delivered the opinion of the court:
The only question for our decision is whether the answer showed a sufficient reason why the defendant should not be ordered to sell the real estate, as prayed in the petition, and for the purposes of that decision the allegations must be taken as true. The presumption must be, in the absence of anything appearing to the contrary, that the sale and conveyance of all of the lands except the forty acres occupied by the widow as a homestead was regular under the power contained in the will, and hence the only question here is, whether the error last assigned should be sustained.
The defenses set up in the answer are two: First, that the judgments upon the claims of the petitioners were entered more than twenty years prior to the filing of the petition, and therefore barred by the twenty years Statute of Limitations; and second, that upon the sale and conveyance of all the other real estate and the distribution of the proceeds the respondent was discharged, as executor, from further administration.
The language of the Statute of Limitations relied upon is as follows: “Judgments in any court of record in this State may be revived by scire facias, or an action of debt may be brought thereon within twenty years next after the date of such judgment, and not after.” Starr & Cur. Stat. (2d ed.) chap. 83, par. 26, p. 2643.
Treating the allowance of the claims of petitioners as judgments in a court of record, by the express language of this section they could not be revived by scire facias, nor could an action of debt be brought upon them at the time of the filing of this petition. Does it necessarily follow that they cannot be enforced by a petition of the executor to sell land to pay them after the expiration of twenty years from the allowance of the claims? In other words, is the right of an administrator to sell land to pay debts absolutely barred by reason of the foregoing twenty years Statute of Limitations? The statute authorizing and making it the duty of an administrator to sell real estate to pay debts of the intestate after the personal assets have been exhausted, fixes no time within which the application shall be made. We held in the early case of McCoy v. Morrow, 18 Ill. 519, that by analogy, as a general rule, the application must be made within seven years after the allowance of the claims, but it was there said (p. 524): “The creditor, under our law, has ample means of, without delay, compelling administration, and, through administration, subjecting the debtor’s estate, real and personal, to the payment of the debts against the estate. If he fails to do so within a reasonable time he will be held to have waived his lien against property descended, and the grantee of the heir will take the title discharged of the lien. It is not necessary in this case to decide what shall líe a reasonable period of time for that purpose,” etc. In Rosenthal v. Renick, 44 Ill. 202, it was again held that in cases where the delay of the creditors is unexplained, even where the title is still in the heirs, the period of seven years from the death of the intestate may be properly adopted, by analogies of the law, as a bar to such' liens, and that even a shorter limitation may be applied to protect innocent purchasers against the secret lien, and it was said “the facts o,f each case must decide the limitation to be applied,” and in that case the application was held to be within a reasonable time long after the expiration of the seven years. To the same effect is Moore v. Ellsworth, 51 Ill. 308, where the application was held to be-in due time though more than nine years had elapsed.'
The rights of creditors of an intestate’s estate to enforce the collection of their claims against real estate is defined in VanSyckle v. Richardson, 13 Ill. 171, as follows (p. 173): “Under our statute the lands of an intestate are held subject to the payment of his debts. After the personal estate is exhausted it is made the duty of the administrator to apply to the proper court and obtain a license to sell so much of the real estate as will be sufficient to discharge the residue of the debts. The proceeds of the sale are declared to.be assets in the hands of the administrator. (Rev. Stat. chap. 109.) Creditors are not compelled, as at common law, in order to procure satisfaction of their debts* where there is a deficiency of assets for the purpose, to pursue the lands into the hands of the heir, opto charge the heir with its value in the case of an alienation by him. They have only to establish their demands against the administrator and he is required to make payment out of the personal estate, and, when that proves insufficient, to convert enough of. the real estate into assets to meet the deficiency. The-statute, in effect, reserves a lien on the lands of an intestate to secure the payment of any excess of indebtedness beyond the proceeds of the personal estate. This lien is to be enforced by the administrator for the benefit of the creditors generally. The lien, however, is not perpetual, but may be lost by gross laches or unreasonable-delay. The real estate descends to the heir with this charge resting upon it. He cannot encumber or alien it to the prejudice of the rights of creditors. He acquires a vested, but not an absolute, interest in the land. He takes a defeasible estate, liable to be defeated by a sale made by the administrator, in the due course of administration. He has no just claim to the land until the indebtedness of his ancestor is fully discharged. He acquires an absolute title only to what remains after the debts are extinguished,”—citing authorities.
