Mr. Justice Scholfield
delivered the opinion of the Court:
The first question to be determined is, does the evidence sustain the findings of the court below, upon the issues submitted to it, by this court, for trial?
We have more doubt in regard to the finding upon the issue presented by the first replication to Wenner’s plea than as to either of the other issues. Although Houtze and Wenner both swear that Wenner paid Houtze $4585 upon the sale by Houtze to him of the land described in the plea, there are several circumstances disclosed by the evidence tending to impair the effect of their testimony and to cause it to be regarded with suspicion ; still, we are not prepared to say that we are clearly satisfied the finding upon this issue should be reversed.
As to the findings upon the issues presented by the 4th and 7th replications, the evidence shows that the court below, on the original hearing of the cause, decreed that Hiram T. Gilbert be appointed a trustee to receive the money found to be due from Houtze' and distribute the same to those found to be entitled, to sell certain real estate, pay costs, etc., and also that the trustee’s receipt to Houtze should “constitute, be and operate as a full discharge of said William G. Houtze from all further liability as administrator with the will annexed of Hiram Thornton, deceased, and, also, from all further liability as trustee for the sale of the real estate.” William G. Houtze, pursuant to this decree, paid to the trustee, Gilbert, $8416.26, and took from him this receipt:
“ Received of William G. Houtze, administrator of the estate of Hiram Thornton, deceased, the sum of eight thousand four hundred and ten and twenty-six hundredths dollars in full settlement and discharge of his liability as administrator of the estate of Hiram Thornton, deceased, or as trustee under the appointment of the county court of said county for the sale of real estate, this receipt to be filed, or a duplicate thereof, in the probate court, and an order entered for his final discharge as such administrator and for a release of his securities upon his administrator’s bonds. This money is received by me by virtue of my appointment as trustee in said cause, and upon the express understanding by me, as such trustee, and as attorney for the complainants in said cause, that the payment of said sum is a final discharge of all liability of said Houtze by reason of his administration of said estate, the said Houtze to be protected from liability, if any he has, for the succession tax to the United States government.
Dated, Ottawa, March 22, 1877.
Hiram T. Gilbert,
Trustee of the estate of Hiram. Thornton, deceased.”
Gilbert had been acting as attorney for some of the heirs at law of Hiram Thornton, deceased, but not for all. For some of the defendants who have assigned errors he was attorney. He has paid out a portion of the money he received from Houtze, but has, at all times, retained and still retains in his hands more than the amount paid by Wenner to Houtze. He did not distribute what he paid out, fro rata. He did not pay any of the parties so much of their distributive shares of that fund but what there was remaining more of their shares than their pro rata amount of the Wenner purchase money, if distributed, would amount to. The payments he has made have been made only to a portion, not to all, of the parties claiming as heirs at law of Hiram Thornton, deceased,—and, as such, here complaining or defending. Gilbert, in his testimony, says, and is in that regard uncontradicted, “ There has been money enough in my hands all the time, and more than enough, to amount to the whole consideration of the Wenner farm. I have not paid out, as trustee, any portion of the consideration of the Wenner farm. I have reserved in my possession all the time sufficient to amount to that consideration.” There is no other evidence in respect to payment to and acceptance by the heirs of Thornton of this money. Hence, it is very clear that the findings below on the issues presented by the 4th and 7th replications are correct, unless ■ it can be held that the payment to and acceptance of the money by Gilbert, amounts, in legal contemplation, to a payment to and acceptance by the heirs.
There is no authority for saying that Gilbert is the agent of the parties here complaining of the decree under which he was appointed. They were not present asking his appointment, and they have since done no act by which they should be estopped to question his right to act for them. As trustee, he was the mere custodian of the fund, under the order of the court, holding it for the benefit of those to whom the court might decree it to belong. There is nothing in the record to show that the parties here complaining are responsible.for the money paid by Wenner being put in his hands any more than Wenner is responsible for it being placed there. As attorney at law, he had no authority to act for but a portion of these parties, so it could not be held, on that hypothesis, the payment to him was a payment to them. But no part of the money was paid to him as attorney at law. It was paid to him under the order of the court and to be held and distributed under its direction. The essential elements of an estoppel in pais are entirely wanting. We see no cause to disagree with the findings on these issues.
