majority">Pillsbury, J.

It is urged by appellants that the Circuit Court of Knox County had no jurisdiction of the subject matter of this proceeding. The argument is, that these notes were inventoried by them as belonging to the estate of Mrs. Dwire, and the County Court of Fulton having jurisdiction to settle said estate, the only remedy of a party seeking to recover any of the property so inventoried, is by application to that court-This position we deem untenable.' If the property in controversy belongs to the estate of Mrs. Lee, the appellants were in fault in reporting it as assets of the estate of their testatrix. Such act upon their part could not change the ownership, nor the right of possession to the property, neither could it deprive the County Court of Knox county of its power under the statute to compel them to make a disclosure of assets belonging to the estate of Mrs. Lee in their possession. If they as executors wrongfully retain personal property belonging to another, no reason is perceived why the owner may not assert his right to the possession thereof by any proceeding that would be available against them as individuals.

We are of the opinion that the merits of the case are with the appellant. Under the third clause of § 1, Ch. 39, R. S. 1874, when Mrs. Lee died, leaving no children or descendants of children, her surviving husband, after the payment of the debts, took by descent all the personal property and one-half of the real estate of the intestate as an absolute estate forever. He being the only heir as to the personal estate of his wife, and upon her death being left in possession of it, if he saw proper to pay all the debts owing by the estate out of his own funds, it is believed tliat, under the statute, the title would so vest in him to the personal property in specie, that no county court would, against his objection, be authorized to deprive him of such property for the purpose of having it sold in course of administration, and compel .him to take the money derived from the administrator’s sale as sole distributee of the wife’s estate.

Where there are debts owing by the estate and administration, while such debts are still subsisting, the administrator would undoubtedly take the legal title to all the personal estate, to the exclusion of the surviving wife or husband; but if all the debts should be paid by such husband or wife before letters of administration were issued, the language of the statute would seem to vest an absolute legal title to the personal estate in such husband or wife, that could not be divested by a. subsequent appointment of an administrator. The case in the 13 Ill. hereafter referred to, is not in conflict with this view, as there, debts were owing by the estate at time of administration, granted and proved against the estate thereafter.

It was held in Fitzgerald v. Glancey, Adm’r, 49 Ill. 465, that it was a perversion of the statute relating to the adminis-. tration of estates of decedents, to take out letters of administration when no debts were owing by the decedent at the time of his death, and no personal property left by him, and to attempt to sell the real estate for debts incurre 1 by the adminis - trator in the course of administration. In Lewis v. Lyons, 13 Ill. 117, Mrs. Lyons, as sole heir of her husband, had received under a decree foreclosing a mortgage, the money derived from the sale, that would have been received by her bus-. band if living. Lewis, as administrator d& bonis non of Samuel Lyons, the husband, filed his bill alleging that there were debts against the estate of the husband still unpaid, and that to pay such it was necessary that the money so received by, Mrs. Lyons should be refunded by her to be applied in liquidation thereof. It appeared on the trial that Mrs. Lyons had . paid all the debts proved against the estate. The court say: “As it is, we take it to be established that she is the only heir, and as such, she is entitled to the entire estate, both real and personal, after the payment of debts. The administrator, it is true, may have the legal title to the personal estate; not, however, in his own right, but as trustee, and for a particular purpose. When the debts are paid, the heir is the cestui que trust, and as such is entitled to the surplus of the assets after the debts are paid. There being no debts unpaid in this case, the heir has the entire equitable interest in all of the estate, both real and personal. This court is not bound at all times to enforce a strict legal right, but will always look to and protect the equitable title when good conscience requires it. It would be a mockery of justice for a court of chancery to require the heir to pay over the money to the administrator, when he has no debts to pay, and no legitimate use for it, merely for the purpose of allowing him to retain and use it, for perhaps two years, and then to pay it back to the heir, retaining his costs and commissions, costs uselessly made, and commissions earned by no beneficial services, but in a business which he seeks through an expensive suit in chancery, and which can benefit himself alone.” .

The facts of the case at bar bring it within the principles of the above case. That decision, it is true, was rendered in a chancery proceeding, but we think that in proceedings of this character the probate court can and should so apply the principles governing courts of equity as not to sacrifice the substantial rights of parties to mere form or to a bare legal right, when no good purpose can or will be subserved by so doing. Whether Mr. Lee took, under the statute after the payment of debts, the legal title to the personal estate or not, it is clear that he had all the real substantial interest in it, and this interest could, we think, be transferred by him to Mrs. Dwire, and she would by such transfer become invested with the right to interpose any objections to a surrender of the property to the administrator of the estate of Mrs. Lee that he could have done, had he still retained possession of the property as sole heir of his deceased wife. LTow, Mr. Lee having paid all the debts of the estate, transferred the notes in dispute to Mrs. Dwire, endorsing his name upon them, she claiming at the time of the division that such notes, and the land, paid all that her daughter owed her; and if so given in payment of debts due her, we think that no one but Mr. Lee can complain, if there we ) no other creditors.

Whether these notes were transferred to Mrs. Dwire by Mr. Lee in payment of debts due her from the estate, or in compliance with the dying request of Mrs. Lee, as suggested by counsel, or as a gift to Mrs. Dwire, we consider as immaterial in this case, as in either event the transaction was made complete by the delivery of possession to her, and Mr. Lee could not thereafter reclaim them, at least during the life-time of Mrs. Dwire. So far as the appellee as administrator of Mrs. Lee is concerned, there being no debts to be paid, and he having no legitimate use for the property, has no equitable right to deprive the appellants of its possession, as they, as to him, occupyt he position of the heirs of Mrs. Lee; and especially is this so in this case, as the evidence is clear and undisputed, by the testimony of the appellee himself, that no other reason -existed for administration upon the estate of Mrs. Lee than the commencement of this very proceeding, and that he is a mere “ figure head,” his appointment being obtained by Mr. Lee for the purpose alone of bringing this- suit.

Under such circumstances we do not think that the probate court, acting upon equitable principles, will enforce his mere naked legal title, if any such he has, to the property in question in the possession of the legal representatives of the transferee of the substantial equitable title thereto. As to him, they occupy the position of their testator, and the equitable title of Mrs. Dwire, derived from the sole heir, should prevail in this proceeding over his mere legal title, when the only object for the assertion of such legal title is the enforcement, in this indirect manner, of the alleged rights of Mr. Lee, arising out of the clause of the contract, giving Mr. Lee this property after her death. If he has any rights that he can enforce under such provision of the contract, a point which we do not now decide,. he can assert the same in some appropriate proceeding in his own name, when he will be bound by the judgment of the court construing the contract in that regard.

For the reason stated, we think the order of the court below should not have been made against the appellants, and it is therefore reversed.

Order reversed.

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