Mr. Chief Justice Carter
delivered the opinion of the court:
The motion of appellee to dismiss the appeal for want of jurisdiction in this court, reserved to the final hearing, will be first disposed of. In Lynn v. Lynn, 160 Ill. 307, where a similar question was raised, the whole subject was exhaustively considered and the statutes carefully compared, and we there held that section 88 of the Practice act, as amended, and section 8 of the Appellate Court act, relating to the appellate jurisdiction of the Appellate and Supreme Courts, controlled such appeals, and that under the present statute such a proceeding involved a freehold, and that the appeal was properly taken to this court. That decision is conclusive, for here, as there, the title is involved and is the principal question in the case. The motion will be overruled.
Appellants contend, first, that Olivia Read took nothing by descent from Charles G. Read; second, that Mary Wentworth is estopped from setting up any claim against the lands of Charles G-. Read because of her failure to set up such claim in the partition suit, to which she was a party; and third, that said real estate cannot be sold to pay her claim for the reason that it was not presented or filed within the two years fixed by the statute, and also for the reason said real estate is not property inventoried or accounted for after the expiration of said two years, within the terms of her judgment allowing the claim.
The will of Charles G. Read gave to his wife all of his property, both real and personal, of which he died seized, to be accepted by her in lieu of dower, during her natural life. There is no other disposition made of the real estate, and there is no residuary clause. The will nowhere attempts to dispose of the fee in the realty. It is not devised to any one. In such case, the provisions of section 12 of the Statute of Descent must control, which provides that “all such estate, both real and personal, as is not devised or bequeathed in the last will and testament of any person, shall be distributed in the same manner as the estate of an intestate.” As to the fee of these lands Charles G-. Bead died intestate, and the third paragraph of section 1 of the Statute of Descent became applicable, which is as follows:
“Third—When there is a widow or surviving husband,. and no child or children, or descendants of a child or children, of the intestate, then (after the payment of all just debts) one-half of the real estate and the whole of the personal estate shall descend to such widow or surviving husband as an absolute estate forever, and the other half of.the real estate shall descend as in other cases where there is no child or children or descendants of a child or children.”
In cases where there is a widow and no descendants of the deceased the widow inherits one-half of the realty and is entitled to dower in the other half. (Shoot v. Galbreath, 128 Ill. 214.) In this case the widow’s dower in the other half was one-third, but her husband chose to give her, in lieu of that dower, a life estate in all of his real estate. While this was more than the statute gave, still he had the undoubted right to make such provision for his wife.
Appellants insist that section 12 of the Dower act is applicable to the facts of this case, and that Olivia Bead by her acts elected to take under the will and was thereby barred from taking under the statute. But section 12 of the Dower act relates to cases in which the husband or wife dies testate, and not to cases of intestacy. The husband in this case died, as we have seen, wholly intestate as to the fee in his lands, and it is this fee only which is here involved. We are therefore of the opinion that this provision of the Dower act has no application here. It is manifest that her failure to elect under the statute relating to dower could affect none of her interests except her dower, and, at most, her distributive share of her husband’s personal estate. (Carper v. Crowl, 149 Ill. 465.) The same line of reasoning applies to section 10 of the Dower act, which is also quoted by appellants. That qection has no reference to the statutory rights of husband and wife to inherit from each other in cases of intestacy. Gaueh v. St. Louis Mutual Life Ins. Co. 88 Ill. 251.
As the statute now is, the county court was authorized to determine all questions of conflicting or controverted titles, and the decree was correct in finding that one-half of said real estate passed to Olivia Read upon the death of her husband, and that she died seized of said undivided one-half, and that appellants had no right, title or interest in the same, but owned the other half according" to their respective deeds. This half belonging to the heirs of Olivia Read remained unaffected, as to them, by the decree in the partition suit, because they were not parties to that case.
It does not appear that the county court expressly determined the question raised by Mary Wentworth in her answer, that two-thirds of said one-half of said real estate was devised to her and the other third to Henry B. Read, by the will of Olivia Read. Indeed, that question would not be material to the application to sell to pay debts, as the lands would be first subject to this charge, whether devised or not. The question would become important only in making an order for the distribution of any surplus, or in some other action for the recovery of any of such real estate that might remain unsold. It is manifest that even if the effect of Mrs. Read’s will was to devise to Mary Wentworth two-thirds of said one-half, and that she is now barred from asserting title thereto because of her failure to set it up in the partition case and by the final decree in that case, still the right of the administrator to sell to pay debts would remain unaffected, unless, as contended by appellants, that right is also barred by the decree in the partition case. The effect of the decree of the county court, however, in finding that appellants owned only one undivided half, was to find, either that Mary Wentworth took no interest in the land as devisee of Olivia Read, or, if she did, that appellants’ rig'hts were not enlarged by virtue of any estoppel arising- from the decree against her in the partition suit. It is not claimed by either party that the contingency upon which the devise of Olivia Read of the land in question to Mary Wentworth and Henry B. Read was to take effect ever happened. It does not appear that the will of Charles G. Read was ever declared null and void, but, on the contrary, it was admitted to probate and has been acted upon as valid by all parties. It simply contained no provision making any.devise of the fee in the real estate or any charge of the legacies upon the same. It has been construed and its meaning interpreted and carried into effect. It seems clear, therefore, that Mary Went-worth did not take any interest in the real estate under Olivia Read’s will, and that being so, no such interest was barfed, as against her, by the partition decree, and so far as it related to that alleged interest the order of the county court is right on the question of res judicata raised by appellants.
