Opinion of the Court. property which may be concealed or embezzled, or be in the possession of a party not entitled to it, in order that it may be delivered up to be administered upon. We do not perceive how the complainants could have appealed, or from what they should have appealed, as the County Court failed to determine who was entitled to the surplus of the wife's estate. The order, so far as it went, was well enough, that the administrator should pay it to the persons legally entitled to receive it, and this bill was filed for the purpose of ascertaining that fact. We know no tribunal more competent to settle such a question than a court of equity, which has a paramount jurisdiction in cases of administration and the settlement of estates, and may control courts of law in their action in their settlement and distribution. Grattan v. Grattan, 18 Ill. 171. The other and most important question must be determined by reference to our statute. Our statute of wills, by section 46, declares, after all debts and claims against an estate shall be paid, the remainder of the estate shall descend to and be distributed to the children of the intestate, and their descendants in equal parts; if there be no children of the intestate or descendants of such children, and no parents, brothers or sisters, or descendants of brothers and sisters, and no widow, then such estate shall descend in equal parts to the next of kin to the intestate in equal degree, computing by the rules of the civil law. Scates' Comp. 1199. By section 55, administration on the estate of the wife is the right of the husband. The property of the intestate consisted, for the most part, in promissory notes on different persons made payable to her while sole, which never came into the possession of her husband, nor had he any control over them in her life-time. He had not reduced them into his own possession. While marriage was, prior to the act of 1861, considered as an absolute gift to the husband of the goods, personal chattels and estate of which the wife was actually and beneficially possessed at the time of marriage in her own right, and of such Opinion of the Court. other goods and chattels as came to her during the marriage, with regard to choses in action, the marriage was only a qualified gift, upon the condition that the husband reduced them. into possession during the continuance of the marriage. Failing to do this, on the death of the wife they survived to her next of kin. The act of 1861 continued the separate property of the wife in her during coverture, and placed it beyond the control of her husband. The appellee contends that by the terms of the act her property was so placed only "during coverture," and that at her death it passed to the husband in that right, or to him as administrator on becoming such. This is not a proper inference from the language of the act taken in connection with the sections of the statute of wills above cited. The property being the absolute property of the wife "during coverture," it would seem to follow, on her death, it went to her next of kin, or to her devisees as she might nominate by her last will. It is hers absolutely, and, dying intestate, it becomes subject to the provisions of our statute in relation to intestate estates. The cases cited by appellee are based upon the statute of 29 Car. 2, which never was in force in this State, as it was passed subsequent to the fourth year of the reign of James I. The rule as contended for by appellee is the law in England, New York and Kentucky, as appears from the authorities cited. Stewart v. Stewart, 7 Johns. Ch. 229; 2 Bright's Husband and Wife, 224; Brown et al. v. Alden et al., 14 B. Mon. 143, and perhaps in other States. In those States having statutes of distribution like our own, the surplus property of the wife, on intestacy, has always been held to go to her next of kin, and not to her husband in either right as claimed. Holmes v. Holmes, 28 Verm. 765; Curey v. Falkington, 14 Ohio, 106; Dixon v. Dixon, 18 id. 113; Baldwin v. Carter, 17 Conn. 201. In Cox v. Morrow, 14 Ark. 617, and Carter v. Cantrill, 16 id. 155, it was held that the personal property of the wife, not reduced to possession by the husband during her life-time, descends, upon her death, to her heirs or representatives, and not to her husband. 29-44TH ILL. Opinion of the Court. This was the rule of the common law, though the administrator could not be compelled to make distribution until the act of 22 Car. 2 was passed, compelling him, and under that act the distribution was to the next of kin of the wife. Reeve's Dom. Rel. 16. Before this statute, all the children of a deceased person were equally entitled to their several shares of the personal estate of their father, yet if one of them procured administration on the estate, he would take the whole to himself, as did the clergy when to their care estates were committed. In the same manner, when the wife died, the husband was considered as having a legal right to the administration on her estate, and, having obtained the appointment, he could not be compelled to distribute to her representatives. But this statute made it the duty of all