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sacrifice thereof, after my decease, and the proceeds arising therefrom, after the payment of my just debts shall be distributed equally by my executor among my five children."
Two of the children are infants of the ages of one year and five years respectively. Under the statute of Illinois, the first infant has twenty-one years in which to bring an action to contest the validity of the will. The executor petitions the court for an order to sell the testator's realty in accordance with the provisions of the will; the proper order of sale is entered by the probate court; and all the essential legal requirements, such as notice of sale to the interested parties appointment of a guardian ad litem to represent the interests of the infants, are complied with. A sale of the real estate is made, and the funds arising therefrom are properly accounted for by the executor. Did the purchaser at this sale secure a good marketable title? Was the interest of the infants in the real estate of their deceased father fully and for all time released? What would happen to the purchaser's title if the infants, upon attaining their majority (or either of them upon attaining his or her majority) filed a bill to contest the validity of the testator's will, and proved the testator to be of such unsound mind as to lack testamentary capacity so that the court should set aside the will? Was not the execuor's authority to make the sale derived from the will? Did not the court acquire jurisdiction to authorize the executor's sale as the result of the probate of a supposedly valid will ?
In considering the legal problems raised by the foregoing questions one must bear in mind the twofold capacity in which an executor acts, and the different types or classes of wills. An executor may act in a double capacity, as executor by virtue of his office, ang as agent or trustee under a warrant of attorney. In his latter capacity as trustee, as in the case of a power given to sell land, if he acts, the trust imposed upon him is of a special and confidential character and cannot be delegated. It is only the powers and duties of the executor, as such, resulting from the nature of his office, which devolve upon an administrator with the will annexed. The statutory provision to the effect that"When there is no executor named in the will, or the executor named therein, dies, refuses to act or is otherwise disqualified, the court shall commit the administration of the estate unto the widow, surviving husband, next of kin or creditor, the same as if the testator had died intestate.
3. Hall v. Irwin 99 Ill. 529. 4. (1921) Cahill Ill. Rev. St. Ch. 3 sec. 1.
confers upon the person appointed by the court none of the powers of an executor-trustee. To carry out the trustee duties created by the testamentary instrument, the administrator with the will annexed petitions the court to appoint a special trustee."
When the executor is acting by virtue of his office and sells real estate of the testator to pay just debts of the decedent no question can arise as to the validity of the title he conveys to a purchaser of the decedent's real estate when all the legal requirements for making such a sale are performed. The statutory regulations which make the decedent's debts a charge upon the realty of the estate if the personalty is not sufficient to make assets to pay those obligations are clear.
"When the executor or administrator has made a true and just account of the personal estate and debts to the county court, and it is ascertained that the personality of a decedent is insufficient to pay the just claims against the estate, and there is real estate to which such decedent had claim or title, such real estate, or such portion as may be necessary to satisfy the indebtedness of such decedent, and the expenses of administration, may be sold in the manner herein provided."
The next section of the statute provides for a petition by the executor for an order to sell and requires the making of all legally interested persons parties defendant.
“When it appears that any of the persons required to be made parties defendant, who have been served with summons or notified as aforesaid, are minors, under the age of twenty-one years if males, or eighteen years if females, without a guardian resident in this state, or are persons having conservators, shall not be personally served with summons or shall not appear, the court shall appoint a guardian ad litem who shall appear and defend in behalf of such minor, and be allowed such compensation as may be fixed by the court."?
In the case of Gibson v. Roll, decided under the statute of 1845 (which statute is not materially different from the present Illinois statute), infant heirs were held bound by an administrator's sale of realty, though not made parties to the proceedings. The court based its decision upon the ground that this "was a sale of an administrator of the estate, descended to the heirs, and not for their benefit, but to enable the administrator to pay the debts of the ancestor.”
5. Stoff v, McGinn 178 III. 46. 6. (1921) Cahill Ill. Rev. St. Ch. 3 sec. 99. 7. (1921) Cahill Ill. Rev. St. Ch. 3 sec. 107 8. 27 Ill. 88.
"All such sales of real estate shall be made and conveyances executed for the same, by the executor or administrator applying for such order, and shall be valid and effectual against the heirs and devisees of such decedent, and all other persons claiming through or under him or them."9
In construing the sections of the statute relating to the sale of a decedent's real estate for the payment of his debts and the expenses of administration, the courts have generally held that the purchaser buys at his peril, unless fraud or mistake enter into the sale.10 So far as the decedent's real estate is concerned, the allowance of a claim against the decedent's estate is merely prima facie evidence of the debt due from the estate." And a judgment against an administrator is only prima facie proof against an heir in a proceeding by the administrator to sell land to pay debts.12 An executor's sale will not be set aside because made for unpresented and unallowed debts if the executor has been notified of the existence of such debts.18 A bona fide purchaser of the decedent's realty is not adversely affected, although there were no debts at the time of the sale, if the court had jurisdiction of the subject matter and the parties."
