Hanifan v. Needles
| Decision Date | 22 January 1884 |
| Citation | 1884 WL 9727,108 Ill. 403 |
| Parties | THOMAS HANIFANv.HENRY M. NEEDLES. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.
Messrs. G. & G. A. KOERNER, for the appellant:
There is no dispute as to the jurisdiction of the county court of the person of the executor when the order of removal was made. The only question then is, was there jurisdiction of the subject matter?
Section 51 of the statute relating to administration required the executor to file an inventory within three months after the date of his letters, and section 111 required him to exhibit an account of his administration at the first term of the county court after the expiration of one year from the date of his letters, and in like manner every twelve months thereafter, or sooner, if required, until the estate was fully settled.
Power to remove executors and administrators is given by statute. Secs. 26, 30, 31, 32, 113, and others.
The county court may revoke letters for the following causes, besides others not necessary now to consider: “When executors waste or mismanage the estate.” (Sec. 30.)“When he fails to make settlement after being cited.” Sec. 113.
In this case the executor had filed no inventory, no appraisement, had failed to account for moneys in his hands belonging to the estate, and had failed to make an account when cited for that purpose. He was therefore guilty of “wasting and mismanaging” the estate, and, under section 30, his removal was proper.
It is objected that the executor should have been attached before making the order of removal. The purpose of an attachment is to enable the court to enforce its orders more effectually, by fine or imprisonment. The executor can not complain that he is now severely dealt with, nor deny the validity of the entire action of the court because it did take this extreme measure. The manner of exercising the power of removal can not be questioned in this collateral proceeding. Young v. Lorrain, 11 Ill. 633.
The county court having a general jurisdiction of unlimited extent when adjudicating upon matters incident to the administration of estates, as liberal intendment will be granted in its favor as to a circuit court. Probst v. Meadows, 13 Ill. 169; Von Kettler v. Johnson, 57 Id. 109; Moffit v. Moffit, 69 Id. 641; Bostwick v. Skinner, 80 Id. 148; People v. Cole, 84 Id. 327.
If it is possible for the court to have jurisdiction, it will be presumed the state of facts existed which authorized its action. Wallace v. Cox, 71 Ill. 548.
If the jurisdiction of the court extended over that class of cases, it was the province of the court to determine for itself whether that particular case was one within its jurisdiction. Cox v. Thomas, 9 Gratt. 323.
The case of Munroe v. People, 102 Ill. 406, cited below, has no points of similarity with this.
Mr. M. W. WEIR, Mr. W. C. KUEFFNER, and Mr. GEORGE GREEN, for the appellee:
The citation on which the order of removal is based was not in evidence. It must, therefore, be presumed to have been what the order says it was,--a citation to make settlement. On a citation to make settlement or show cause for not paying a claim, an order of removal is a nullity, for want of jurisdiction. Munroe v. People, 102 Ill. 406.
Section 30 of the Administration act cited, authorizes a removal when an executor wastes or mismanages an estate. A failure to file an inventory, appraisement, accounts, or to make settlements when cited, is not a “wasting or mismanaging” of the estate, and the case before the court did not charge these matters.
Section 113 provides that if the executor shall fail to appear in obedience to a citation to make a settlement, “the court shall order an attachment,” etc., and upon his failure “to make settlement under the order of the court, after having been so attached, he may be dealt with as for contempt, and shall be forthwith removed by the court.” Under this section, to authorize the removal a citation to make settlement must be issued, and failing to appear, an attachment must be issued. These are jurisdictional prerequisites.
To render a grant of administration de bonis non valid, the office must be vacant by death, resignation or removal of the preceding administrator. Rambo v. Wright, 32 Ala. 363; Mathews v. Martin, 37 Id. 273; Munroe v. People, 102 Ill. 406; Creath v. Brent, 3 Dana, 129.
