Cutter v. Thompson

Citations

• 51 Ill. 390

Syllabus

<p>1. Administrator—of Ms powers respecting incumbrances upon lands sought to be sold to pay debts. It was held, in Phelps, Admr. v. Funkhouser, 39 Ill. 401, that the statute of “ Wills” gave no power to an administrator to involve an estate in litigation, under a pretense of removing an incumbrance, with a view to a better price vthen it shall be offered for sale to pay debts. -He must take the estate as he finds it, and if incumbered, or there be clouds .upon the title, sell it subject to them.</p> <p>. 2. Same—construction of the act of 1857, in that regard. The rule thus laid down, was based upon certain sections of the statute of “ Wills,” which had been repealed by the act of 1857, amendatory of the law respecting the ‘sale of the lands of an estate to pay debts, but the act of 1857 in no wise militates against the doctrine of that case in that regard, and it is adhered to.</p> <p>‘ 3. The act of 1857 makes no substantial change in the law as it was contained in the repealed sections, except that now, the administrator has authority to apply for the sale of any land, to which the intestate had claim or title, but of which he did not, technically, die seized. Such a claim may be- investigated by the court, under the act of 1857, in the mode therein pointed out, and, if found to exist, then an order may be obtained to sell it. But it was not intended to give the administrator authority to engage in litigation for the purpose of removing clouds upon title.</p>