Walker v. Diehl

Citations

• 79 Ill. 473

Syllabus

<p>1. Administrator—power to sell real estate. An administrator derives liis power to sell real estate to pay debts from the statute, and unless the petition shows a state of facts contemplated by the statute to authorize a sale, and such state of facts is sustained by the proof, a decree of sale can not be maintained.</p> <p>2. The lands of one dying intestate descend to the heirs. The administrator takes no estate or title therein. He has only a bare naked power to sell the land for the payment of such debts as were in existence at the time of the death of the decedent, in case the personal property is insufficient.</p> <p>3. An administrator can not make debts incurred in the settlement of the estate, alone, the foundation for a decree to sell real estate.</p> <p>4. Same—petition to sell real estate—what must he shown. A decree of sale of real estate by an administrator, unless the petition avers, and the proof sustains the averment, that the decedent, at the time of his death, left debts that were legally chargeable upon his estate, will not be upheld.</p> <p>5. It appeared, from the petition and proof, that no assets came to the hands of the administrator, but that he had paid out of his own funds taxes on real estate, insurance, court costs, etc.: Held, that these items were not legitimate charges against the estate, and a decree for a sale of land to pay them could not be sustained.</p> <p>6. Same—not his duty to pay claims until allowed hy the county court. As a general rule, it is no part of an administrator’s duty to pa)- a claim against an estate until the creditor presents it to the county court, proves it and the court allows it.-</p> <p>7. Where an administrator pays a claim before it is allowed by the court, he does so at his peril, and he must take the risk of proving it and getting- it allowed, the same as any other creditor.</p> <p>8. Where the petition and proof show that the only legitimate claim paid by an administrator was the funeral expenses