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McNITT v. TURNER.

December 1, 1872

MCNITT
v.
TURNER.



ERROR to the Circuit Court for the Southern District of Illinois; the case being thus:

Turner, alleging that he "was possessed as of his own demesne in fee" of the same, brought ejectment against McNitt and another for a piece of land, "situate in the county of Brown, and State of Illinois," and described as follows, to wit:

"The southeast quarter of section four (4) in township one (1) south, of range four (4) west in said county of Brown."

Both plaintiff and defendant admitted title in one Samuel Spotts.

THE PLAINTIFF claimed through a decree of sale made on prior proceedings, by the Circuit Court of Adams County, Illinois, after Spotts's death. The validity of this title depended on the interpretation to be given to certain statutes, and on the validity of a certain notice, thus:

A statute of Illinois, relating to wills, enacts:*fn1

"SECTION 51. In all cases where the intestate shall have been a non-resident or without a widow, next of kin, or creditors in this State, but having property within the State, administration shall be granted to the public administrator of the proper county, and to no other person."

Another enactment provides:

"SECTION 98. When any executor or administrator, whose testator or intestate shall have died seized of any real estate in this State, shall discover or suspect that the personal estate of such testator or intestate is insufficient to pay the just claims against his or her estate, such executor or administrator shall, as soon as conveniently may be, make a just and true account of the said personal estate and debts, as far as he or she can discover the same, and shall make out a petition to the Circuit Court of the county in which administration shall have been granted, stating therein what real estate the said testator or intestate died seized of, or so much thereof as will be necessary to pay his or her debts as aforesaid, and to request the aid of the said court in the premises."*fn2

SECTION 104 provides that the court shall examine the allegations and proofs, and if it appear that the personal estate is insufficient to pay the debts, the court shall direct the sale.

SECTION 105 provides that the conveyance made under the order of sale shall be effectual against all claiming through the intestate or his heirs.

SECTION 106 provides how the sales shall be made, imposes a penalty for selling contrary thereto, and declares that no irregularity in the sale shall affect the validity of the title.

With these provisions in force, Archibald Williams, to whom the probate justice for Adams County had granted, November 24th, 1837, letters of administration on the estate of Spotts, describing him as 'of the city of New Orleans, Louisiana,' gave in the Quincy Whig, for four weeks (the first publication being July 21st, 1838), the following

NOTICE.

"The subscriber, as administrator of the estate of Samuel Spotts, deceased, will make application to the Circuit Court of Adams County, and State of Illinois, at the next September Term thereof, for leave to sell the following real estate, belonging to the said Samuel Spotts, or so much thereof as will be sufficient to pay his debts, his personal estate being insufficient to pay the same. All persons interested in said estate are requested to show cause, if any they have, why it should not be sold for the purposes aforesaid.

Parts of Sections. Township. Range.

S.E. 4 ....... 1 S. ...........4 W.

S.W. 24 ...... 3 N. ...........8 W.

S.W. 15 ....... 10 N. ...........3 E.

S.E. 26 ....... 13 S. ...........2 W.

N.W. 36 ....... 4 N. ...........6 W.

N.W. 23 ....... 5 N. ...........7 W.

S.W. 7 ....... 9 N. ...........5 E.*fn3 *

"All of the above land being recorded north or south of the base line, and east and west of the fourth principal meridian.

"ARCHIBALD WILLIAMS,

"Administrator of Samuel Spotts, deceased."

The notice having been thus given, Williams presented a petition or "bill" to the Circuit Court of the said county of Adams, setting forth these letters, and setting forth that Spotts had died intestate before the 1st of January, A.D. 1836, 'leaving' in Illinois certain real estate described in the copy of the inventory, marked Exhibit A, filed herewith.

The inventory (purporting to be "an inventory of the real estate belonging to the estate of Samuel Spotts, deceased,") then set forth thirty-one quarter ...


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