Moline Water Power & Manufacturing Co. v. Webster

26 Ill. 233

• Court: Illinois Supreme Court
• Decided: April 15, 1861
• Status: Published

Opinion

Caton, C. J.

This was a proceeding by an administrator to sell real estate left by the intestate, for the payment of debts. It is not a chancery proceeding, as was insisted upon on the argument.

We have repeatedly decided that the allowance of claims against an estate by the probate court, is not conclusive against the heir in this proceeding, and that he is allowed to contest the validity of such claims. To that rule we adhere.

We have also decided that equitable claims against an estate may be allowed by the probate court, and it would seem to follow that real estate may be sold for their payment. Debts against the firm of which the intestate was a member, after the partnership assets have been exhausted in the payment of the firm debts, become an equitable claim against the estate, subject to the individual debts against the estate, all of which must be first paid, before any payment can be allowed upon the firm debts, and this should be provided for in the order of the probate court, in allowing the claim against the .estate, or by the order of the Circuit Court ordering the sale of real estate for the payment of claims against the estate. We wish to be distinctly understood, that no claim should be allowed against the estate for a partnership debt, till it is shown that all the partnership assets have been exhausted. Till this is done, no equitable claim even arises against the estate. This will be sufficient to inform the circuit by what principles, in the judgment of this court, it should be governed, as to the allowance of these parnership claims, when the cause is remanded, as it will be. '

We will not say that it is indispensable that the order of the Circuit or County Court, in ordering the sale of real estate, should specify the precise amount for which the lands should be sold, or that it should specify what particular tracts should be sold, or which should be first sold, but the statute does positively require, that the order should specify whether it should be sold for cash or on a credit, or what credit. This was not . done in this case.

The order of the Circuit Court is reversed, and the cause remanded for further proceedings, consistent with the principles here laid down. Order reversed.