McCullom v. Chidester

Citations

• 63 Ill. 477

Syllabus

<p>1. Nuncupative will—whether personalty devised thereby is subject to the payment of debts. A testator, by a nuncupative will, which was reduced to writing and probated as required by the statute, bequeathed his personal property to a person named. The deceased died seized of unincumbered real estate sufficient to pay his debts, of which he made no devise: Held, that the legatee in the will took the personalty as an absolute conveyance discharged from the payment of the debts. Where there is a bequest of the personalty, and realty remains, of which there is no devise, creditors of the estate must first resort to such realty.</p> <p>3. Jurisdiction in chancery—-defense at law. The legatee in the will was duty appointed executrix by the proper court, and executed bond with security, which was approved, and she took possession of the personal property. Afterwards, her letters were revoked, and an administrator de bonis non was appointed, who brought suit on the bond of the executrix. The surety on the bond filed a bill in chancery to restrain the prosecution of the suit: Held, that the bill could not be maintained, as the defense was good at law- The act of the executrix in taking possession of the personalty, and using it as her own, could not be deemed in law a devastavit, so as to authorize a suit on the bond. Her neglect to sell the property and apply the proceeds to the payment of debts—the same being vested in her by the will, and there'being sufficient realty not charged with any legacy to pay the debts—could not be construed ijito mismanagement or waste of the estate.</p>