dissenting. -The only point upon which I propose any remarks is, as to the effect of a judgment of the county court in allowing a claim against an estate. That court has jurisdiction of the subject of claims of the kind, and had of the particular claims involved in this suit, which were allowed by the court, and the administrator directed to make this application for a sale of the real estate to pay them.
This application is resisted by the heirs upon the ground that these debts are not due from the estate. The question is therefore broadly presented, as to the extent to which heirs' are concluded by the judgment of the county court upon matters of debt and account, litigated before them. As to the general rule, I need only refer to the cases of Ralston et al. v. Wood, 15 Ill. 168 ; Gray et al. v. Gillilan et al., 15 Ill. 454, to sustain the conclusiveness of judgments upon parties and privies, and those deriving title through them, upon the matters investigated and involved in the issues in the particular cause. And the policy of the law does not stop at the issues and facts in the record, but extends a like protection to property acquired in executing these judgments, though they be erroneous, and afterwards reversed. See authorities cited in Gilman et al. v. Hamilton et al., 16 Ill., post.
I do not propose again to discuss these questions which have been fully examined and discussed in the above cases, and are too well settled upon authority to require a re-examination.
It is not in the principles, but in their application, that a difference of opinion may exist, and difficulty be found.
If these judgments are hold conclusive upon the heirs, it is contended their inheritance is exposed, after exhaustion of the personalty, to be taken for the debts, to the litigation and adjustment of which they are not parties, and have no opportunity of contesting; and their rights may be sacrificed by the carelessness, negligence, ignorance or fraud of the administrator; and but little hope left to tender years, of being able to expose this, or obtain redress therefor, upon arriving at years of discretion.
On the other hand, it is the creditor’s right to have payment out of the laud, when the personalty fails. If, after he has fully litigated and established his demand by proof, and obtained judgment for his debt, binding and conclusive upon him and the estate as to the amount, it should be again open to be disputed and litigated, and even totally disproved, between the administrator and the heirs, on an application for a sale of the land for its payment, in which he is no party, and has no right, notice or opportunity of being heard, his rights may be sacrificed by the same negligence, ignorance or fraud of the administrator. Administrators would have little knowledge, inclination or opportunity to find and produce the necessary evidence to sustain a creditor’s claims. Yet, as the order of sale is frequently the only means of payment, a defeat of the application would be, in effect, a reversal of the creditor’s judgment. There is thus apparent mischief and hardship either way; but, to avoid one extreme, we should not run into the opposite. The best solution of the difficulty will be found in an adherence to and application of analagous principles, in dealing with and administering this secondary real estate fund of assets.
At the common law, lands were not liable for debt, neither in the life-time nor after the death of the owner. But when by statute it became liable, though in a limited extent, by analogy the liens and principles applicable to such a power and mode of disposition were soon applied to it, and statute debtors held it, and their heirs, devisees and purchasers took it, subject to these liabilities, for the satisfaction of creditors out of the annual issues.
Under our statute, lands are as entirely and completely liable for debts as personalty; and with but two distinctions, that the personalty is the primary fund, and, as such, the title and possession pass immediately to the administrator; the realty secondarily, and therefore it descends and the titles and possession vest sub modo in the heir, subject to be divested, if needed, for the payment of the debts, after exhaustion of the assets of the primary fund.
In the adjustment and recovery of debts and property of the estate, and litigation and settlement of demands upon it, the administrator represents the creditors, heirs, legatees and distributees by privity of estate, or by operation of law, so that his acts are binding, and judgments to which he is a party, conclude him, the creditors, and other claimants of the personalty, even including the sureties on the administration bond. (15 Ill. 168.) These last, it is said in Ralston et al. v. Wood, above, may appeal from judgments on settlement of administrator’s accounts. Nor can there be any doubt of the right of the others to a like appeal from the “judgments, orders or decrees” of the county court, upon like principle, under the 188th section of the statute of wills, (Rev. Laws, p. 564, Sec. 188.) Where does the analogy end, and the distinction begin ? Is it to be found in the fact that the land is but a secondary fund, and as such the title and possession descend to the heir in the first instance ? I cannot perceive any reason from this for a difference or distinction as to the power, authority and obligation of the administrator to settle, nor in the adjustment of the debts, and the application of the primary fund. Nor is any perceivable in the jurisdiction and conclusiveness of the judgments of the court thereon. If this power and jurisdiction is essential for the settlement of estates, to make a finally of the administration, it must extend to and bind the realty as a secondary fund, at some time. What reason or analogy is there to sustain their semi-obligations, binding all interests as to the one fund, and of no obligation as to the other ? The same heirs, legatees or distributees, are owners of the personalty also, subject to the same claim of creditors. If they are bound as to the personalty, it must be because they are privies in estate or law. The administrator does not take the personalty in his own right, but as trustee, for the use of the cestui que trusts, including both creditors and distributees, legatees and heirs. It is true, as respects the personalty, he takes the title and possession with the power and right necessary to fulfill the trust. At the same time and by the same means, he acquires the power and right, without title and possession, over the realty, as part of the same trust, and for the same objects. But the exercise of this power in relation to the realty, depends upon a contingency, the insufficiency of the personalty. Now, this deficiency is exhibited as the natural result of the fulfillment of the trust, in regard to the primary or personal fund. Before this fund can be applied and exhausted, he must ascertain what is due to creditors. Their debts must be proven, established and settled in an authentic and obligatory form, and one that will justify and discharge the administrator in paying; otherwise he would be guilty of a breach of the trust, and a devastavit of the fund. But all courts, I believe, have treated these orders or judgments of probate courts, allowing claims, not only as a justification for the payment, but have enforced them against administrators, and not only as to each creditor with respect to his individual claim, but as among all the creditors and distributees of a surplus. No other rule can be applied, for under it no man would act as administrator in a trust so full of hazard and perplexity, nor could any creditor or distributee receive his own with any confidence or assurance of keeping it.
