dissenting:
I am 'unable to concur in the foregoing decision. We have in this case a dispute between the administrator of an estate and another involving the title to personal property. The probate court is without jurisdiction to adjudicate any such issues under the provisions of sections 81 and 82 of the Administration Act (J. & A. 130, 131). In Dinsmoor v. Bressler, 164 Ill. 211, the court said: “The summary proceeding in the probate court to compel the production and delivery of property ‘is not the proper remedy * * * to try contested rights and title to property between the executor and others. ’ * * * Nor does the power conferred upon probate courts to subpoena and examine parties alleged to conceal or withhold property of the estate authorize such courts to try the title to the property in dispute.” This case was cited with approval in Martin v. Martin, 170 Ill. 18, and also in Moore v. Brandenburg, 248 Ill. 232. In the former case the court said: “The primary purpose of the statute is to discover assets of estates, and the court is authorized to make such order in the premises as the case may require. The statute is not designed to afford the means of collecting debts due to estates, * * * nor to try contested rights and title to property between the executors and others. * * * The mere fact that one party to the controversy is an executor will not justify depriving the other party of a trial by jury or authorize his imprisonment. ’ ’
In Rone v. Robinson, 188 Ill. App. 438, a citation was issued under the provisions of sections 81 and 82, directing and requiring appellee to surrender a certain certificate of deposit. The evidence showed that the intestate was the owner of $1,200 in money which he wished to give to his daughter, the appellee. He deposited it in the bank, taking a certificate reading: “Martha E. Bobinson (appellee) has deposited in this bank $1,200, payable to herself in current funds. * * * In case of the death of Martha E. Bobinson, before the death of Ivan Jackson (intestate), this certificate of deposit becomes the property of Ivan Jackson.” The intestate gave this certificate to appellee and told her to keep it as it'was hers. After the intestate died, appellee claimed to be the owner of the certificate while appellant, the administrator of the estate of the intestate, claimed it had never been delivered to her. The court said that the issue presented “was purely a contest of the right of ownership of this certificate, and being a contest as to its ownership, we do not think that the citation, under sections 81 and 82, is the proper remedy to try a contested question of this ■ character. * * # The court did right in dismissing the petition.” To the same effect are Hays v. State Bank of Saybrook, 202 Ill. App. 535, and Gulzow v. Fillwock, 205 Ill. App. 366.
In none of the cases referred to were the facts involved entirely like those involved here. But there would seem to be no logical distinction between a gift claimed by the respondent from the deceased, as in Rone v. Robinson, supra, and one claimed by the respondent from the administrator, as in the case at bar, where the latter is the sole heir and there were no claims involved in the estate.
It appears that in this case no claims had been filed in the estate up to the time the evidence was in and the cause submitted to the circuit court although the hearing in that court occurred on July 1, 1918, and the petition of the administrator in the probate court had been filed since January 28, 1915. After the close of the case, counsel for the petitioning administrator admitted that the latter could have made a, valid gift of the property in question, and stated that the issue presented was one of fact as to whether he had made such a gift. The court then pointed out that that involved a question of the title to the property and stated that the respondent had a right to have that question tried in a proper tribunal, that it presented an issue for a jury to determine, and he intimated that the circuit court could not determine such a dispute under the provisions of sections 81 and 82. The trial court said further: “Where there are no claims made against the estate, the sole and only heir may give away the personal property and pass good title. Whether or not he did in this case, I have not the power to decide. On that question she (respondent) has a right to a trial by jury.” Thereupon, on its own motion, the court continued the cause so as to give the petitioner “ an" opportunity to publish and see if you can find some claims against the estate.” At a subsequent hearing evidence was admitted involving claims which had been filed in the probate court in the meantime. In my opinion this was error. The statute of limitations had run against the filing of claims in the probate court. This was true although no publication for claims had been made, for the statute begins to run from the. date of the letters of administration which was more than 3 years before the time of the hearing on this petition in the circuit court. People v. White, 11 Ill. 341. Section 70 of the Administration Act (J. & A. ft 119) provides that all claims not' exhibited within one year “shall be forever barred unless creditors shall find other estate of the deceased not inventoried or accounted for. ’ ’ While -the earrings involved here had not been inventoried they were “accounted for” so far as the administrator was concerned, for his original petition in the proceeding at bar was filed in the probate court soon after his letters were issued. If the issue of fact presented here were determined, in a proper proceeding, in favor' of respondent she would necessarily be held to have “accounted for” the property in question at the time the period of limitation expired and no claims had been filed. Claims thereafter filed could not be allowed and satisfied b3r means of these earrings as unaccounted for property. Auburn State Bank v. Brown, 172 Ill. 284. The petitioner was in a position to make a valid gift of these earrings inasmuch as he" was the sole heir of the estate and no claims were filed within the period allowed by law. The question of whether he did make such a gift presented an issue which the probate court had no jurisdiction to determine and such jurisdiction could not be conferred by the filing of claims subsequently. Those claims would be subject to a plea of the period of limitations provided in section 70, if the alleged gift was made as claimed by the respondent. If it established that the respondent is the donee or assignee of the petitioner as to these earrings, she should have the same privilege of resisting these claims by interposing the defense' referred to as the administrator might have had, notwithstanding the fact he did not see fit to use it.
Furthermore, the claims brought into this case do not have the appearance of bona fide claims. It is quite apparent from the record that those whose claims were filed after this cause was continued by the circuit court to see if the administrator could not “find some claims against the estate,” as the court put it, did not “find other estate of the deceased.” Both claims are by doctors for professional services rendered deceased. They are sworn to before one of the attorneys of the administrator, as a notary public. The administrator filed his appearance and consented to the allowance of the claims and directed the clerk of the prob'ate court to charge the fees for filing the claims to the estate. This attempt to invest the court with jurisdiction should not prevail and in my opinion-the petition should have been dismissed for lack of jurisdiction.