Harris v. Douglas (64 Ill. 466, 1872)

Mr. Justice Scott

delivered the opinion of the Court:

The decision of the questions arising on this record depend upon the construction that shall be given to the will of the late Stephen A. Douglas.

The bill was filed on the 24th of December, 1870, on behalf of the appellant and such other creditors of the estate as should join in the suit and contribute to the expenses.

It is alleged in the bill that Mr. Douglas died June 3d, 1861, leaving a will, which was admitted to probate in the county of Cook, where he had lately resided, on the 16th day of July after his death. By the terms of the will, one-half of his estate, after the payment of his debts, was devised to his wife, and the other half to his two sons. Mrs. Adele Cutts Douglas, his wife, and Daniel P. Rhodes, were appointed executors, but only the latter qualified, ajid on the 21st day of October, 1861, letters testamentary were issued to him by the probate court of Cook county, and thereupon he entered upon the duties of the office of executor.

The right to relief is predicated upon the specific ground that Mr. Douglas, by'his last will and testament, devised his real estate to his wife and children, charged with the payment of his debts, of which the notes mentioned in the bill are a part. Two objections are interposed:

First—That the claim of the appellant is barred by the statute of limitations.

Second—That she had an adequate remedy at law.

■ Had this bill been filed to enforce a claim against an intestate estate, there could be no question, it seems to us, that the objections ought to be sustained.

It is provided by statute that claims of the class to which appellant’s belong shall be exhibited within two years from the granting of letters, or be forever barred, unless the creditors shall find other estate of the deceased not inventoried or accounted for, saving, however, to certain persons named, and to persons u beyond seas,” the term of two years after their respective disabilities are removed, in which to exhibit their claims.

■ The appellant never presented her claim and had it allowed against the estate, in the county court. It is alleged, however, that she did serve the executor with notice of it, which, it is insisted, under the decision in Wells v. Miller, 45 Ill. 33, would bar the running of the statute.

As a further reason why the claim was not presented for allowance, it is alleged that the appellant and the former own-' ers of the indebtedness were “ beyond seas.”. If the appellant was in fact “ beyond seas,” and fairly within the saving clause of the statute, no reason is perceived why she could not, when she came within the jurisdiction of the court, have exhibited her claim and had it allowed. Ordinarily, the claimant has a complete and ample remedy at law, and such party will be required to pursue it. ' A party may not, in the first instance, file a bill to enforce the payment of his claim ■ against the estate.

A court of equity will not assume jurisdiction except in extraordinary cases where the remedy afforded by the statute is inadequate. ^ It is for the very plain reason that the statute has pointed out a different mode, and the party must1 pursue the remedy provided by law.