delivered the opinion of the Court:
If for no other reason, we think the decree of dismissal of the bill must be sustained upon the ground of the inability of an administrator to maintain a bill of this character.
The administrator is the sole representative of the personal estate, but not of the real property. The latter descends to and vests in the heirs, over which the administrator has no control or concern, except a mere power to apply for an order to sell the same, when necessary for the payment of debts. This court has repeatedly decided, that an administrator takes neither an estate, title nor interest in the realty, and that he can not support any possessory or real action, in law.:or equity, for the recovery or maintenance of possession or title, or to clear up title.from clouds from adverse claims; that, if necessary to sell for the payment of debts, he must take the estate as he finds it, and if incumbered, or there be clouds upon the title, sell it subject thereto. Stone v. Wood, 16 Ill. 177; Smith v. McConnell, 17 id. 135; Walbridge v. Day, 31 id. 379; Phelps v. Funkhouser, 39 id. 402; Cutter v. Thompson, 51 id. 390; Le Moyne v. Quimby et al. 70 id. 399; Gridley v. Watson, 53 id. 186.
It is true, that in the latter case, which was a bill by an administrator of a like character with this, the court said, that the bill was obnoxious to a general demurrer on the ground above; but as the bill had been fully answered, and an issue made up .thereon, and a cross-bill filed and fully answered, and an issue made up and tried on testimony taken, the cause was properly heard upon the merits, and the decree there, in favor of the administrator, was affirmed. That case is not to be understood as deciding that an answer is a waiver of such matter as might have been objected to by demurrer.
The general rule is, as laid down in Mitf. Ch. Pl. 157, that “ if a demurrer would hold to a bill, the court, though the defendant answers, will not grant relief upon hearing the cause. There have been, however, cases, in which the court has given relief upon hearing, though a demurrer to the relief would probably have been allowed; but the cases are rare.” Where an objection, as to the jurisdiction of the court that there was a perfect remedy at law, has been made for the first time at the hearing, it has been held that the objection came too late—that it should have been taken either by demurrer to the bill, or by insisting on it as a ground of defense in the answer. Hawley v. Cramer, 4 Cow. 727; Grandin v. Le Roy, 2 Paige, 509; The Bank of Utica v. Merseveau, 3 Barb. Ch. 574. We understand that the case of Gridley v. Watson, supra, was one where the objection was first made at the hearing or in this court. We infer, from the statement there of what the answer contained, that it did not raise any objection to the right of the administrator to bring the bill.
But in the present case, the answer expressly insists on the want of any interest in or power over the real estate in question on the part of the administrator, as a ground of defense to the bill.
The decree will be affirmed.
Decree affirmed.
Mr. Chief Justice Scholfield took no part in the decision of this case.