Appeal from the Circuit Court of Cook county; the Hon. HARRY
HANNAH, Judge, presiding. Affirmed.
JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 23, 1960.
This is an appeal taken by the County of Cook from an order entered by the Circuit Court of Cook County striking a petition of the County of Cook to vacate a summary judgment of that court in favor of the plaintiff and against the defendants, West Highland Savings and Loan Association and Mid-City National Bank of Chicago. The basis of the petition is that since the County of Cook was a necessary party in the action any judgment entered without its being made a party was void and subject to collateral attack.
The original suit, filed by Michael Boghosian (hereafter referred to as plaintiff) against the West Highland Savings and Loan Association and Mid-City National Bank of Chicago (hereafter referred to as defendants) for the recovery of certain monies deposited with the defendants and evidenced by savings account books issued to one Joseph Beer, was based on the allegations that said Joseph Beer, who had resided in the rear of plaintiff's store, became seriously ill and was making arrangements to go to a hospital; that prior to his departure he gave the plaintiff two savings account books issued to Beer by the two defendant banking institutions and stated to the plaintiff that he wanted him to have all his money; that the plaintiff took and retained possession of the books; and that Beer died intestate a few days later leaving no heirs.
The Public Administrator of Cook County was appointed by the Probate Court of Cook County as administrator of the estate of Beer. In plaintiff's suit against the defendants he made the Public Administrator of Cook County a party, together with the unknown heirs of Beer. Answers were filed by the defendant banks and the Public Administrator. Plaintiff made a motion for summary judgment supported by affidavits, and on October 24, 1958, the Circuit Court entered an order sustaining the motion and entering a judgment in favor of the plaintiff against the West Highland Savings and Loan Association in the sum of $12,082.84 and the Mid-City National Bank of Chicago in the sum of $2,646.40.
On December 24, 1958, the County of Cook filed a petition, later amended, praying that the said judgments be set aside. In support of its prayer to vacate the judgment the county alleged that the decedent had died with personal estate located in Cook County without surviving spouse or known kindred and that his personal estate escheated to the county after the payment of debts and costs of administration; that the county therefore had a direct, immediate and substantial interest in the said personal estate at the time of the filing of plaintiff's suit and was a necessary party thereto; that the county had no notice of the suit until the first week of December 1958; that the plaintiff was not entitled to the judgment; and that the county has a good and adequate defense to the complaint.
The plaintiff filed a motion to strike the amended petition, stating, among other things, that the county was not a necessary party in the proceeding and that the only time that the county would become such a party is if the administrator of the estate of the decedent shows that there is personal property subject to escheat. On April 23, 1959, the trial court entered an order striking the amended petition of the county, from which order this appeal is taken.
The county here takes the position that because of the statutes governing escheats the title to the personal property of a decedent without heirs vests in it at the time of death; that any judgment entered in the action brought by the plaintiff in the Circuit Court was void, since the county, although a necessary party, was not made a party in the action; and that since the judgment is void it is subject to collateral attack.
[1-3] Escheat originally was an incident of feudal land tenure. Escheat at common law did not apply to personal property. Under the Illinois statutes both real and personal property escheat to the county when an intestate dies without heirs.
[4-6] In the instant case the decedent at the time of his death owned only personal property, and it is with the rules applicable to the devolution and escheat of personal property that we are here concerned. In Illinois an administrator takes no title to or interest in the real estate of the decedent (19 I.L.P., Executors and Administrators, sec. 72). In general an administrator acquires the legal title to, and the right to possession of, the personal assets of the estate of the decedent (19 I.L.P., Executors and Administrators, sec. 73). In McLean County Coal Co. v. Long, 91 Ill. 617, the court states that the title vests in the personal representative as a quasi trustee for the use of the creditors, distributees and legatees. In Stoke v. Wheeler, 391 Ill. 429, the court says that the relationship between the administrator of an estate and a beneficiary is that of trustee and cestui que trust and it is fiduciary in character, and cites Edwards v. Lane, 331 Ill. 442 and Christensen v. Christensen, 327 Ill. 448. The same rule is laid down in Roberts v. Weimer, 227 Ill. 138. While the estate is under administration the executor or administrator can maintain actions for the recovery of personal property or to recover damages for its wrongful injury or its destruction, and neither the legatees, heirs, nor distributees can maintain such actions. McLean County Coal Co. v. Long, supra. In Daniell's Chancery Pleading & Practice, Vol. 1, Sixth American Edition, p. 250, the rule is stated that, the executor or administrator of a deceased person being the person constituted by law to represent the personal property of that person and to answer all demands upon it, it is sufficient to have the executor or administrator before the court.
Chapter 49 of the Illinois Revised Statutes covers escheats, and section 1 [Ill. Rev. Stats 1959, c 49, § 1] provides that if any person "shall die seized of any real or personal estate without any devise and leaving no known heirs or representatives capable of inheriting the same," such estate, both real and personal, "shall escheat as provided in the probate Act." Section 11 of the Probate Act (Ill. Rev. Stat. 1957, ch. 3, par. 162) deals with the rules of descent and distribution and provides for the descent and distribution of real and personal estate, and, after setting out the various rules governing descent, in subparagraph seven provides that when there is no surviving spouse or known kindred of the decedent the personal estate escheats to the county of which the decedent was a resident, or if he was not a resident of this state, to the county in which it is located. Section 291 of the Act (par. 445) provides that the Probate Court may enforce the settlement of estates and that on settlement the court may order the executor or administrator to pay the claims against the estate, and if it appears that there are sufficient assets to pay all claims against the estate the court may order the executor or administrator to distribute the estate to the persons entitled thereto. Section 2 of the Act relating to escheats (ch. 49, par. 2) provides that in case the estate consists of personal property, letters of administration shall be granted thereon as in other cases, and the "same shall be administered in conformity with the probate laws of this state." It further provides that if there is a balance left after the payment of debts and costs of administration, the administrator, shall report the same to the Probate Court with a statement of the facts within his knowledge as to the heirship of the said decedent, which facts shall constitute a part of his report, and it shall be the duty of the court to order the administrator to pay the balance to the County Treasurer of the county.
In Knight v. Gregory, 333 Ill. 643, "distribution" is defined, and the court says that the term refers ordinarily to personal property, stating: "It is defined by Bouvier as `the division by order of the court having authority, among those entitled thereto, of the residue of the personal estate of an intestate after payment of the debts and charges.' . . . `It is, specifically, division of an intestate's estate according to law.' (Anderson's Law Dict.)"
The Act governing escheats in the State of Illinois provides that personal property may escheat to the county. This was not the rule at common law. The Act also changes the common law rule and the former Illinois statutory rule by making the county ...