This case is identical in principle with that of Stone et al. v. Wood, Adm. etc. 16 Ill. R. 177. And the argument of the appellee was mainly directed against the ruling of the court in that case. No argument was presented on the behalf of appellants, they relying with apparent confidence upon that decision.
After repeated decisions on the same point by this court, the maxim stare decisis" should prevail, it being for the best interests of society that there should be some permanency in judicial decisions, so that the law may be known, and when known, pursued and obeyed. It should be a shield and a guide, and not a snare, for those who may come within its operation.
In a solitary case, and by a divided court, upon a disputed or doubtful point, the maxim should not and does not apply, but courts are left free to revise and reverse a former ruling, if found, on more critical examination and more mature deliberation, to be erroneous.
It is in this spirit we have re-examined and re-considered the case to which reference has been made, (16 Ill. R .177,) and given full regard to the dissenting opinion therein pronounced, and our deliberations lead us to the conclusion to which the majority of the court then arrived.
We see nothing in that opinion at war with any principle of justice or right. On intestacy the title to real estate is thrown, eo instanti, by operation of law, on the heir at law, and no other person is seized thereof for any purpose, or authorized to exercise any act of 'ownership over it, save in the case of a guardian over the estate of his wards. The administrator cannot meddle with it; he cannot employ any part of the personal assets, to the payment of taxes, or save them from forfeiture on account of non-payment; he represents and controls only the personal assets. Such power as he may have over the real estate, only commences when a deficiency of those assets, to pay debts against the intestate, is discovered. He then becomes not seized or possessed of such estate, but the instrument by which a sale of it can be had on application to the proper court, in which application the heir must be a party. It may well be asked here, why make the heir a party, if he can make no resistance to the application — if he cannot, when thus summoned into court, defend his rights ? He is the owner of the land, and has a right to know and be satisfied, why it is about to be taken away from him and sold.
To the proceedings before the Probate Court, by the creditor against the administrator, the heir is not a party. He is not in a position to resist the claims set up, and by which, if allowed through collusion with an unfaithful administrator, or by the *116ignorance of an incompetent court, Ms whole estate is to be swallowed up.
Well might the law be stigmatized as an instrument of injustice, such results following, if the heir be denied the opportunity which every man has, of a full defense — of the largest opportunity to protect his rights. The law will not deprive a man of one dollar, without a hearing — without a chance to contest the claim. Why then should an heir be deprived of his estate without the same right ?
It is said, he is privy to the judgment against the administrator, and therefore bound by it, and that whilst, for some purposes, this court and other courts have held such a judgment as conclusive as one against the intestate himself, it should be so to charge and conclude the heir.
It is true, the heir holds the title subject to the necessities of the administration, but it cannot be said, that being so, there is, necessarily, privity between him and the administrator — there is none in blood, none in deed, none in law, none in estate. The administrator seeks to perform a duty devolving upon him by law, to the debts of the intestate, and to resort to the only fund not exhausted, for that purpose. As well might it be said there is privity between the sheriff, who has an execution against a debtor, and the debtor.
The case in 7 Georgia, 559, was a case where the order to sell the real estate had been obtained, and the heirs, being a party to the proceeding, were bound by it. In this case, the heirs resist the application, and demand proof of the existence of debts legally chargeable against the estate. In that case, it is admitted by the court, what we do suppose has never been seriously questioned, that it was competent for the heir to resist, before the ordinary, the granting the order of sale. It is, in fact, an universal principle, pervading the whole realm of jurisprudence, that no man shall be condemned unheard, or forfeit his property without reasonable means afforded him to assert his rights.
Creditors of an estate have, in the first instance, no fund to look to for the payment of their demands, other than the personal assets. They must be exhausted before recourse can be had to the land, and, when that resort is had, the rights of the heirs are not to be overslaughed by the creditors. They are as much entitled to the protection and the regard of the courts, as the rights of the others.
Suppose, instead of the claims having been proved before the Court of Probate, the administrator had admitted them without proof, and judgment rendered on such admission, could it be contended, that on an application to sell lands to pay such *117judgments on these admissions, the heirs should not have the right to demand of the administrator proof of their justice ? He surely cannot be bound by such judgments, for he does not claim through the administrator — he claims independent of him, there is no privity between them, and he has a perfect right to demand the reason, and know the facts, through and by which he is to be deprived of his property. We do not think an adjudication can be found, where the heir has been bound by the admission of an administrator. We can find no such case. There are cases where privity was held to exist between an executor and a legatee; but there is none between the heir and an executor or administrator.
We think this court has gone far enough, in holding, as they do, that these judgments in the Probate Court are but prima facie evidence of just demands against an estate, but do not conclude the heir. They are open to contest by him, when application is made to the court to take his property with which to satisfy them.
This case, and that in 16 Ill. R., are strong cases to show such should be the rule, to require the administrator, on such applications, when resisted — the heir for the first time having an opportunity to be heard — to make full.proof, and to allow the heir to falsify the account of the administrator.
The demands, in both cases, are stale, on which the heir should be fully heard.
We can find no fault with the decision in 16 Ill. R., and reaffirm it in all its parts.
The judgment of the Circuit Court is reversed, and the cause remanded.
Judgment reversed.