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In Re Estate of Frick

MAY 19, 1960.

IN THE MATTER OF THE ESTATE OF CARL A. FRICK, DECEASED. HARRY L. FRICK, AS EXECUTOR OF THE WILL OF CARL A. FRICK, DECEASED, PETITIONER-APPELLEE,

v.

ANN B. FRICK, ET AL., DEFENDANTS. WILLIAM T. HULL, JR., DEFENDANT-APPELLANT.



Appeal from the Probate Court of Rock Island county; the Hon. FOREST DIZOTELL, Judge, presiding. Decree affirmed.

WRIGHT, J.

Carl A. Frick, a resident of Rock Island County, Illinois, died testate on September 6, 1950. On October 16, 1950, decedent's will was admitted to probate and letters testamentary issued by the Probate Court of Rock Island County to Harry L. Frick. William E. Furgie, a creditor of the decedent, on August 27, 1957, which was less than seven years after decedent's death, filed a petition stating that his claim for funeral expenses in the sum of $745, had not been paid in full; that he had received payment on the claim in the amount of $150 from the executor on March 27, 1951, leaving a balance unpaid of $595. The petition further alleged that there were insufficient personal assets to pay the claim, that decedent's real estate should have been sold long ago to pay debts, and that the statutory period of seven years for sale of real estate was about to expire. The petitioner prayed that the Probate Court enter an order for an additional time of six months for the sale of real estate to pay debts. The petition stated, in part, the following:

"That there is a deficiency of personal estate to pay debts and claims and costs and expenses of administration, and that because of said deficiency the real estate that was owned by said testator should long ago have been sold to pay said debts, claims, costs and expenses of administration, and that said Executor has been derelict in his duty in that regard, although he well knew that said debts and claims should have long since been paid." (Emphasis Added.)

On August 29, 1957, the court entered an order granting an extension of six months for the sale of real estate to pay debts and further ordered the executor to file a petition for such sale within twenty days and to proceed to take the necessary steps to sell the real estate within the time so extended. On September 17, 1957, the executor filed his petition to sell real estate to pay debts and the various defendants were served with process or entered their appearances.

On February 11, 1958, Ethel M. Furgie, as administrator of the estate of William E. Furgie, deceased, filed a petition for a second extension of time for the sale of real estate to pay debts. In her petition, Ethel M. Furgie advised the court that William E. Furgie had died and that she had been appointed administrator of his estate on November 15, 1957. She further alleged in paragraph 6 of her petition the following:

"6. That nothing further has been done in connection with said petition to sell real estate to pay debts, that the six months additional time so allowed by said order of this court for such sale of real estate is about to expire, and that said Executor Harry L. Frick has failed and neglected to prosecute his said petition diligently as he was so ordered to do as aforesaid, and that said order is still in full force and effect and has not been vacated, set aside, changed or modified."

The petitioner, Ethel M. Furgie, further alleged that there should be a further extension of time for the sale of real estate to pay debts and that the Probate Court should enforce the observance of its order of August 29, 1957, that said executor prosecute with diligence the matter of the sale of real estate to pay debts. On February 11, 1958, the petition of Ethel M. Furgie was granted and the court entered an order for a further extension of six months for the sale of real estate. Thereafter, nothing was done until August 7, 1958, when the court entered a third order extending time to sell real estate an additional six months from said date.

On December 3, 1958, defendant-appellant, William T. Hull, Jr., filed a motion to dismiss the petition to sell real estate to pay debts on the grounds that he had a partition suit pending in the Circuit Court of Rock Island County, Illinois, relating to the same real estate and that the Probate Court lacked jurisdiction to enter an order for the sale of real estate for the reason that no good cause was shown for the extension of time for the sale of real estate beyond the seven year limitation provided by statute. The appellant's motion to dismiss the petition was denied. Appellant then filed an answer to the petition and asserted special defenses that the partition suit was pending; that more than seven years had passed since decedent's death and that no good cause was shown for an extension of time for the sale of real estate beyond the seven year limitation period fixed by statute; and that the lien of creditors of the estate had been lost.

On February 6, 1959, the Probate Court entered a decree ordering the sale of decedent's real estate to pay debts on March 28, 1959. William T. Hull, Jr. took an appeal directly to the Illinois Supreme Court from this decree. The Supreme Court transferred the cause to this court.

The principal question presented, which seems to be one of first impression, is whether or not there was good cause shown for the extension of time for the sale of real estate beyond the seven year limitation period within the meaning and intent of Section 379, Chapter 3, Illinois Revised Statutes, 1957 Edition. This statutory provision is as follows:

"When there is insufficient personal estate to pay expenses of administration, claims against the estate, or legacies expressly or impliedly charged by the decedent's will upon his real estate, the executor or administrator by leave of the Probate Court and upon such terms as the court directs, may sell or mortgage for those purposes real estate or interest therein to which the decedent had claim or title; provided, after the expiration of seven (7) years from the date of death of a decedent, or after the expiration of such additional time as may be allowed by the Probate Court for good cause shown upon petition filed by any interested party within said seven (7) year period or any extension thereof, no real estate, or interest therein, to which the decedent had claim or title, shall be sold or mortgaged for the purpose of paying expenses of administration or claims against the estate."

Prior to the enactment in 1945 of the foregoing statute fixing the time within which real estate must be sold to pay debts, the question within what time the petition to sell real estate should be filed had often been considered, and a period had been fixed which was adopted in analogy to statutes of limitation relating to liens of judgments. In the absence of a legislative rule, it was uniformly held that the application to sell real estate must be made within seven years, unless the delay was satisfactorily explained. If the circumstances showed good reason for a delay, a longer time would not bar a proceeding. White v. Horn, 224 Ill. 238, 79 N.E. 629. It was well settled law in this state prior to the enactment of the foregoing statutory limitation period, that a delay of seven years after testator's death if not satisfactorily explained, was such laches as would bar any relief sought in a petition for the sale of real estate to pay debts, In re Neff's Estate, 389 Ill. 625, 60 N.E.2d 204.

In In re Levy's Estate, 335 Ill. App. 367, 82 N.E.2d 209, the court fully traces the history and thoroughly discusses the common law seven year period of laches in regard to the selling of real estate to pay debts and therein held that the evidence failed to establish a reasonable excuse for the administrator's delay of more than seven years after decedent's death before the filing of the petition to sell real estate for debts, and hence, the petition was barred by laches. Prior to the amendment of 1945 to section 379 of the Probate Act if a period of more than seven years elapsed between the death of the testator and the time that the petition to sell real estate to pay debts was filed, the creditor lost his lien upon the real estate, unless the delay was satisfactorily explained. It then became a question of fact whether the delay was satisfactorily explained. Peters v. Peters, 342 Ill. App. 270, 96 N.E.2d 369.

Section 379 of Chapter 3 of the Illinois Probate Act, supra, clearly states that after the expiration of seven years from the date of death of a decedent, no real estate shall be sold for the purpose of paying expenses of administration or claims against the estate. The only exception to this definite limitation is that if a petition is filed within the seven year period the Probate Court ...


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