But it is also contended that the right of the administrator to sell the undivided half in controversy of this land to pay Mary Wentworth’s claim is also barred by estoppel—that that question is also res judicata because they were both parties to the partition suit and the question was not there raised and is concluded by the decree.
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Mr. Chief Justice Carter
delivered the opinion of the court:
The motion of appellee to dismiss the appeal for want of jurisdiction in this court, reserved to the final hearing, will be first disposed of. In Lynn v. Lynn, 160 Ill. 307, where a similar question was raised, the whole subject was exhaustively considered and the statutes carefully compared, and we there held that section 88 of the Practice act, as amended, and section 8 of the Appellate Court act, relating to the appellate jurisdiction of the Appellate and Supreme Courts, controlled such appeals, and that under the present statute such a proceeding involved a freehold, and that the appeal was properly taken to this court. That decision is conclusive, for here, as there, the title is involved and is the principal question in the case. The motion will be overruled.
Appellants contend, first, that Olivia Read took nothing by descent from Charles G. Read; second, that Mary Wentworth is estopped from setting up any claim against the lands of Charles G-. Read because of her failure to set up such claim in the partition suit, to which she was a party; and third, that said real estate cannot be sold to pay her claim for the reason that it was not presented or filed within the two years fixed by the statute, and also for the reason said real estate is not property inventoried or accounted for after the expiration of said two years, within the terms of her judgment allowing the claim.
The will of Charles G. Read gave to his wife all of his property, both real and personal, of which he died seized, to be accepted by her in lieu of dower, during her natural life. There is no other disposition made of the real estate, and there is no residuary clause. The will nowhere attempts to dispose of the fee in the realty. It is not devised to any one. In such case, the provisions of section 12 of the Statute of Descent must control, which provides that “all such estate, both real and personal, as is not devised or bequeathed in the last will and testament of any person, shall be distributed in the same manner as the estate of an intestate.” As to the fee of these lands Charles G-. Bead died intestate, and the third paragraph of section 1 of the Statute of Descent became applicable, which is as follows:
“Third—When there is a widow or surviving husband,. and no child or children, or descendants of a child or children, of the intestate, then (after the payment of all just debts) one-half of the real estate and the whole of the personal estate shall descend to such widow or surviving husband as an absolute estate forever, and the other half of.the real estate shall descend as in other cases where there is no child or children or descendants of a child or children.”
In cases where there is a widow and no descendants of the deceased the widow inherits one-half of the realty and is entitled to dower in the other half. (Shoot v. Galbreath, 128 Ill. 214.) In this case the widow’s dower in the other half was one-third, but her husband chose to give her, in lieu of that dower, a life estate in all of his real estate. While this was more than the statute gave, still he had the undoubted right to make such provision for his wife.
Appellants insist that section 12 of the Dower act is applicable to the facts of this case, and that Olivia Bead by her acts elected to take under the will and was thereby barred from taking under the statute. But section 12 of the Dower act relates to cases in which the husband or wife dies testate, and not to cases of intestacy. The husband in this case died, as we have seen, wholly intestate as to the fee in his lands, and it is this fee only which is here involved. We are therefore of the opinion that this provision of the Dower act has no application here. It is manifest that her failure to elect under the statute relating to dower could affect none of her interests except her dower, and, at most, her distributive share of her husband’s personal estate. (Carper v. Crowl, 149 Ill. 465.) The same line of reasoning applies to section 10 of the Dower act, which is also quoted by appellants. That qection has no reference to the statutory rights of husband and wife to inherit from each other in cases of intestacy. Gaueh v. St. Louis Mutual Life Ins. Co. 88 Ill. 251.
As the statute now is, the county court was authorized to determine all questions of conflicting or controverted titles, and the decree was correct in finding that one-half of said real estate passed to Olivia Read upon the death of her husband, and that she died seized of said undivided one-half, and that appellants had no right, title or interest in the same, but owned the other half according" to their respective deeds. This half belonging to the heirs of Olivia Read remained unaffected, as to them, by the decree in the partition suit, because they were not parties to that case.