The result is, the plea is not sustained, and not being sustained the decree must be reversed as to the party pleading. Austin et al. v. Bainter, 40 Ill. 82; Clapp et al. v. Reid et al. id. 121; Ruckman v. Alwood et al. 44 id. 184.
It yet remains to consider the error assigned on that part of the decree which dismisses the bill as to Sarah W. Thornton, Cook and Hochstatter.
This part of the bill, it will be remembered, complains of a decree that was rendered in a proceeding for partition in the circuit court of LaSalle county, wherein Sarah W. Thornton was petitioner and Jesse Q,. Thornton and the unknown heirs of Hiram Thornton, deceased, were defendants.
Two objections are urged against this decree: First, it is objected that the circuit court had no jurisdiction of the persons of the devisees of Hiram Thornton, deceased. Second, it is objected that the decree was fraudulently obtained.
The notice published is not claimed to be objectionable in form. It professes to have been published in a case wherein Sarah W. Thornton is complainant, and William G. Houtze, administrator, with the will annexed, of the estate of Hiram Thornton, deceased, Jesse Q,. Thornton and the unknown heirs of Hiram Thornton, deceased, are defendants. It recites that the unknown heirs of Hiram Thornton, deceased, are not residents of the State, and notifies them of the pendency of the suit. Appended to the notice is a certificate of the publisher of the paper in which it was published, showing that publication was made for the proper length of time.
The only objection attempted to be pointed out is that there was not a sufficient preliminary affidavit to authorize the publication.
The statute in relation to “Partitions,” (Gross’ Statutes 1869, p. 473,) provides:
Ҥ 4.
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Mr. Justice Scholfield
delivered the opinion of the Court:
The first question to be determined is, does the evidence sustain the findings of the court below, upon the issues submitted to it, by this court, for trial?
We have more doubt in regard to the finding upon the issue presented by the first replication to Wenner’s plea than as to either of the other issues. Although Houtze and Wenner both swear that Wenner paid Houtze $4585 upon the sale by Houtze to him of the land described in the plea, there are several circumstances disclosed by the evidence tending to impair the effect of their testimony and to cause it to be regarded with suspicion ; still, we are not prepared to say that we are clearly satisfied the finding upon this issue should be reversed.
As to the findings upon the issues presented by the 4th and 7th replications, the evidence shows that the court below, on the original hearing of the cause, decreed that Hiram T. Gilbert be appointed a trustee to receive the money found to be due from Houtze' and distribute the same to those found to be entitled, to sell certain real estate, pay costs, etc., and also that the trustee’s receipt to Houtze should “constitute, be and operate as a full discharge of said William G. Houtze from all further liability as administrator with the will annexed of Hiram Thornton, deceased, and, also, from all further liability as trustee for the sale of the real estate.” William G. Houtze, pursuant to this decree, paid to the trustee, Gilbert, $8416.26, and took from him this receipt:
“ Received of William G. Houtze, administrator of the estate of Hiram Thornton, deceased, the sum of eight thousand four hundred and ten and twenty-six hundredths dollars in full settlement and discharge of his liability as administrator of the estate of Hiram Thornton, deceased, or as trustee under the appointment of the county court of said county for the sale of real estate, this receipt to be filed, or a duplicate thereof, in the probate court, and an order entered for his final discharge as such administrator and for a release of his securities upon his administrator’s bonds. This money is received by me by virtue of my appointment as trustee in said cause, and upon the express understanding by me, as such trustee, and as attorney for the complainants in said cause, that the payment of said sum is a final discharge of all liability of said Houtze by reason of his administration of said estate, the said Houtze to be protected from liability, if any he has, for the succession tax to the United States government.
Dated, Ottawa, March 22, 1877.
Hiram T. Gilbert,
Trustee of the estate of Hiram. Thornton, deceased.”