administrators to distribute the estates of deceased persons. Id. By the statute 29 Car. 2, husbands were permitted, after having paid the debts due from their wives, to hold exclusively all their wives' choses in action, without any liability to account for them to any person. This altered the common law, giving that to the husband which before belonged to the representatives of the wife. This statute was never in force in this State, consequently the husband here is in no different situation from other administrators, and must distribute the estate according to our statute of distribution. The husband becomes administrator by virtue of our statute, and is in no different condition than any other administrator, and must distribute the surplus according to the law under which he acts. He cannot claim to be next of kin to his wife, for in no sense is he such, nor is the wife next of kin to the husband. Watt v. Watt, 3 Vesey, Jr. 247; Garrick v. Lord Camden, 14 id. 386 (side paging); Bailey v. Wright, 18 id. 49; 2 Kent's Com. 136 (5th ed.) An inference may be drawn, that it was not the intention of the legislature to vest the husband with the personal estate of his wife, after her decease, from section 47, chapter "wills," wherein it is provided the husband shall have one-half of the real estate of the wife forever, if she dies without issue. We are of opinion the next of kin of the intestate are entitled to the surplus of her estate, and the demurrer to the bill should have been overruled, and a discovery compelled. The decree of the Circuit Court must be reversed, and the cause remanded. Decree reversed. PATRICK CONROY v. MARY A. SULLIVAN et al. HOMESTEAD EXEMPTION—a protection against all judgments, whether ex contractu or ex delicto. By the amendatory act of 1857, the homestead is exempt from sale under an execution issued on a judgment against the husband, whether such judgment is obtained for the violation of a contract, or his torts. WRIT OF ERROR to the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding. This was a bill for an injunction, exhibited in the court below by the appellant, against the appellees, Mary Ann Sullivan, Henry Moore and Joel K. Finley, charging that complainant 'was the owner of lot 9, in block 13, in the Illinois Central railroad addition to Centralia; that the property was purchased by him from one Luke Conroy, on the 6th of April, 1865, who then occupied the premises as a homestead; that the defendant, Mary A. Sullivan, at the March Term, 1865, of the Marion Circuit Court, obtained a judgment against the said Luke, in an action for slander, and had had execution issued and levied on the premises, and would sell the same, if not restrained by injunction of the court; that the same were occupied by him as a homestead, at the time of the rendition of said judgment. On the hearing in the court below, a decree was rendered for the defendants, dismissing the bill, to reverse which the case is brought to this court by writ of error. Mr. B. B. SMITH, for the plaintiff in error. Mr. JUSTICE LAWRENCE delivered the opinion of the Court: Syllabus. The single question presented by this record is, whether the homestead is exempt from sale under an execution issued on a judgment obtained against the husband in an action for slander. It is true, this case does not fall within the actual terms of the homestead act of 1851. That exempted the homestead "from levy and forced sale, under any process or order from any court of law or equity in this State, for debts contracted from and after the 4th day of July, 1851." The judgment in this case was not strictly a debt contracted." But the law of 1857 declared it to be the object of the legislature to prevent the alienation of the homestead in any case, except by the consent of the wife. In the light of both these laws, this court has constantly held, that it was the evident intent of the legislature to protect the homestead as a shelter for the wife and children, independently of any acts of the husband. He cannot deprive them of their right to it without the consent of the wife, either by his contracts or his torts. There is no more reason, so far as the wife is concerned, for permitting it to be sold for the husband's tort, than for his violation of a contract, and it is the evident policy of the law to forbid its being sold under a judgment and execution in either case. The decree of the court below must be reversed. Decree reversed. 44 452 124 224 44 452 36a 89 44 452 138 102 44 452 d188 1 53 e188 1 59 GEORGE LEWIS v. THE PEOPLE OF THE STATE OF ILLINOIS. 1. JURY-in charge of an unsworn officer. The 189th section of the Criminal Code requires, that the officer having charge of a jury, when they retire to consider of their verdict, shall be sworn to attend them to some private place, and to the best of his ability to keep them together without meat or drink, water excepted, unless by leave of the court, until they shall have agreed upon their verdict, nor suffer other persons to speak with them, and when they agree, to bring them into court. Held, that it is error, in a case of felony, to omit to so swear the officer into whose charge the jury are placed. |