Hoffman v. Wilding

Citations

• 85 Ill. 453

Syllabus

<p>1. Hants—whether they may be sued alone for ancestor's debt. A creditor can not maintain an action against heirs, on a debt of their deceased ancestor, without also joining the personal representative of the deceased as a co-defendant, except in two cases—first, where a judgment has already been obtained against him, and there are no assets in his hands for its payment, and second, where the estate has not been administered on within one year from the death of the ancestor.</p> <p>3. The personal estate of a deceased person is the primary fund for the payment of his debts, and a resort to the realty can not be had until the personal estate is exhausted. Therefore, a creditor, before suing the heirs, should sue the personal representative, even though the personal assets are insufficient to pay all the debts, or in case the personal estate is not sufficient, he may sue the administrator and the heirs of the deceased jointly, and then the assets in the hands of the administrator are first to be applied in payment of the judgment.</p> <p>3. In an action by a creditor, against the heirs of a deceased person, on a note due from their ancestor, the declaration, after showing the indebtedness, alleged, in substance, that the deceased left real and personal property to the value of §30,000; that the personal property was insufficient to pay his debts; that the real estate had been sold and converted into monej’-, by the heirs, before the commencement of this suit; that the note remains unpaid, and that the defendants are the heirs, and inherited the estate of said deceased: Seld, that the declaration failed to show sufficient grounds for omitting to join the personal representative as co-defendant with the heirs.</p>