Bowen v. Shay

• Decision Date: 20 November 1882
• Citation: 1882 WL 10487,105 Ill. 132
• Parties: GEORGE S. BOWEN, Admr.v.ANNA SHAY et al.
• Court: Illinois Supreme Court

105 Ill. 132

1882 WL 10487 (Ill.)

GEORGE S. BOWEN, Admr.

v.ANNA SHAY et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding.

Mr. M. R. M. WALLACE, and Mr. CHARLES L. EASTON, for the appellant:

Prior to the amendment of section 90 of the act relating to the administration of estates, which was approved February 9, 1874, an administrator had no authority to sell personal property otherwise than by a public sale, in which case his authority is derived from the statute, which requires him to take security for sales on credit; but by the amendment of 1874 the court was invested with jurisdiction and authority to direct a private sale, placing such sales wholly under the control of the court, and it nowhere requires the court to direct the taking of security on such a sale.

If, then, the sale was made as prayed for in the petition, and in accordance with the very terms of the petition, as must be presumed, the failure to take security, if the law required the same, was occasioned by the error of the court, and was not the fault of the administrator.

Mr. C. C. KOHLSAAT, and Mr. G. L. BARBER, for the appellees:

When the duties of an administrator are clearly defined by statute, he has no discretion. He is liable if he deviates from the line of procedure laid down for him. Burnap v. Dennis, 3 Scam. 482; Orcutt v. Orms, 3 Paige, 459; Weston v. Howard, 2 S. & M. 527; Williams on Executors, 1819.

The statute regarding private sales is an extraordinary provision in derogation of the common law, and should be strictly construed. Hall v. Irwin et al. 2 Gilm. 184; Moore v. Hamilton, 2 Id. 429.

Where the two clauses of a statute are parts of the same section, inseparably connected with and necessarily dependent on each other, they should be construed one part by another. McKay v. Plank Road, 2 Mich. 139; Submission by Governor, 22 Pick. 571.

It is always presumed that the legislature intended the most reasonable and beneficial construction of their acts. Richards v. Doggett, 4 Mass. 34; Somerset v. Dighton, 12 Id. 383.

Applying these rules of construction, it is plain that the clause in question is meant to dispense with the public auction and the notice thereof, and nothing else. The general provisions of the section are abrogated only so far as necessarily follows the exception or proviso. Moreover, an authority to sell, given by a principal to an agent, does not carry with it authority to sell on credit. Van Allen v. Vanderpool, 6 Johns. 69; Delafield v. Illinois, 26 Wend. 223; 1 Parsons on Contracts, (5th ed.) 58.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

George S. Bowen, administrator (with the will annexed) of the estate of Jefferson B. Shay, deceased, presented his account to the probate court of Cook county for final settlement. Upon a hearing in the probate court all the items embraced in the account were approved and allowed, except one of $7019.58, which the court disallowed. From this order the administrator appealed to the circuit court, where the judgment of the probate court was affirmed. An appeal was then prosecuted to the Appellate Court, but the result was the same, and the administrator has appealed to this court.

In order to obtain a correct understanding of the decision of the probate court in disallowing appellant's claim, a brief reference to the facts seems necessary. During the progress of the administration, and before the sale of the personal property, the administrator became satisfied that certain property, consisting of a stock of goods, good will, etc., would sell much better at private sale. The administrator applied to the probate court, and obtained the following order:

“ In the matter of the estate of Jefferson B. Shay, deceased:

On petition of George S. Bowen, administrator (with the will annexed) of the estate of Jefferson B. Shay, deceased, it appearing to the court that it is necessary that the personal property of said decedent, to-wit: a retail stock of dry and fancy goods, store fixtures, and two truck horses and harness, described in the bill of appraisement on file in this court, be sold to pay the debts of said estate; it is therefore ordered by the court, that said administrator have leave, and he is hereby authorized, to sell the said personal property, goods, chattels and effects of said decedent at private sale, for the purpose aforesaid.”

Under this order the administrator sold at private sale the property therein named to W. A. Shay, son of the deceased, and F. F. French, who were doing business under the name of Shay, French & Co., for the sum of $28,903.78. There was paid in cash $8258.20, and the balance was upon a credit, for which the notes of the purchasers were taken, without security. Afterwards all of the purchase money for the goods which was represented by the notes was paid, except the sum of...