As shown both by the petition and answer in this case, the forty-acre tract was held and occupied by the widow from the decease of the testator until her death, being at no time of the value of more than $1000, and during that period that homestead could not have been sold by the executor to pay debts. “No sale can be rightfully made of the homestead by the administrator of the deceased householder to pay his debts when the property does not exceed in value $1000, until the exemption in favor of the widow and minor children has been in some mode terminated, and if such a sale is made, a court of equity has the power to set the same aside at the instance of the homestead occupant. The homestead, when not exceeding $1000'in value, cannot even be sold subject to the homestead right.” (Hartman v. Schultz, 101 Ill. 437, followed in Mueller v. Conrad, 178 id. 276.) It is equally well settled (as it is, in effect, held in these cases,) that when the homestead right ceases to exist the property so held becomes subject to the payment of unsatisfied claims against the estate, and it is the right and the duty of the administrator to proceed to sell the same for the payment of such debts.
It is perfectly clear from what has been shown, that from the death of the intestate, Thompson B. Lanham, until the death of his widow, the forty acres occupied by the latter as a homestead could in no way have been reached by the petitioners for the satisfaction of the unpaid balance of their claims by enforcing- a sale thereof, either absolutely or subject to the homestead rights of the widow, and it is equally clear that after her death they were entitled to demand of the executor that he proceed to sell the same, unless they were barred of that right by the lapse of time. There is no more reason for saying that by analogy the right was absolutely barred by the twenty years Statute of Limitations, than for saying it was barred absolutely by analogy to the seven years Statute of Limitations. In either case, the facts and circumstances being such as that the remedy to enforce the collection of the claims was suspended or the delay excused, neither statute could be applied by analogy.
In Bursen v. Goodspeed, 60 Ill. 277, we reiterated the doctrine announced in McCoy v. Morrow, Rosenthal v. Renick, and Moore v. Ellsworth, supra, and held that the land sought to be sold to pay debts, being occupied as a homestead by the widow, the value of which was less than $1000, the sale of which during the existence of the homestead and dower rights would have yielded little or nothing for the satisfaction of the debts, could, under the circumstances, be sold after the death of the widow, even though some twelve or thirteen years had intervened between the death of the intestate and the filing of the petition, and it was there said (p. 281): “There were here both the rights of a homestead and of dower in the land, the former to continue, if there was occupancy of the premises, until the youngest child should become twenty-one years of age, and until the death of the widow, unless extinguished by the payment of $1000; and by virtue of the latter right the widow was, by the statute, entitled to retain possession of the land until her dower should be assigned, which appears never to have been done. The land descended to the heirs subject to the debts. The amount of the indebtedness was so large in comparison with the value of the land that it may be said that, aside from the homestead right and the enjoyment of the rents and profits until the land might be sold to pay debts, the heirs had no substantial interest in the property; and as it was no interference with the full enjoyment of the rights of homestead and dower and of the rents and profits, it is not perceived wherein there was injustice to any one in consulting the interests of the creditors by delaying to enforce a sale until those rights might become extinct. It is quite evident that forcing the land to a sale at public auction, encumbered, as it was, with the claims of homestead and dower, would have been a palpable sacrifice of the creditors’ rights in the land; that they would not have derived any appreciable benefit from the sale. As expressed in the petition of the creditors against it, the heirs would have lost the land and the creditors their debts. What just cause of complaint have the heirs that that result was not precipitated? We think it unreasonable to hold the creditors bound to resort to a fruitless and destructive sale.”
