. PAGE. TRUSTEES— Confimied. Compensation of 202 When title vests in 203 Guardians are, forwards 271 Who are 357 Duties of 357, 358, 359 May not deal with trust property 358, 361, 368, 369 Must act for principals alone 358, 365 May not purchase from themselves 358, 360, 367, 369 Disabilities of 359 Directors of a corporation, are 360 Acts of, inure to benefit oi cestui que trust..... 361, 362 Accounts by, for profits 361, 362 Purchasers from, in good faith 362 Purchasing outstanding title 362 Cannot divest himself of his character 364 deny title of cestui que trust 364 Must act in good faith 365, 37o Voluntary 3^5 Remedy against - 3^6 Acting in good faith, not liable for loss 367 An officer of the court 368 Assignees, as 446, 450 When agent becomes 369 TRUSTS, Not all are considered preferred 118, 119 Naked, do not affect descent 149 Court will advise in relation to 200, 201 Naked, title vests in cestui que trust 201 Enforced by ward against guardian 217 Of guardians cannot be assigned 248 delegated 248 Funds of, to be kept separate 255 One holding trust relation to infant 327 Created by letters of guardianship 346 Survives to surviving guardian 346 Defined 357 When implied 357 May be enforced against all having notice 362, 363 TJ. UNCLAIMED ESTATE, Disposition of. 136, i37 To be deposited i37, 297 How obtained by owner i37 UNDERGRADUATES, As voters 539, 54° INDKX 699 PAGE. JNDUE INFLUENCE, To avoid a will ^93 What constitutes '93 ^ENUE, See "Change of Venue." VERDICT, In lunacy proceedings 39° insanity 397 to be recorded 39^ may be set aside 405 how far conclusive 405 VOID, When letters not 9. ^7 Acts of administrator not, when i7 Appointment, does not become valid by lapse of time 17, 18 not, on probate of will 21 Private sale of real estate 49 Allowance of claims by arbitration 106 without notice 112 Sale of land not named in petition I73 Bond of guardian, when 238 Deed by infant married woman 265, 266 Release of his share of estate by infant 267 Contract of infant to pay interest, is 277 Without jurisdiction, proceedings are 3" Order of court, not having jurisdiction 312 Decree obtained by a person having letters, is 3" Sale of a ward's land at a time different from time fixed by decree 313 Act, cannot be confirmed 3^7 Sale at time not named in decree ■ 3^7 of ward's real estate may be confirmed by him 3^9 unless statute be strictly followed 329 Covenants by guardian, when 329 Deed from trustee to himself, not 358 Proceedings for divorce of lunatic 4i5 Contracts of lunatics, etc 3S5, 4i5, 4i6, 417, 4i8, 419 Preference of creditors 435 When deed of assignment is 446, 447, 448, 449 Election 544 VOIDABLE, When letters are '8, 21 Illegal sales of property ^ Sale of land to administrator i74. '75 Erroneous decree ^^-5 700 INDEX. PAGE. VOIDABLE— Continued. Acts of infant 265, 266, 276 Purchase of ward's land by guardian 272 Arbitration by guardian is, by infant 272 Conveyance by guardian to one for himself 316 Sale by trustee to himself 35S, 359 Contracts with lunatics, etc 3^'^5. 416,417. 4i8, 419 "W. WARD, Estate of, when liable for maintenance 215 Services of, who entitled to 215 May file bill against guardian 218 Must be in court before guardian ad litem is appointed 221 May ratify acts 280 See "Infant." WARRANT, To commit insane person 399 appraisers — form 577 commissioners — form 595 WIDOW, Preference in administration n When not to be appointed administrator 13 To receive assets of estate, when 63 Liable for funeral expenses, when 63 Policy payable to 7^ Liable for waste 74 May select in lieu of specific articles 89 No power to waive award 90> 9^ Right to award fixed upon death of husband 91 Not permitted to seize and hold money 91 Preferred over creditors 93 Bound by relinquishment 94 May compel sale of real estate 83 Bound by acceptance 91 May probate claim 108 Not affected by advancements i44 Of childless husband, takes personal estate charged with debts... 