Gilbert had been acting as attorney for some of the heirs at law of Hiram Thornton, deceased, but not for all. For some of the defendants who have assigned errors he was attorney. He has paid out a portion of the money he received from Houtze, but has, at all times, retained and still retains in his hands more than the amount paid by Wenner to Houtze. He did not distribute what he paid out, fro rata. He did not pay any of the parties so much of their distributive shares of that fund but what there was remaining more of their shares than their pro rata amount of the Wenner purchase money, if distributed, would amount to. The payments he has made have been made only to a portion, not to all, of the parties claiming as heirs at law of Hiram Thornton, deceased,—and, as such, here complaining or defending. Gilbert, in his testimony, says, and is in that regard uncontradicted, “ There has been money enough in my hands all the time, and more than enough, to amount to the whole consideration of the Wenner farm. I have not paid out, as trustee, any portion of the consideration of the Wenner farm. I have reserved in my possession all the time sufficient to amount to that consideration.” There is no other evidence in respect to payment to and acceptance by the heirs of Thornton of this money. Hence, it is very clear that the findings below on the issues presented by the 4th and 7th replications are correct, unless ■ it can be held that the payment to and acceptance of the money by Gilbert, amounts, in legal contemplation, to a payment to and acceptance by the heirs.
There is no authority for saying that Gilbert is the agent of the parties here complaining of the decree under which he was appointed. They were not present asking his appointment, and they have since done no act by which they should be estopped to question his right to act for them. As trustee, he was the mere custodian of the fund, under the order of the court, holding it for the benefit of those to whom the court might decree it to belong. There is nothing in the record to show that the parties here complaining are responsible.for the money paid by Wenner being put in his hands any more than Wenner is responsible for it being placed there. As attorney at law, he had no authority to act for but a portion of these parties, so it could not be held, on that hypothesis, the payment to him was a payment to them. But no part of the money was paid to him as attorney at law. It was paid to him under the order of the court and to be held and distributed under its direction. The essential elements of an estoppel in pais are entirely wanting. We see no cause to disagree with the findings on these issues.
The result is, the plea is not sustained, and not being sustained the decree must be reversed as to the party pleading. Austin et al. v. Bainter, 40 Ill. 82; Clapp et al. v. Reid et al. id. 121; Ruckman v. Alwood et al. 44 id. 184.
It yet remains to consider the error assigned on that part of the decree which dismisses the bill as to Sarah W. Thornton, Cook and Hochstatter.
This part of the bill, it will be remembered, complains of a decree that was rendered in a proceeding for partition in the circuit court of LaSalle county, wherein Sarah W. Thornton was petitioner and Jesse Q,. Thornton and the unknown heirs of Hiram Thornton, deceased, were defendants.
Two objections are urged against this decree: First, it is objected that the circuit court had no jurisdiction of the persons of the devisees of Hiram Thornton, deceased. Second, it is objected that the decree was fraudulently obtained.
The notice published is not claimed to be objectionable in form. It professes to have been published in a case wherein Sarah W. Thornton is complainant, and William G. Houtze, administrator, with the will annexed, of the estate of Hiram Thornton, deceased, Jesse Q,. Thornton and the unknown heirs of Hiram Thornton, deceased, are defendants. It recites that the unknown heirs of Hiram Thornton, deceased, are not residents of the State, and notifies them of the pendency of the suit. Appended to the notice is a certificate of the publisher of the paper in which it was published, showing that publication was made for the proper length of time.
The only objection attempted to be pointed out is that there was not a sufficient preliminary affidavit to authorize the publication.
The statute in relation to “Partitions,” (Gross’ Statutes 1869, p. 473,) provides:
“§ 4. In cases where one or more of such parties shall be unknown, * * * so that such parties can not be named, the same shall be so stated in the petition.”
“ § 5. All persons interested in the premises of which partition is sought to be made according to the provisions of this chapter, whose names are unknown, may be made parties to such petition by the name and description of unknown owners or proprietors of the premises, or as the unknown heirs of any person who may have been interested in the same.”