It does not appear that the county court expressly determined the question raised by Mary Wentworth in her answer, that two-thirds of said one-half of said real estate was devised to her and the other third to Henry B. Read, by the will of Olivia Read. Indeed, that question would not be material to the application to sell to pay debts, as the lands would be first subject to this charge, whether devised or not. The question would become important only in making an order for the distribution of any surplus, or in some other action for the recovery of any of such real estate that might remain unsold. It is manifest that even if the effect of Mrs. Read’s will was to devise to Mary Wentworth two-thirds of said one-half, and that she is now barred from asserting title thereto because of her failure to set it up in the partition case and by the final decree in that case, still the right of the administrator to sell to pay debts would remain unaffected, unless, as contended by appellants, that right is also barred by the decree in the partition case. The effect of the decree of the county court, however, in finding that appellants owned only one undivided half, was to find, either that Mary Wentworth took no interest in the land as devisee of Olivia Read, or, if she did, that appellants’ rig'hts were not enlarged by virtue of any estoppel arising- from the decree against her in the partition suit. It is not claimed by either party that the contingency upon which the devise of Olivia Read of the land in question to Mary Wentworth and Henry B. Read was to take effect ever happened. It does not appear that the will of Charles G. Read was ever declared null and void, but, on the contrary, it was admitted to probate and has been acted upon as valid by all parties. It simply contained no provision making any.devise of the fee in the real estate or any charge of the legacies upon the same. It has been construed and its meaning interpreted and carried into effect. It seems clear, therefore, that Mary Went-worth did not take any interest in the real estate under Olivia Read’s will, and that being so, no such interest was barfed, as against her, by the partition decree, and so far as it related to that alleged interest the order of the county court is right on the question of res judicata raised by appellants.
But it is also contended that the right of the administrator to sell the undivided half in controversy of this land to pay Mary Wentworth’s claim is also barred by estoppel—that that question is also res judicata because they were both parties to the partition suit and the question was not there raised and is concluded by the decree. When that suit was begun Olivia Read was dead and her undivided half of the lands had descended to her heirs-at-law, but they were not made parties to the bill. The suit proceeded to a decree on the theory that Olivia Read, the widow, had been barred of her right to inherit one-half of the land by taking the provision made for her in the will and not renouncing the same. The only allegation in the bill as to Mary Wentworth, and the ground on which she was made a party, was that she, with -her husband, also made a party, was in possession of one of the pieces of real estate,—a house and lot,—and owed rents. Henry B. Read was not made a party, but came in and with Mary Wentworth filed pleas claiming, as before stated, that their legacies in the will of Charles G. Read were a charge upon the land. As administrator Henry B. Read was not a party to that suit, and could not have been, for he had not then been appointed as such. No question concerning the administration of the estate of Olivia Read was raised or determined in that suit. The administration of that estate was then properly pending in the county court, and the circuit court was not the proper fprum to determine questions of the allowance of claims and passing upon the accounts of the administrator. That in the exercise of their equitable jurisdiction circuit courts are authorized to take charge of the administration of estates in certain cases is undoubted, but it is well settled that they will not do so except in extraordinary cases. (Heustis v. Johnson, 84 Ill. 61; Crain v. Kennedy, 85 id. 340.) Mary Wentworth had no judgment, and while she had the right to have this land subjected to the payment of her debt through proper proceedings in the county court, she was not a necessary party in the partition suit, and her rights as such claimant were not barred by the decree in that suit. The circuit court could not have effected a settlement of Mrs. Read’s estate by anything" Mary Wentworth could have done in the case in that court. Besides, her claim was against the title of the heirs of Olivia Read, and they were not parties, and could not have been concluded by any decree in the case. The practice of taking" decrees of partition and of sale in partition suits before it can be known whether or not they will be required to sell the land to pay debts is not unusual, but is to be deprecated. Courts of equity will not take the administration of estates from the county court simply to facilitate the partition of real estate, and purchasers at such sales must take notice of the rights of creditors of the deceased owner. And in this case actual notice was given at the sale. It is elementary that the decree of the court in the partition case that no other person has any interest in the property except as alleged in the bill and found by the decree would not affect the rights and interests of persons who were not parties to the suit.
• We hold that this cause, as an application to sell said undivided half to pay said debt, is not affected by the record or decree in the partition case, and that Mary Wentworth is not estopped thereby from asserting■ her rights as a claimant against the estate of Olivia Read.
The next contention of appellants is, that the claim of Mary Wentworth was not a proper charge against the real estate of Olivia Read, because it was not presented within two years after the issuing of letters testamentary, and that she could not take advantage of her own delay or neglect in filing an inventory, and then, after the lapse of two years, treat this real estate as subsequently discovered property. It does not appear that any one discovered- that Olivia Read owned the undivided half of the lands in question within two years after her death, and we see no evidence of willful neglect or fraudulent purpose in Mary Wentworth’s failure to include it in her inventory. By the seventh clause of section 70 of the Ad: ministration act the payment, pro rata, of demands not exhibited within two years, out of “such subsequently discovered estate,”—that is, estate not inventoried or accounted for by the executor or administrator,-—is provided for. Her claim was a just one, as clearly appears from the record, and we are of the opinion that she had not lost the right to have the real estate of her debtor sold to pay it, neither by lapse of time (about four years) nor by her acts or omissions.
The order and decree of the county court must be affirmed.
Decree affirmed.