majority">Mr. Chief Justice Wilkin

delivered the opinion of the court:

The first ground of reversal urged is, that the complainants in the amended bill had no right to file it, and in our opinion that objection is fatal to the decree below. This court has often decided, that, under our statute as it existed prior to the amendment of June 15, 1887, an administrator could not maintain a bill to set aside fraudulent conveyances of real estate by his intestate, or to remove incumbrances upon the same, for the purpose of subjecting it to sale for the payment of debts. The rule prior to that amendment was, without exception, that he could not “support any possessory or real action, in law or equity, for recovery or maintenance of possession or title, or to clear up and vindicate title from clouds from adverse claims.” Smith et al. v. McConnell et al. 17 Ill. 135; Phelps v. Funkhouser et al. 39 id. 401; Newell v. Montgomery, 129 id. 58.

It is insisted, however, that this bill is authorized by the amendment above referred to. The position is wholly untenable. The statute, as amended by the act of June 15, 1887, provides the mode of commencing a proceeding by an executor or administrator for the sale of real estate to pay debts, and requires the widow, heirs and devisees of the testator or intestate, and the guardians of any such as are minors, and the conservators of such as have conservators, and all persons holding liens against the real estate described in the petition, or any part thereof, or having or claiming any interest therein in possession or otherwise, to be made parties. (3 Starr & Curtis, sec. 99, chap. 3, p. 49.) The next section requires the petition to set forth the amount of claims allowed, with an estimate of the amount of just claims to be presented; the amount of the personal estate, etc., with the amount of claims paid; a description of the real estate sought to be sold, and the nature and extent of all liens upon the same. The petition must be signed by the executor or administrator, and verified by his affidavit. On such a petition and parties defendant, section 101 empowers the court to direct the sale of such real estate disencumbered of liens, and to settle and adjust all equities between the parties, and determine all questions of conflicting titles, remove all clouds therefrom, etc.

Enough is shown in the foregoing statement of the allegations of this bill to make it clear that it cannot be brought within these requirements of the statute. It is in no sense a petition by the administrator to sell real estate to pay debts, but is in the nature of a creditor’s bill, in the interest of two of the creditors of the estate. No one is made a party as widow or heir of the deceased. It is neither signed by the administrator as such, nor verified by his affidavit. It wholly fails to show the condition of the estate as to the allowance of claims or just claims to be presented. It does show affirmatively that the deceased was the owner, when he died, of personal property which, according to the finding and decree of the circuit court, was worth $1340,—much more than enough to pay all the debts of the estate shown by the bill. It wholly fails to show why the administrator had not reduced that property to possession, and converted it into money for the payment of debts. In short, no one would suppose, from the reading of the bill, that it was intended to conform to the requirements of the statute authorizing the sale of real estate by an administrator to pay debts. Clearly, the complainants had no legal right to file it.

It need scarcely be said, that while the plaintiffs in error, by their default, admitted the facts properly alleged in the bill, they did not thereby confess the sufficiency of the facts to authorize the decree rendered. For the reason stated the bill should have been dismissed.

The decree of the circuit court is also erroneous on its face, even if it could be treated as an order to sell real estate to pay debts. If the judgment therein rendered against two of these plaintiffs in error for $1340, upon which execution is awarded, was valid, no necessity existed for the sale of real estate. The proceeds of that judgment would be first applied to the payment of debts, and real estate which descended to the heirs, with a mere power in the administrator to sell it if necessary to satisfy claims allowed against his intestate, could only be sold after that primary fund had been exhausted or shown to be insufficient to satisfy such claims. And even though that judgment is, as we hold, erroneous, not only for the reasons already stated, but also because neither the allegations nor prayer of the bill are sufficient to sustain it, still the assets of the estate wrongfully taken by plaintiffs in error, as is alleged, and for which the judgment was rendered, must be seized by the administrator, or their value recovered and applied to the payment of debts, unless he can show his inability to do so, or that such property or its proceeds will be insufficient to pay all the liabilities of the estate, before he can lawfully obtain an order for the sale of real property.

The judgment of the circuit court is reversed, and the cause will be remanded to the circuit court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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