delivered the opinion of the Court:
The question presented by this record, involves the construction of certain sections of the chapter entitled “ Wills,” which do not seem entirely harmonious. They are sections 95 and 101.
An action of assumpsit was brought in the Cook Circuit Court upon a promissory note made by Michael Doyle to John Magee, and against Julius Eosenthal, administrator on the estate of Doyle. The pleas were the general issue — denial of the execution of the note — that it was assigned after maturity and set off.
The jury found for the plaintiff and assessed the damages at six thousand three hundred and thirty-two dollars, on which verdict judgment was rendered.
The following stipulation was entered into, on plaintiff’s motion that the costs be awarded to him:
“ It is hereby stipulated and admitted, that the defendant took out letters of administration on the 15th day of January, 1863, and gave the notice required by the statute, for creditors to present their claims for adjudication, for the March Term of the County Court, 1863; and that the plaintiff, before the commencement of this suit, caused the note upon which this suit is brought, to be presented to the defendant, and requested payment thereof of him, as administrator of the estate of Michael Doyle, deceased, which payment was refused, and that such presentation, demand and refusal were proved by the plaintiff’s witnesses on the trial of this suit. And the said claim was not presented in the County Court, and that no other demand was made than that above mentioned.”
Whereupon, the court rendered the following judgment:
“ That the plaintiff do have and recover of the defendant, as administrator as aforesaid, his damages of $6,332, in form aforesaid, by the jury aforesaid assessed, together with his costs and charges about his suit in this behalf expended, to be paid in the course of administration.”
The cause is brought here by writ of error; defendant assigning as error this judgment for costs against him as administrator.
It is insisted by the plaintiff in error, that all claims must be presented at the term of the probate court, appointed by the administrator, under section 95 of the statute of “ Wills,” for the adjustment of claims against the estate, and if not so presented, the estate is not liable for the» costs on any claim presented thereafter. Scates’ Comp. 1205.
It is very apparent this section has reference alone to claims presented to the probate court.
Section 101 of the same statute provides, that no action shall be maintainable against any executor or administrator for any debt due from the testator or intestate until the expiration of one year after the taking out letters testamentary or of administration, except as is herein excepted; nor shall any person suing after that time recover costs against such executor or administrator, unless a demand be proved before the commencement of such suit; but, in all other cases, both executors and administrators shall be liable to pay costs as other persons. Id. 1206. Section 102 provides, that suits to recover claims shall not be brought, unless within one year next after such executor or administrator shall have settled his accounts with the court of probate.
The proposition of plaintiff in 'error, that no suit can be brought against an administrator, unless he has presented his claim for allowance, to the court of probate, does not seem maintainable, for section 116 provides, that the manner of exhibiting claims against an estate may be by serving a notice of the claim on the administrator, or presenting him the account, or filing the account with the court of probate, while section 117 preserves the distinction between a claim filed, and a suit brought on it.
The case of Reitzell et al. v. Miller, 25 Ill. 67, simply decides that an administrator cannot submit a claim against the estate he represents to arbitration, and that an administrator has no power to admit a claim so as to bind the estate.
The case of Granjang v. Merkle, 22 Ill. 249, refers to sections 95 and 101 of the statute of wills, but no decision is made or opinion intimated, that a suit cannot be maintained under the latter section after a demand is made, for that section expressly so provides, and it is expressly agreed a demand was made before suit brought.
Though there is not perfect conformity between these sections, yet we think they can both be made operative by confining section 95 to cases in the probate court, to which it is evidently directed, and section 101 to cases arising in the Circuit Court, by original suit.
A creditor of an estate is by no means compelled to present his claim to the probate court for allowance,—he can choose his forum and resort in the first instance, to the Circuit Court, if that court has jurisdiction. Many circumstances may concur to prevent an application to the probate court. The Circuit Court is always open to all kinds of actions. If the bar of the statute of limitations can be set up, the party claiming will be defeated, but if it is not, and the estate inventoried has been settled, the claimant can, notwithstanding, recover his judgment and collect the proceeds out of assets thereafter to come to the hands of the administrator. Peacock v. Havens, Admr., 22 Ill. 23; Judy v. Kelley, 11 id. 211; Granjang v. Merkle, before cited.
On careful consideration, we are of opinion that these sections are not so inconsistent that they cannot both be enforced. It is not for us to say the legislature did not design that both should be carried into effect in the manner we have here intimated.
The judgment of the court below is affirmed.
Judgment affirmed.