I am reasoning from anology. When the law subjected lands to the payment of debts, through administrations, and to the same extent as the personalty, it simply postponed or deferred that charge upon it, until the other fund was ascertained to be insufficient, and which the administrator is required to make appear in a suit against the heir for the sale of the land. And in order to do this, he must show that he has made and filed an inventory, an appraisement bill, and a sale bill in the county court, and that he has applied the proceeds of the personalty, or such part as have come to his hands, towards the payment of the debts. Rev. Laws, 1845, p. 559, Sec. 108. In order to this, he is, by section 103, to make a just and true account of the personal estate and debts. Shall he be required anew, and like the creditor, to produce proof to establish every debt allowed by the county court ? No man would accept an administration on such terms, unless with a view to defraud all parties.
By section 125, page 562, the county court is required to make out “ an abstract from its records, of the debts and credits of such estate, and of the lands owned by such testator or intestate, from the inventory of such estate,” and this shall be presented to the court on the application for the sale.
So far as these debts have been allowed by the court and passed into judgment, surely the administrator can be required to present no further or better proof than that judgment. For by section 95, the administrator shall give a general notice for filing claims, and all claims filed under it, and all that are filed upon special notice to the administrator, as by sections 116, 117 and 118, are regarded as regular suits, and full proofs required, and judgments given, and these, the administrator is, by section 120, required to pay. The county court may compel him to apply for an order of sale, (Sec. 114,) and he is chargeable with all the real estate that he can recover upon due and proper diligence; (Sec. 92.) The county court shall make an entry of all demands allowed, and file and preserve the papers, and if the administrator pay any demand before its allowance, he is required to establish the validity of the claim by the like evidence as is required in other cases. (Sec. 122.)
With all these safe-guards to creditors and heirs, is also the additional one, of appeal from “ all judgments, orders or decrees” of the county court, “ in favor of any person who may consider himself or herself aggrieved by any judgment, order or decree of the court.” (Sec. 138.)
While the heir does not derive Ms right or title to the realty, through the administrator, he yet holds the land subject to the trust in the hands and power of the administrator, and so I deduce, by the strictest analogy, a privity in estate for the purposes of the administration. I am not disposed 'to avoid, explain or modify the consequences to which this analogy leads me; and that is the conclusiveness of these judgments upon the heirs, and the sale of their estates. The stability and confidence of human affairs demand that judgments of courts possess this character, and have this effect upon the subject matter, as among all the ¡parties and privies whose interests are involved. And it Avould seem to me from a careful examination of the decisions of the American courts, that the distinction taken, has been predicated upon the supposed importance and character of the property itself, rather than the relationship of its owner. They have looked to the inheritance under the law of primogeniture, as a semi-sacred property, and have forgotten the owner as a mere distributee of the surplus of the personalty under the English rule, and of the Avhole, personalty and realty, under ours. And I am unable, upon any principle of law, or rule of analogy, to give these judgments any effect at all against the heir, Avithout extending a like and equal effect as to both funds, realty as well as personalty.
The first case on this subject, which I have found, and I suppose the precedent and leading case on this subject, was decided in 1810, by Judges Tucker and Fleming. (Mason's Devisees v. Peter's Administrators, 1 Munf. 444.) They held, that a judgment against the executors was no proof against the devisees of the land, nor the heir, whatever might be the case as to personalty, and it Avas put upon a want of privity. This last doubt as to privity in relation to the personalty, seems to have been overruled or settled othenvise in Atwell's Administrators v. Milton, 4 Hen. and Munf. 255, by holding the approval of the court to prima facie evidence.
