Fryrear v. Lawrence
| Decision Date | 31 December 1848 |
| Citation | 5 Gilman 325,1848 WL 4168,10 Ill. 325 |
| Parties | JOHN FRYREARv.GARRETT L. LAWRENCE et al. |
| Court | Illinois Supreme Court |
BILL IN CHANCERY in the Scott circuit court, brought by the appellees against the appellant and others. A decree was rendered in favor of the appellees for the sum of $159, among other things, and entered as of the October term, 1847, having been decided in vacation by the Hon. Samuel D. Lockwood, presiding judge.
The following is an abstract of the pleadings and evidence in the case:
On the 19th of February, 1846, the appellees exhibited their bill in chancery against the appellant, his wife Betsey, Joseph H. Berry, as administrator of James Lawrence, deceased, and others, alleging, among other things, that the said deceased died intestate in the State of Missouri, and that said appellees, as his brother and sister, were “his only heirs at law, and as such, are entitled to all of ‘his' estate, both land and personal property.” That the said Berry, as administrator, had obtained certain notes and a mortgage, and foreclosed the same and bought in the mortgaged premises, and he, appellant, and his wife had contracted to convey the mortgaged premises to Burkenmayer & Co.; and that the contract had not been consummated, and that said appellees were entitled to the mortgaged premises as heirs at law as aforesaid. There was this charge in the bill: “Your complainants further aver that the said Fryrear, and the said Betsey Silvers has received from said Berry, and from other sources, large sums of money belonging to the said estate, knowing that they were not entitled to the same.” The bill also alleged, that appellant's wife had lived in a state of concubinage with said deceased, and never was his lawful wife, and that she and the appellant fraudulently combined to appropriate the estate of said deceased to their own use. There were five special interrogatories propounded in the bill to the appellant, and the first was in these words: “What amount of money and property he received by and of this Betsey Silvers, alias Betsey Fryrear, and whether he did not know that it was out of the estate of Lawrence?”
The defendants, on oath, filed joint and several answers to the bill on the 16th of May, 1846. The appellant and his wife answered that they were married according to law in Missouri, on the 26th of August, 1837; that the appellant, in the county of Morgan, and State of Missouri, on the third day of November, 1838, was appointed administrator of said deceased, who was domiciled in that county at the time of his death; that the appellant had entered into bond with security in the penalty of $3,200, conditioned for his faithful administration of said estate; that he had not finally settled his administration; that he would do so at the earliest practicable day, and bring the result into court duly certified; that as he was persuaded that on the final settlement of the estate, there would be due him, as administrator, about the sum of one hundred dollars, which he asserted as a claim of higher dignity against the estate of said deceased than that asserted by the complainants. He made profert of a copy of his letters of administration as a part of his answer, and further stated that after his administration, he placed in the hands of the defendant, Berry, for collection, the McCaleb notes and mortgage, and caused the said Berry to take out administration in the county of Scott, State of Illinois, as ancillary to the aforesaid administration of the appellant, that he, for himself and wife, on the 10th of March, 1845, entered into contract with, etc., for conveyance of bonds, etc. The defendant, Berry, stated that he, as administrator, had not paid one cent to the appellant and his wife. The following is an extract from said answer:
The complainants took no exception to the answer, and filed a replication thereto on the 22d of May, 1846.
On the 4th of June, 1846, the respondents filed an account current of the defendant, Berry, as administrator, charging himself with the notes that came to his hands as such, $1918.90, etc., and showing that there was a balance of $12.51 due him. To this account, the complainants filed exceptions, and exhibited accounts at the September term, 1846, not by leave of the court, or by way of amendment of bill against the defendant, Berry, for a balance of $551.72, and against the appellant for $1962.80, charging, for the first time, after John McCaleb's deposition had been taken in August, 1846, certain items as proven by his deposition.
The appellant, on the 17th of November, 1846, filed his cross bill against the complainants and others, exhibiting his final settlement as administrator of the estate of said Lawrence with the county court of Morgan county, in the State of Missouri, made on notice, and showing a balance to be due him as such administrator on the third of November, 1846, amounting to $249.62, and claiming to be re-imbursed out of what was claimed by the complainants as heirs at law of said deceased, if they made their claim good and alleging that appellant's claim to that extent was preferable to, etc., and waiving answer to the cross bill on oath.
The complainants objected to the filing of the cross bill, which objection being overruled, they were ruled to answer the same. An answer and replication thereto was filed on the 18th of November, 1846.
On the 26th of August, 1846, the deposition of Wm. B. Hatfield, Isaac Killam, and John McCaleb, and on the 22d of August, 1846, the deposition of Enoch P. Sloane was taken by the complainants. The said deposition, it was contended, proved nothing as to the issues involving the true state of accounts between the parties, and as to the heritable rights alleged by complainants. In order to make out their exclusive claim as heirs, the complainants took the deposition of their mother, Hessey Lawrence, on the 26th of May, 1847, by whom only do they prove said claim, which is denied by the answer, and in it full proof is demanded.
On this state of pleadings and proofs, the circuit court de...
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