• In the later case of Judd v. Ross, 146 Ill. 40, the petition was by an administrator de bonis non to sell sixty acres of land, twenty of which had been assigned to the widow as and for her dower in the real estate of which her husband died seized, and forty of which, being of less value than $1000, she occupied as her homestead. Other lands had been sold by the former administrator and the proceeds applied upon the fourth class claims, amounting to $1404.40, leaving a balance of principal unpaid of $660.90, to pay which latter sum and accrued interest a second application by the administrator de bonis non was made. As shown by the facts of the case, these claims had been probated and allowed in the county court at least twenty-four years prior to the filing of said last petition, but the widow had continued to occupy the premises as dower and homestead until her death, which occurred in the year 1892, shortly prior to the filing of the petition. The heirs of the intestate answered. One of their claims was, that the administrator de bonis non had not been legally appointed. They denied the validity of the claims against the estate and claimed that they were barred by lapse of time. It was held that the administrator de bonis non had been legally appointed and that the validity of the claims had been determined upon the former application to sell land to pay them, so that that question was res judicata, and could not be questioned upon the application to sell the remaining lands set off to the widow as her dower and occupied by her as a homestead; and we said (p. 49): “The only remaining question to be considered is whether the creditors whose claims were allowed against the estate have lost the right to enforce payment by sale of real estate, by delay and lapse of time. It will be observed that the sixty acres of land which the petitioner now seeks to obtain a decree to sell were set off to the widow as her dower. The forty-acre tract was the homestead of Patrick Ross when he died, and the estate of homestead became vested in the widow after his death. Prom the time the land was set off to the widow she occupied it, in person or by tenant, until her death, in 1892. As soon as the widow died and the land became released from the dower of the widow and her homestead rights by her death, this proceeding was instituted to subject the land to sale to pay the unpaid balance due upon the debts of the deceased. The statute has not provided a period of limitation within which an administrator must file a petition to sell lands to pay debts, but in analogy to our Statute of Limitations relating to the lien of judgments, the period of seven years has been adopted as the proper time within which the application should be made. This may be regarded as the general rule, But if the delay is satisfactorily explained, the mere lapse of time will not bar an application for leave to sell land to pay debts. Here, the fact of the land having been set off to the widow as dower and forty acres of the sixty encumbered with the right of homestead, and being in the occupancy of the widow by herself and tenants, was a sufficient reason why proceedings were not instituted to subject it to sale by an administrator. Had it been subjected to sale, encumbered, as it was, with the widow’s dower and homestead, nothing would have been realized from the forty-acre tract, and the other twenty acres would not have sold for more than would, in all probability, pay the costs. The proceeding would therefore have resulted in no benefit to any one. The creditors would have secured nothing and the land would have been sacrificed. Had the land been forced to sale at auction, encumbered as it was, it could not have been sold for more than a nominal sum. Moreover, no person has acquired any interest in the land, by purchase from the heirs or otherwise, but, on the other hand, it remains now in the same condition as it did at the death of Ross. Under such circumstances, as was held in Bursen v. Goodspeed, 60 Ill. 277, we think the delay was explained, and it should not work a bar to a proceeding to sell the land after the dower and right of homestead had been extinguished.” The decree of the county court denying the petition was accordingly reversed and the cause remanded.
The rule to be applied in such applications is rather the doctrine of dachas than of legal limitation, and the last cited case is decisive that mere lapse of time between the allowance of claims in the county court and the filing of a petition to sell land to pay them, if satisfactorily explained, is not a bar to the proceeding, even though more than twenty years has elapsed.
The case of Barnes v. Maring, 23 Ill. App. 68, is cited as authority for the contention that the claims of petitioners in this case were barred by the twenty years Statute of Limitations. The question with which the court was there dealing was entirely different from that which is presented here. There, as shown by the facts, the widow seeking to open up the administration had no excuse whatever for the many years of delay. The administration had been closed by a final report to the county court more than twenty-five years prior to the application.
The second question is, does the answer sufficiently show that the respondent had been discharged as executor at the time the petition was filed? While, as we have said, the demurrer admits the facts well pleaded in the answer it does not admit mere conclusions of the pleader, and the familiar rule that averments are always to be taken most strongly against the pleader must also be recognized in determining whether a demurrer is well taken. The answer in this case does not show that, any final settlement of the estate has ever been made, or that any report was ever made by the respondent to the county court as to his administration. He simply says that the then judge of the county court told him that he was discharged from further administration, and that from thence on he had believed that he was discharged as executor of said estate. It cannot be seriously insisted that creditors of an estate would be concluded by what the county judge said to the administrator, in or out of court, not by way of ruling upon any matter connected with the administration, or by what the administrator may have believed as to his being discharged. There is no similarity between the facts averred in this answer on this branch of the case and People ex rel. v. Kohlsaat, 168 Ill. 37, cited as holding that no formal order of discharge is needed.
We are unable to agree with the judgments of the circuit and Appellate Courts as to the sufficiency of the answer of the .respondent, and are of the opinion that the ruling of the county judge upon the same should be sustained. The judgments of the Appellate and circuit courts will accordingly be reversed, and the cause will be remanded to the circuit court of Vermilion county for further proceedings in conformity with the views here expressed. x
„ , 7 , , Reversed and remanded.