Chief justice Marshall held a decree against the personal representative, as prima facie only as to the heir and devisee, and not conclusive. He admits that the administrator completely represents the estate for the payment of the debts, and is the proper person to contest the claims of creditors; yet its conclusiveness is denied, because he is not party to the suit, cannot controAmrt the testimony, adduce evidence iff opposition, or appeal from the judgment. Then, again, the administrator may feel no interest in defending the suit, nor choose to incur the trouble and expense attendant upon a laborious investigation. Because the heir does not claim under the administrator, it is unreasonable he should be bound or estopped by a judgment against him. Garnett v. Macon, 6 Call. 337, 8.
For like reasons, the case in 1 Munford, 444, was followed and approved in Neal v. McCombs, 2 Yerg. 11, against the dissenting opinion of Haywood, J., Avho portrays the inconveniences, injustice and evils to the opposite interests, from the adoption of this rule. He puts it, I think, upon the true ground, by leaving it open to attack for fraud, as other judgments. The same doctrine is strongly implied in the principle laid down in Grout v. Chamberlin, 4 Mass. 611,12, where it is held that an administrator de bonis non cum testamento annexo, cannot maintain a writ of error to reverse a judgment recovered by the original executor—and that such judgment is no bar to an action for the same cause, by the administrator. And so again in Thayer et. al. v. Hollis, 3 Met. 369. But the former was put upon a strict common law technicality, and the latter upon a presumption of fraud in the administrator, in not relying upon the statute of limitation to bar a stale demand. Although the question was not presented in the case of Scott v. Hancock, 13 Mass. 162, the reasoning of Jackson, J., tended strongly to this view of the subject.
Chancellor Kent, in Mooers v. White, 6 Johns. Chan. 385, quoted and approved the language of Jackson, J., though the decision was put upon a different ground, the staleness of the demand.
The case in 1 Munford, was referred to as law by Sudam Senator, in Osgood v. Manhattan Company, 3 Cow. 622, and again arguendo by the Chancellor in Scott v. Young, 4 Paige Chan. 556.
The case of Callahan, Administrator, v. Griswold, 9 Mo. 792, seems to favor the same doctrine; but the judgments in that case seem to have been fully impeached for fraud. Extreme cases form dangerous precedents. Such seems to have been the beginning of this series of decisions. There was no other proof but the judgment, taken upon a default, and evidently the judges believed there had been no testimony. The administrator had, by his negligence in suffering judgment, admitted assets; the creditor had, therefore, a remedy against him at law, and in refusing relief, on that account, by marshaling the assets on the land, the court deny the liability of the heir to lose his inheritance on a judgment against the administrator.
The case in Missouri was an apparently premeditated fraud, and, therefore, worse material for manufacturing a leading doctrine. The case before us is not free from the same influence. We see just enough to desire to look deeper into it. We know enough to think investigation called for. Ten years after an administration had been aj)parently settled, judgment is obtained on a note of intestate, bearing date after his death, and another large judgment, for misrepresentation, or for the consideration paid on rescinding a conveyance of land. We naturally desire to look into and inquire about the transaction. But it is impossible to do so, without laying down a general rule, which must apply equally to all other cases, even those where we should not hesitate a moment to sanction all that had been done.
Some of the courts have very consistently carried out the legitimate analogies of the rule, and held that sureties of the administrators were not concluded by the judgments of probate courts, fixing the indebtedness of their principal. McKellar v. Bowell and Campbell, 4 Hawk. L. and Eq. 37; McBride v. Clark et al., ibid. 43 ; Armistead v. Hanamond, ibid. 340.
This court held otherwise, in Ralston et. al. v. Wood, cited above. So held in Kentucky, in Hobbs and another v. Middleton, 1 J. J. Marsh. 179, and many others, I need not cite. In Judge of Probate v. Robbins et al., 5 N. Hamp. 246, the court say, the decree of distribution to the widow as an heir, cannot be collaterally inquired into by the sureties of the administrators. And similar rulings are made in Pennsylvania. This was applied to an order of the court of ordinary for sale of land, as conclusive upon the heir in McDade, Administrator, v. Burch, Administrator, 7 Georgia, 559. So the order of the orphan’s court, on settlement of a guardian’s account, was held conclusive upon the subsequent guardian and the ward. Blount and wife v. Darrach, 4 Wash. C. C. 657. I cannot predicate any distinction upon a supposed difference between personal and real property, or the primary or secondary fund. Frequently the value of the realty is nothing in comparison with the personalty. Yet, before the heir can have either, disencumbered, the debts must be settled. If those having interests cannot trust, and are not to bo bound by the acts of the administrator, and the judgments of the proper courts, upon the several transactions as they arise, there is no alternative, but a bill in equity, to make all parties together. This would be absurd.
The administrator is clothed with the power, and is charged with the duty, to make these statements, and under the inspection and sanction of the court; and they ought and must bind all interests affected, or they should bind none. They may be impeached for fraud. But until so inqpeached for fraud, or grossness of malpractices amounting to fraud, they should conclude all interests affected, and have their legitimate fruits in a due execution, by sale of property.
I agree with the court in giving the judgment all the effect they assign to it, but would likewise give it further full effect until impeached or reversed.