Phelps v. Funkhouser

Citations

• 39 Ill. 401

Syllabus

<p>1. Administrator—general powers of. An administrator has the power to apply for an order of court to sell the real estate of the intestate, but he has no power to involve the estate in litigation, under a pretense of removing an incumbrance, with a view to a better price when it shall be offered for sale. He must take the estate as he finds it, and, if incumbered, sell subject to such incumbrance.</p> <p>3. Parties—who may bring suit to remove cloud from estate of-an intestate Under our statute, the estate, both real and personal, of an intestate descends to his children, if any, or to his heirs, whoever they may be, and they alone, as such representatives, have power to bring suits regarding the title to land, to remove a cloud, or any incumbrance upon it.</p> <p>3. Administrator—power respecting lands. The estate of an intestate, being under the full power and control of the heirs, an administrator has no power, nor is he bound, to protect the realty in any manner, not even to the extent of paying the taxes assessed against it. The cases of Walbridge v. Day et al., 31 Il1. 379; Smith et al. v. McConnel et al., 17 id. 135, and Stone et al. v. Wood, 15 id. 177, discussed and affirmed.</p> <p>4. Same—how to remove an incumbrance upon land, when the administrator has obtained an order of sale. If it is desirable for the administrator to expose the lands of his intestate, which are incumbered by mortgage, to sale for the payment of debts, the course to pursue is for the administrator to obtain an order to sell it, and to prevent the anticipated sacrifice, the heir may enjoin the sale until he can make an effort to set aside the mortgage.</p>