Garvin, Bell & Co. v. Stewart's Heirs

Citations

• 59 Ill. 229

Syllabus

<p>1. Cbeditob’s bill—whether it will lie against the heirs of a deceased debtor. While there are cases, where there are complicated equities, which might authorize a court of equity to entertain a creditor’s bill against the heirs of a deceased debtor, to subject the real estate descended to them to the satisfaction of the debt, and to adjust the equities between the several creditors, yet, ordinarily, creditors of an estate will be remitted to the remedy provided by statute for the settlement and distribution of estates, through the agency of the administrator.</p> <p>3. In this case a creditor had obtained a judgment at law against a surviving partner, and thereupon filed his bill in chancery against the heirs of the deceased partner, to subject real estate which had descended to them, to the payment of the debt, alleging the insolvency of the surviving partner, and that there was no administrator of the estate. The bill did not disclose whether there were any other creditors. It was held, the facts were simple, and there was no reason existing for taking the case out of the ordinary course of administration provided by the statute, and a court of chancery ought not to entertain the bill.</p> <p>3. The fact that the claim may be of an equitable character, will not avail, of itself, to render it proper for a court of chancery to assume jurisdiction, because the probate court, in the matter of the settlement of estates, may take cognizance of equitable claims as well as those which are purely legal in their character.</p> <p>4. Same—of the requisites of the bill—character of creditor’s lien on real estate of deceased debtor. In a case where the equitable circumstances are such that a court of equity might properly entertain a creditor’s bill against the heirs of a deceased debtor, the bill should show there are no personal assets to which resort could be had, because the creditor’s lien upon the real estate is only secondary, and depends upon the non-existence of p