Herdman v. Short
Illinois Supreme Court
The defendant, William H. Short, as executor of Lydia Kirby, deceased, filed his petition in the circuit court of Jefferson county, against Mary Napper, Jonathan Ogden, guardian, and Mary, Sarah, and Eliza Jane Kirby, minor heirs of Lydia Kirby, deceased, for the sale of the real estate of which Lydia Kirby died siezed, to be applied to the payment of her debts.
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The defendant, William H. Short, as executor of Lydia Kirby, deceased, filed his petition in the circuit court of Jefferson county, against Mary Napper, Jonathan Ogden, guardian, and Mary, Sarah, and Eliza Jane Kirby, minor heirs of Lydia Kirby, deceased, for the sale of the real estate of which Lydia Kirby died siezed, to be applied to the payment of her debts. Two writs of summons were issued, one of which was served upon Ogden, and the other returned served upon four of the defendants. The summons contain the names of Mary Napper, Ogden, and Mary, Sarah, and Eliza J. Kirby, and in favor of…
1Opinion of the CourtCaton, J.
This was a proceeding instituted by an administrator, to sell the real estate of an intestate, for the payment of debts. A summons was issued in the usual form, as for ordinary cases, and was served on one of the adult heirs, hut was not served on the infant heirs, nor was any notice to them published. A default was taken against all of the heirs, without any guardian ad litem having been appointed for the infants. These irregularities are assigned for error; and they are fatal.
The 103d section of our statute of wills, provides that in case of a proceeding of this kind, “ it shall be the duty…
2Cited by6 opinions
- Clark v. ThompsonIllinois Supreme Court · 1868
- Seal v. BanesSupreme Court of Oklahoma · 1934
- Fell v. YoungIllinois Supreme Court · 1872
- Donlin v. HettingerIllinois Supreme Court · 1870
- Johnson v. JohnsonIllinois Supreme Court · 1863
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