In the last named case of Bowen v. Bond there was a petition by an executor for an order of sale of the testator's realty to pay claims against the estate. The petition for sale was entered and allowed by the court in 1848, and four years later the sale of the real estate was made. The evidence showed that although there had been an increase in the assets of the estate during the interval of four years this increase was not sufficient to discharge the debts owing by the estate. The court in a dictum assumed there were no debts owing at the time the sale was made, and asserted that this fact would not make the sale void. The court quoted from Stow v. Kimball15—
“Where two sales at different times were made under an administrator's order of sale, and it was claimed that enough money had been raised by the first sale to pay all the debts, and that consequently the power of the administrator was exhausted, there remaining no legal object for which the land could be sold. The court had complete jurisdiction of the matter and in the exercise of that jurisdiction it decreed that all of the lands mentioned in the petition should be sold to pay the debts of the estate. If there was jurisdiction in this court to make this decree, it furnished authority to the administrator to make the sale." It was regarded as too prejudicial in such administration sales to require the purchaser to see there were debts owing by the estate sufficient to require the sale of the particular land.
9. (1921) Cahill Ill. Rev. St. Ch. 3 sec. 109.
10. Walden v. Guildey 36 Ill. 523; Bishop v. O'Connor 69 III. 431 ; Selb v. Montague 102 Ill. 446; lilley v. Bridges 105 Ill. 336.
11. Ford v. First Nat. Bank of Stuart lowa 201 111. 120.
Under the Indiana statute
“If the personal estate of a decedent shall be insufficient for the payment of the liabilities thereof, the real of the deceased, if any, shall be sold to make assets for the payment of such liabilities."16
After specifying the steps to be taken by the executor or administrator to secure a valid order for the sale of the real estate of the decedent, the statute provides that
"If it shall appear that any of the heirs or devisees of the decedent are minors, the court, before hearing the petition of the executor or administrator for an order of sale, shall appoint a guardian ad litem for such minors.'
The Indiana court, though holding that the purchaser of a decedent's realty sold to make assets for the payment of the estate's liabilities acquires a title free of the claims of infant heirs and those claiming through them, is very strict in requiring that all the legal steps shall be taken by the executor or administrator making the sale. If the required statutory notice is not given to the minors, the sale will be void as to them.18 And a guardian ad litem appointed to represent the interests of the minor cannot waive the service of notice on the minor.19 Where no guardian ad litem is appointed for a minor heir, the heir may, after minority, bring an action to review and set aside the order of sale.20 The petition for an order of sale must clearly show a necessity for selling the land. Real estate can only be sold to pay the debts of the decedent when the personal estate is insufficient, 21 or for the purpose of obtaining means to pay the expenses of administration.2
In one other instance, where the executor is acting by virtue of the power conferred upon him as an officer of the court, there is
16. Burns Ind. Rev. St. Sec. 2848.
21. Newcomer v. Wallace 30 Ind. 216; Edwards v. Haverstick, 47 Ind. 138.
22. Dunning v. Driver 25 Ind. 269; Falley v. Gribling 128 Ind. 110.
little doubt that the executor may make a valid conveyance of a decedent's real estate. By statutory enactment, the executor or administrator may sell lands which have been partly paid for by the decedent.
"In all cases where a decedent is seized of a legal or equitable title to real estate, the payment whereof has not been completed, and the estate of such decedent is unable to make a complete payment therefor, with advantage to such estate, the administrator or executor may sell or dispose of such real estate upon the order of the county court, and the money arising from such sales shall be assets in the hands of such executor or administrator as in other cases.
The provisions of the Indiana statute in reference to the sale of a decedent's uncompleted contract for the purchase of lands are similar to those of the Illinois enactment.
“If any such contract was for the purchase of land, and there are payments due or to become due thereon, and the court is satisfied upon such executor or administrator filing his petition therefor, verified by affidavit, that it would be more to the advantage of the persons interested in such estate, that the interests of the deceased therein, under such contract, should be sold and that the assets in the hands of the executor or administrator should be applied to the payment of such purchase money, or that the assets are insufficient to pay the same, the court shall order the executor or administrator to dispose of the interest of the deceased therein at public or private sale."24
Where such sales of a decedent's real estate are made “If any one or more of the heirs... shall be minors the court shall appoint a guardian ad litem for such minor or minors ... and such executor or administrator's deed shall be good and sufficient in law to all intents and purposes.
Where a decedent was a party to a contract for the conveyance of land to him on payment of certain sums of money, his rights thereunder pass to the heir and not to the executor.? The descent of the testator's rights to the heir has no effect upon the right of the executor to sell the real estate involved, as the statute confers the power to administer the estate in this manner. If the sale were made by an administrator of an intestate's land, the heir's interest in the land would pass irrevocably to the purchaser. And the executor when he makes a similar sale of a testator's land is acting in the capacity of an administrator (namely, by virtue of the authority
23. (1921) Cahill Ill. Rev. St. Ch. 3 sec. 112. 24. Burns Ind. Rev. St. Sec. 2801. 25. (1921) Cahill Ill. Rev. St. Ch. 3 sec. 113. 26. Buck v. Eaman 18 I11. 529.