Harward v. Robinson

• Citation: 14 Ill.App. 560,14 Bradw. 560
• Parties: THOMAS HARWARD ET AL.v.HENRY ROBINSON, Adm'r, etc.
• Decision Date: 28 February 1884
• Court: United States Appellate Court of Illinois

14 Ill.App. 560

14 Bradw. 560

THOMAS HARWARD ET AL.

v.HENRY ROBINSON, Adm'r, etc.

Appellate Court of Illinois, Fourth District.

February Term, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April, 18, 1884.

Messrs. HAPPY & TRAVOUS, for appellants; that as the funds of the estate were deposited in the individual name of the administrator, and not as administrator, and while so deposited were lost by the failure of the bank, the administrator is personally liable for the same, cited 2 Story's Eq. Juris. § 1270; Perry on Trusts, §§ 441, 443 and 448; Webster v. Pierce, 35 Ill. 158; Williams v. Williams, 55 Wis. 300.

As to the $1,600 rebated by the creditors from their claims, the principle of equity is that trustees and others sustaining fiduciary relations can not deal on their own account with the thing or the persons falling within that trust or relationship: Thorp v. McCullum, 1 Gilm. 614; Dennis v. McCagg, 32 Ill. 430; Phelps v. Reeder, 39 Ill. 173; Lockwood v. Mills, 39 Ill. 602; Wingate v. Pool, 25 Ill. 118; Nelson v. Hayner, 66 Ill. 487; Whitney v. Peddicord, 63 Ill. 249; Cookson v. Richardson, 69 Ill. 137; Hough v. Harvey, 71 Ill. 72.

As to when an administrator should be charged with interest: R. S. Ch. 3, § 113; Horner's Probate Practice, § 309; Hough v. Harvey, 71 Ill. 72.

Messrs. METCALF & BRADSHAW, for appellee; cited Parsley v. Martin, Reporter of Boston, September 19, 1883; Beasley v. Watson, 41 Ala. 234-9; Bank v. Coleman, 20 Ala. 140; McTyer v. Steel, 20 Ala. 487; Estate of Schofield, 99 Ill. 513.

If an administrator act honestly and prudently, though there be a loss to, or a total diminution of the intestate's estate, he will not be liable: Christy v. McBride, 1 Scam. 75; Whitney v. Peddicord, 63 Ill. 249; Voorhees v. Stoolhoff, 11 N. J. 145; Deleny v. Ivey, 2 Jones, (N. C.) Eq. 370; Webb v. Bellinger, 2 Desaus, S. C. 482; State v. Meagher, 44 Mo. 356; Merritt v. Merritt, 62 Mo. 150; Fudge v. Dunn, 51 Mo. 264; 2 Story's Eq. Juris., 1269; Furman v. Coe, 1 Cal. 96; Raynor v. Prescott, 3 Johnson, Ch. 578; Rubottom v. Morrow, 24 Ind. 202; Mikell v. Mikell, 5 Rich. 220; Noble v. Jones, 35 Tex. 692; Dorchester v. Effingham, Tamlin, 279; Key v. Jones, 52 Ala. 238.

BAKER, J.

This controversy arises upon the final settlement of an administrator. Prior to May 21, 1879, the administrator, without any authority from the court, deposited the funds of the estate in the Broadway Bank of St. Louis, Missouri. The money was deposited in his individual name, but it appears he informed the teller of the bank at the time of the deposit, that it belonged to the Harward estate. It was not mingled with funds of his own, but was mingled by the deposit with other trust funds also in his custody. At the date mentioned the bank failed, there then being to the individual credit of appellee, in said deposit account, the sum of $7,359.86. Of this sum he claimed $5,263.19 was money of the Harward estate. Subsequently a dividend of fifty cents was paid by the bank. The administrator, in his report, claims a credit for $2,631.60, so lost by the failure of the bank, and for $290.29 for expenses incurred in looking after said bank matter. The exceptions filed by the heirs to these two items were overruled by the circuit court and the items were allowed the administrator as credits. Where an administrator deposits, in his own individual name, funds of the estate in a bank which fails while holding such deposit, the loss is his own and not that of the estate; and this though he had no other funds in such bank, and informed its officers at the time of making the deposit that the funds were held by him in trust. See Williams, adm'r, v. Williams, 55 Wis. 300. In the case cited there is a very full and satisfactory discussion of the authorities; and it were a work of supererogation to now go substantially over the same ground. This case is stronger than the Wisconsin case in that the fund was mixed with other funds. The test is the loss of the identity of the trust fund, the placing it in such condition as that it has no ear-marks, the having it in such shape as that it has impressed upon it no sign or indication of the specific trust to which it belongs.

The decision of the Supreme Court in the matter of the estate of Schofield, 99 Ill. 513, is not in point. The question there considered was as to, under what circumstances, in view of the provision of our statute in that regard, an administrator is chargeable with interest on the trust fund. Had the money there on deposit been lost by the failure of the bank, there is no doubt the administrator would have been liable. Had the administrator when he first collected the money put it in his pocket-book and mingled it with his own money, and it had been lost, he would have been liable; and yet, if under like circumstances it were not lost, he would not, under our statute, be chargeable with interest from the time he collected it. Again, Section 85, Chapter 3, R. S., provides, among other things, that no administrator shall, without the order of the court, remove any property wherewith he is charged by virtue of his letters, beyond the limits of this State, and that in case he does so remove any such property, judgment shall be rendered against him and his securities for the full value thereof, and such other damages as the parties interested may have sustained by reason thereof. The intention of this statute is to keep the trust property within the territorial limits of the State, and thereby within the jurisdictional reach of the court in which administration is had. The administrator then, when he removed the property from the State without any authority from the court and carried it into the State of Missouri, did an unlawful act and one expressly prohibited, and that too under severe penalties, by the statute. As a result of this unlawful act the trust fund was lost. Without the fact of the subsequent loss the statute, in express terms, made both him and his sureties personally liable for the full value of the property and for damages.

It were strange if the consequent actual loss and damage, instead of aggravating the offense, should have the effect to...