This is an appeal from a judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of St. Clair county disallowing a claim in favor of Thomas Hanifan, the appellant, as administrator de bonis non of the estate of Mary Hayes, deceased, against Henry M. Needles, the appellee, as administrator de bonis non of John Short, deceased, the proceeding having originally been commenced in the county court, from whence it was taken to the circuit court by appeal. Mary Hayes died testate some time in 1852, or thereabouts, and John Short became her executor, and the present suit is prosecuted against his estate for an alleged breach of duty as such executor.
In the view we take of this case it will not be necessary to make an extended statement of the facts, or to notice all the questions mooted by counsel in the argument. The evidence tends to show that John Short, as executor of Mary Hayes, administered certain property belonging to her estate, the proceeds of which were never accounted for by him in his lifetime, or by his legal representatives since his decease, and the present suit is brought to recover the proceeds of that property.
It is a well recognized rule of the common law that the powers and duties of an administrator de bonis non are limited to the administration of such effects belonging to the decedent's estate as have not already been administered by the former executor or administrator, and that consequently he has no right or authority to call on the latter, or his legal representatives in case of his decease, to account to him for the proceeds of such estate, or for its mismanagement, or for any breach of duty respecting it. In such case he or his legal representatives are liable directly to the heirs, devisees, next of kin and creditors, as their interests may be. ( Rowan v. Kirkpatrick et al. 14 Ill. 8; Newhall v. Turney, Id. 338.) That this is the settled law in the absence of any statutory provisions on the subject, is not denied, and that the sale, and conversion of the testatrix' property into money by Short, the proceeds of which are now sought to be recovered, was an administering of such property, within the meaning of the rule, is equally clear. ( Marsh v. The People, 15 Ill. 286; Beall v. New Mexico, 16 Wall. 541.) It therefore conclusively follows, this proceeding can not be maintained on common law grounds,--and this, indeed, is not seriously, if at all, questioned. Our statute, however, has provided the county court, in certain contingencies, may revoke the letters of an executor or administrator and remove him from office, and upon such revocation and removal appoint another in his stead; and by another provision of the statute it is expressly provided that where one is appointed to fill a vacancy caused by the removal of an executor or administrator, he may maintain any appropriate action or proceeding against such removed executor or administrator for any waste, mismanagement of, or breach of duty with respect to, the estate, occurring during the latter's administration. Sec. 39, chap. 3, Rev. Stat. 1874.
Under the provisions of the statute just referred to, counsel for appellant claim that by an order of the county court of St. Clair county, duly made and entered of record on the 21st day of May, 1877, the letters of John Short were revoked, and that he was removed from office, and that by a subsequent order of the court appellant was duly appointed in his stead. On the other hand, appellee insists the so-called order of revocation and removal was made by the county court without authority, and that the same, by reason thereof, was and is absolutely void, and that the said John Short continued to be the lawful and acting executor of the said Mary Hayes till the time of his death, which occurred on the 19th of June, 1877.
The order of the county court, relied on by appellant to establish the revocation of Short's letters and his removal, is in these words:
+-----------------------------------------------------------------------------+
¦“THE PEOPLE, etc. ¦)¦ ¦
+-------------------------------------------+-+-------------------------------¦
¦ ¦)¦May 21, 1877, citation to make ¦
¦ ¦ ¦settlement. ¦
+-------------------------------------------+-+-------------------------------¦
¦vs. ¦)¦ ¦
+-------------------------------------------+-+-------------------------------¦
¦JOHN SHORT, Executor of the estate of Mary ¦)¦ ¦
¦Hayes, deceased. ¦ ¦ ¦
+-----------------------------------------------------------------------------+
And now, on the first Monday of the term, it appearing to the court that John Short, the executor, was duly cited to appear this day in court and present his accounts of said estate for settlement as said executor; and it further appearing to the court that said executor has failed to file an inventory and appraisement of said estate, and he has failed to file settlements, and has failed to account for moneys that came into his hands as such executor, and has also failed to appear this day and make settlement of his accounts,--for...
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