Blanchard v. Williamson

• Decision Date: 30 September 1873
• Citation: 1873 WL 8655,70 Ill. 647
• Parties: PHILENA BLANCHARDv.ALMIRA WILLIAMSON.
• Court: Illinois Supreme Court

70 Ill. 647

1873 WL 8655 (Ill.)

PHILENA BLANCHARD

v.ALMIRA WILLIAMSON.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. WEAD & JACK, and Mr. P. H. SANFORD, for the appellant.

Messrs. DOUGLASS & HARVEY, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Appellee exhibited her bill in the circuit court of Knox county, on the sixth day of December, 1872, the object of which was to compel appellant, who was executrix of Mary Gardner, deceased, to pay her the amount of a certain promissory note, alleged to have been made by the decedent.

It is charged, that a large amount of assets came to the hands of appellant, as executrix, which she failed to cause to be inventoried as the law directs, and it is sought to compel the payment of the alleged indebtedness out of the uninventoried assets.

The record presents a rather singular state of facts. The allegations in the bill are, that on the first day of January, 1857, Mary Gardner, for a valuable consideration, executed to appellee a promissory note for $1000, due in one year after date, with ten per cent interest, until paid, which note, it is alleged, was delivered to her, but afterwards became lost, and its whereabouts unknown to her, until within the year previous to the filing of the bill. It is further charged, in the bill, that Mary Gardner made a will, by which, after directing the payment of all her just debts, she devised the residue of her estate.

The proof shows, that Mary Gardner was the mother of appellant and appellee; that they both, for many years previous and at the time of her death, resided with her as members of her family. Her death occurred in June, 1866, and in July following her will was duly admitted to probate in the proper office.

Appellee states, in her testimony, she had no knowledge of the existence of the note until some time within the year prior to filing her bill. It was then, by mere accident, discovered among some notes which were regarded as of no value. She states she had two on which she never expected to get anything; that she kept them in a pocket-book, among some paper rags in the lumber room. Her mother, she says, had access to it, and knew where she kept the pocket-book. When about to start to California, she placed it in the lid of her trunk. When packing her trunk to return to this State, she saw what she supposed were the two worthless notes, but on opening one of the papers found it was the note in controversy. Her mother, subsequent to the date of this note, had made her valuable gifts of real estate and other property, and although she had frequent private conversations with appellee about what she would receive of her property after her death, her mother never mentioned the existence of the note. It seems certain, from the evidence, the note is in the handwriting of decedent, but there is no consideration shown, and, indeed, the facts show conclusively there was no valuable consideration whatever. Nor is it shown there was any delivery to appellee, unless we infer what is not proved: that the deceased herself placed the note among the old papers of appellee, for her benefit.

The right to the relief sought seems to be predicated upon two grounds:

First--The executrix, at the expiration of two years from the granting of letters, having reported there were no claims established against the estate of the testatrix, was discharged, by order of the county court, from further administration.

Second--A large amount of assets had come to the hands of the executrix which she had failed to inventory.

It is not perceived how a court of equity can obtain jurisdiction for either cause suggested. The most favorable consideration appellee can claim is, that the facts, as alleged in her bill, shall be taken as true; and conceding that the note, as there stated, was executed for a valuable consideration, and delivered to her, but subsequently lost, this fact would afford no excuse for not presenting her claim within two years for allowance against the estate, so that, if just, it could have been paid in due course of administration. The note was merely the evidence of the indebtedness, and the claim could have been presented for the original consideration. Appellee can not be heard to say she did not know of the existence of the note, for she alleges, in positive terms, it was given for a valuable consideration and delivered to her, but afterwards lost. She is bound by the allegations of her bill. No principle of law is better settled, than, where the law affords a remedy, and the party neglects to avail of it, equity will not assist him after his rights have been barred by the Statute of Limitations.

Nor can the order of the county court, discharging the executrix from further administration of the estate, excuse the presentation of the claim for allowance. Such an order is a nullity, until the estate had been administered according to law. Had it appeared the executrix had refused to act, or had been guilty of improper conduct, the court could rightfully remove her and appoint one that would act; but there was no ground of complaint alleged against her. The order was simply to discharge her from further...