Harding v. Le Moyne

Citations

• 114 Ill. 65
• 29 N.E. 188

Syllabus

<p>1. Administration of estates—lands of an estate—powers and duties of the administrator in respect thereto. An administrator takes no interest in or to the realty of his intestate. In no event can he take anything more than a mere power, and in the absence of an insufficiency of personal assets to pay debts, he has nothing whatever to do with it.</p> <p>2. Same—sale of land to pay debts—prerequisites to the right. Under the act of 1857, it is essential to the right of an administrator to apply for an order to sell real estate to pay debts, and to the jurisdiction of the court to grant such order, that it shall be made to appear by the petition that the personal estate of the testator or intestate is insufficient to pay the just debts against his or her estate, and that there be real estate to which the testator or intestate had “claim or title,” and that the executor or administrator has made a just and true account of the personal estate and debts of the deceased, to the proper county court. Unless these jurisdictional facts appear on the face of the petition, the court has no power to make any order in the premises.</p> <p>3. Same—of the character of title required, in order that the land may be sold. On an application by an administrator for leave to sell land to pay debts and costs of administration, it is not material whether the deceased had the better title to the land sought to be sold or not, or, indeed, whether he had any title at all. It will be sufficient if the deceased, at his. death, had a bona fide claim of title.</p> <p>4. Same—claim of title adversely—whether it should, be interposed, and for what purpose. In a proceeding by an administrator for leave to sell land to pay debts, the court, exercising but a mere statutory authority, has no jurisdiction to settle and determine conflicting titles to the land, or to remove clouds upon title. If the paramount owner of the land is made a defendant, it would doubtless be his duty to assert his rights to