148 Accepting provisions in will i49 To be made party to petition tosell 149 Relinquishment by— form 579 Petition by, for dower— form 59° WIDOW'S AWARD, When assets do rot exceed 63, 92 Of what it consists 88 Allowed in exclusion of debts, etc 88 1^ INDEX. 701 PAGE. WIDOW'S AWARD— Con/inued. Appraisers to estimate 89 Penalty for failure to set off. 89 When there is not property in kind 89 Right to, not affected by renunciation 90 Only made in case of residents 90, 92 Policy of the law 90 For benefit of children 90 Not affected by ante-nuptial agreement 90, 91 Right fi.xed upon death of husband 91 right cannot be cut off by will 91 Need not be presented and allowed as a claim 91 Legal title to, vests in widow 92, 94 Takes subject to funeral expenses 92 A preferred claim 93, 94 Appraisers to consider condition in life 93 No allowance made for family pictures 93 Court may set aside 93 Conclusive in proceeding to sell land 94 upon widow ; 94 Is a lien upon real estate 94 Homestead and dower exempt from 95 Husband not entitled to 147 Form of 578 Where widow is insane 141 WIFE, Right of, to administer 11 Entitled to be conservator of husband 408 Claim by 108 See "Widow." WILL, Courts of equity will not admit to probate 5 When discovered, effect on administration iS During contest of, estate to be committed to administrator 19 On production of, letters revoked 21 Setting aside, does not render letters void 21 Power of administrator, under 31 To be filed for probate by executor or custodian 45 Maydirect payment of debts 65 Must be strictly followed in relation to partnership 83 Construction of, by court of chancery 169 Power in, to sell lands 178, 179 Construction of, in relaticin to power to sell 179 Power to make, statutory 181 Definition of 181 Who luay make 182 Mental capacity to execute 18?, 183 44 X 702 INDEX. PAGE. WILL — Continued. How made and declared 183 To be recorded 183 Signatures to ^83. 184 Publication of, not necessary 184 Change in, must be witnessed 184 Attestation in presence of testator 184 Foreign ^84 Can be no mutual 184 All property maybe disposed of, by 184 May limit estate in property devised 184 Power to dispose of property by, is unlimited 185 Custodian to deliver to county court 185 Where probated 185 Probate of, cannot be waived 186 in circuit court 187 evidence in 188 Order remitting or rejecting, how far binding 189 Devise in, to subscribing witness 189, 190 Contest of. : 190, 191, 192 To remain with clerk 190 Letters to issue on 191 Who may contest 192 Contested by bill in circuit court 192 Part of, may be contested 192 Executed out of thestate '94, i95 How revoked i95, 196 Nuncupative ^9^ Lost, how proven 198 Law of domicile to control 198 Construction of ^99 Evidence inadmissible to explain 190 Words of, not taken in technical sense 190 Whole instrument considered 190 Fraudulent as to creditors, when 201, 202 Disposition by, of children 218, 219 Of divorced wife 220 WITNESSES, In bastardy • 49i WITNESSES TO WILL, Must sign in presence of testator 183 To appear before the counly court 186 Imprisonment of ^86 Non-resident ^86 Where county judge is 187 they differ 18S, 189 INDKX. 703 PAGE. WITNESSES TO ^N\lJL.— Continuid. Where neither could write his name 189 Interest of. 1 '^9. '9o Need not be called in contest of will 192 To nuncupative 197 WRIT OF KI^ROR, From order of imprisonment 209 When it lies from county court in probat-r 21c Infant may prosecute 267 In bastardy proceedings 498 WOMAN, Right to naturalization 562 "^4 LAW LIBRART ^ ^/fo UNIVERSITY m CALIFORNIA ^^ LOS ANGELES SOUTHERN REGIONAL LIBRARY FACILITY See Spine for Barcode Number