Corrington v. Corrington

• Court: Illinois Supreme Court
• Writing for the Court: SHOPE
• Citation: Corrington v. Corrington , 124 Ill. 363, 16 N.E. 252 (Ill. 1888)
• Decision Date: 28 March 1888
• Parties: CORRINGTON v. CORRINGTON et al.

124 Ill. 363

16 N.E. 252

CORRINGTON

v.CORRINGTON et al.

Supreme Court of Illinois.

March 28, 1888.

Appeal from appellate court, Third district.

Suit by James C. Corrington and W. W. Corrington against John W. Corrington, executor, for a final settlement of the estate of Joel Corrington. A personal judgment was rendered against the executor, and he appeals.

Ketcham & Hatfield, for appellant.

Hamilton & Kirby, for appellees.

SHOPE, J.

The executor of the last will of Joel Corrington, deceased, on May 23, 1883, presented to the county court of Morgan county, his report as executor, in which, among other items, he charged himself with $2,389.20, received from J. B. Corrington for 79 64-100 acres of land; and $5,860.80, received from William Corrington for 195 36-100 acres of land sold by said executor to said parties respectively. To this report exceptions were filed, none of which are before us by this appeal except the fourth, which excepted the said items for the sale of said land, because the sale, as reported, was for a sum greatly less than the actual cash value of said lands, and less than the executor might reasonably have realized therefrom. The county court sustained this and other exceptions, and, upon appeal to the circuit court, said fourth exception was again sustained, and the executor ordered by the court to charge himself with the additional sum of $2,750, being the amount found by that court to have been charged less than the executor should have realized from the sale of said land. Upon the last appeal the finding and the order of the circuit court was affirmed by the appellate court, and the executor prosecuted this further appeal.

The jurisdiction of the county court to require the executor to account in respect to this item is questioned. The contention is that where an executor is empowered, by the terms of the will, to sell real estate, the court may require him to execute the will in that respect; but when a sale is made and reported, the authority of the probate court is at an end, and resort must be had to a court of chancery by the party injured to correct an abuse of the trust, or for relief. The courts of probate, in the settlement of estates and the adjustment of the account of executors, administrators, and guardians, exercise equitable jurisdiction, so far as may be necessary to adjust the same. Dixon v. Buell, 21 Ill. 203;Hurd v. Slaten, 43 Ill. 348;Wadsworth v. Connell, 104 Ill. 378;Harris v. Harris, 12 Gill & J. 474.The land mentioned as sold in the report of the executor was, by the will of Joel Corrington, deceased, duly admitted to probate, devised to be sold by said executor, and the proceeds thereof divided equally among the testator's six children, named in the will. The intent of the testator to devise the money arising from the sale of said land is clearly expressed. There was here, then, a devise of money, and not of land. It was said in Fletcher v. Ashburner, 1 Brown, Ch. 497, ‘that nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted.’ 1 Williams, Ex'rs, 414 et seq.; Wheldale v. Partridge, 5 Ves. 396; 2 Story, Eq. Jur. 212-214. Where, as in this case, a will requires real estate to be converted into money, and there is no election by the devisee to take the real estate directed to be converted, it is considered as converted from the time of the testator's death. Wurt's Ex'rs v. Page, 19 N. J. Eq. 365;Dodge v. Pond, 23 N. Y. 69. The principle that a testator may thus impress upon real estate the character of personalty, and that whoever takes property under the will takes it in the character thus impressed upon it, has been repeatedly held by this court. Baker v. Copenbarger, 15 Ill. 103;Jennings v. Smith, 29 Ill. 116;Rankin v. Rankin, 36 Ill. 293. In equity, at least, this devise was of a fund distributable by the executor to the devisees named in the will, and as such was in his hands by virtue of his office, and which he must account for under the direction of the probate court. By the will the executor was clothed with discretion as to the time and manner of making sale of these lands; but he must exercise such discretion with fidelity to the interests of the beneficiaries, and in a reasonable and prudent manner. Having accepted the trust, he was bound to execute it with integrity; and, while he cannot be held liable for mistake in...