majority">Scates, O. J.

The only questions deemed important in the decision of this case, are presented as objections to the sufficiency of plaintiff’s title.

His title was derived through a purchase from Seth Paine, which is claimed to have been made by him as administrator de bonis non of the estate of D. L. W. Jones, deceased, under and by virtue of an act of the legislature, which became a law on the 6th December, 1836.

The act was passed upon the petition of James Whitlock, administrator, who, however, did not act under it. Ho was afterwards removed, and Paine, who had intermarried with the widow of Jones, was appointed and sold.

We deem it unimportant to the decision, to examine, whether the office of administrator survived, and with it the power conferred by this act, as also the question in relation to filing the widow’s consent, before the sale, and the giving bond and surety, as required by the act. Waiving these, there are insuperable objections to the title set up. We shall confine ourselves to two deemed sufficient.

The first is, that the facts contemplated by the statute, upon which the power to sell depended, wore not shown to exist; and second, the administrator never did sell and convey. In relation to the first, the act authorized the administrator “ to sell, at public or private sale, such of the real estate of said decedent, as is situated within this State, and the territory of Michigan, the proceeds whereof, shall be applied to the liquidation of the debts of said decedent,” and the residue to be invested, etc., for the widow and heir, with the advice of the judge of probate. The supposed existence of debts to be paid, and an insufficiency of personal assets to do so, is the apparent reason for granting this power, and the object of it, to raise means to pay them. The legislature had no constitutional power to find and determine the fact that there were debts owing, (Lane et al. v. Dorman, 3 Scam. R. 238 ; Edwards v. Pope et al., 3 Scam. R. 470 ; 4 Scam. R. 134,) and could, therefore, only grant power to bo exercised, if, and when, the fact should be established in due course of administration. It could not depend upon the private knowledge of Whitlock or Paine, as administrator, nor upon their will and pleasure. None have been shown by the probate records and files, and none are, therefore, supposed to exist.

The court very properly excluded parol evidence, offered to supply this fact. The court, on the trial in this suit, had no power to settle, ascertain, adjust, allow and sanction debts against the estate. Many difficult questions might arise, the statute of limitations might be a defense to their allowance, and it would be impossible in this collateral manner, to draw in question the settlement of that estate, even had the court jurisdiction. Whether before or after the sale of the land, still it was essential to the exercise of the power of sale, to establish and have the debts allowed regularly before the proper tribunal, having jurisdiction. How could the judge of that court sanction any investment of a surplus, without having evidence of what that surplus might be. The case of Dorman v. Lane, in its several visits to this court, has met and settled these points. See 1 Gil. R. 143; 13 Ill. R. 127.

Suppose this not to be a naked power, but one which would survive, as being coupled with an interest in the creditors, to have payment of their debts by its exercise. Yet having failed to show that there were such creditors, it is stripped of that characteristic, and would stand as a naked power, as to the widow and heir. It is such a power as the law will watch with jealousy, and the party claiming under it, will be expected and required to show that the contingency had happened or the facts existed, upon which its exercise depended.

Second: Both the articles of agreement for the sale and the conveyance itself, are made by Seth Paine, describing his identity as administrator, and Ms wife joins in them both. The recitals will not help the deed. It does not purport even to be a conveyance of the estate or interest of Jones, deceased, but that of the grantors. They covenant, warrant and defend, and sign and seal for themselves. We must read, interpret, construe and understand the deed, by and from its language and terms. These all appear, notwithstanding the description and recitals, to be the individual acts and covenants of the grantors, and of their estate for the benefit of the widow and heir of Jones. It might have presented a much stronger case, had the recitals and description of Paine’s person or character, as administrator, been omitted altogether, and the body of the deed have described the estate and interest sold and conveyed, as that of the estate of the decedent. I am constrained, by terms and phraseology of the deed, to believe the intention was to sell and convey the land generally under the power, without regard to the debts of the estate, but with a view to benefit the minor heir by re-investment. This I gather from recitals, in connection with the history of the case as disclosed in the record. But in looking beyond the deed, this would be very doubtful. But admitting it to be so, no power is conferred by the act, upon the administrator, as such, to dispose of the land for the purpose alone of the benefit of the widow and heir, or its control and management on their account. His authority, acts and duties in reference to them and their estate and interest, grew incidentally out of his power to sell and pay the debts as administrator. If his power did not arise on that account, and for that purpose, he had none to sell at all; and so we think he had not.

The objection to reading the journals to establish a fact in relation to the petitioner and petition, etc., for the act, was properly overruled. This court has received them for purposes connected with the passage of the laws. Spangler v. Jacoby, 14 Ill. R. 297, and authorities there referred to.

In pursuance of the agreement of the parties, this cause is remanded for a new trial, notwithstanding the judgment here.

Judgment affirmed.

Citation profile

How this case has been treated — in progress