And in § 6, that “ when the names of persons having any such interest in such premises are unknown, and when parties whose names are known do not reside in this State or can not be found, they shall have further notice by advertisement, as provided in §§ 8, 41 and 42 of chap. 21, and after such advertisement, the court shall proceed to act in the premises as though the parties had been duly served with summons, or had been notified by their proper names.”
The petition here makes William G. Houtze, as administrator, with the will annexed, of the estate of Hiram Thornton, deceased, Jesse Q,. Thornton, and the unknown heirs of Hiram Thornton, deceased, defendants. It alleges that “Hiram Thornton died testate January 31, 1866, disposing of other of his estate, but leaving intestate the north half of south-west quarter section 5, township 35, range 1, and the north half of north-east quarter section 7, township 35, range 1; that he left the petitioner, his widow, him surviving, but no child or children, nor descendants of a child or children, whereby the petitioner became seized in fee simple of the undivided one-half of said land, and entitled to dower in the other undivided half thereof.”
It further alleges that “ Jesse Q. Thornton is a brother of said Hiram Thornton, deceased; that the petitioner has heard that there are descendants of deceased brothers and sisters of the said Hiram Thornton, deceased, but the names of any such descendants or their or any of their places of residence are and is unknown to the petitioner.”
The petition is sworn to by Sarah W. Thornton, the petitioner; and the following affidavit is also annexed:
“ State of Illinois, \ La Salle County. j ss"
Sarah W. Thornton, on her oath, says that Jesse Q. Thornton and the unknown heirs of Hiram Thornton, deceased, do not reside in the State of Illinois,' according to the best of her knowledge, information and belief.
Sarah W. Thornton.”
Subscribed and sworn to, etc., etc.
That the petition was defective in not alleging that the petitioner knew of no sister of Hiram Thornton, deceased, and of no brother, except Jesse Q. Thornton, may be conceded. But this is a defect that could have been cured by amendment of the petition, and to have availed anything to the defendants should have been taken advantage of in some direct proceeding. We do not conceive that it goes to the jurisdiction of the court.
To give the court jurisdiction over the person of unknown parties, all, as we think, that is necessary is, it shall be made to appear there are unknown parties and the notice required by the statute shall be published as to them.
It does here appear there are unknown parties, and the notice published is broad enough to include them all. Indeed, it is not pretended that in any contingency would the unknown parties, as such, have been entitled to other or different notice from that published.
We think, in a collateral proceeding like the present, the court should indulge the presumption, until rebutted, that those named as parties are the only parties known to the petitioner. If other parties are known to the petitioner whose names are not included in the proceeding, this might furnish a reason why such parties should not be bound by the decree, but no claim of this kind is made here.
The objection that the decree was fraudulently obtained is based on the alleged fact that the petitioner withheld from the court full knowledge of the facts on which her claim of title or dower rested. She alleged in her petition, as has been shown, that Hiram Thornton died testate, disposing of other of his estate, but leaving intestate the land in controversy. This was a material allegation requiring proof, and the court should have required the production of the will. The cause was referred to a master in chancery to take and report proofs, and his report shows that a copy of the will was given in evidence.
However erroneous the ruling of the court may have been in regard to the rights of the petitioner, we are clear in the opinion, the record discloses no such facts as will impeach its jurisdiction on the ground of fraud, and that they can not be inquired into in this proceeding.
Wenner can not now rely on the objection of multifariousness in the bill. His plea amounts to a confession of error, for which, as to him, the decree must be reversed, unless the facts alleged in avoidance of that error shall be found in his favor. But those facts have been found against nim. Besides this, the objection of multifariousness was not urged by him until long after he had answered the bill, and until he filed his amended answer on the first day of the hearing. This was too late. Oliver v. Piatt, 3 How. 412; Nelson v. Hill, 5 id. 127; Gaines v. Chew, 2 id. 619.
What is first above said in regard to the objection by Wenner of multifariousness in the bill, will apply with equal force in regard to his objection of laches in the filing of the bill. Apart from this, also, facts are proved sufficiently explaining and excusing the delay.
The decree as to the defendant in error Wetiner is reversed, and the cause remanded; but in all other respects it is affirmed.
Decree reversed in part, and in part affirmed.