Lynch v. Rotan

• Decision Date: 30 November 1865
• Citation: 1865 WL 2949,39 Ill. 14
• Parties: JOHN LYNCH et al.v.JOHN M. ROTAN et al.
• Court: Illinois Supreme Court

39 Ill. 14

1865 WL 2949 (Ill.)

JOHN LYNCH et al.

v.JOHN M. ROTAN et al.

Supreme Court of Illinois.

November Term, 1865.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

John M. Rotan died in 1837, leaving a widow, Cynthia, and John M. Rotan, Byron Rotan, Susan Jane and Nancy Rotan, his children. The widow, Cynthia, married Willis Smith, and he was afterward appointed guardian of these children, who were all in their minority, executing bond, with several sureties, two of whom subsequently died. Money belonging to these children came to the hands of the guardian, and after having made one settlement with the Probate Court of Marion county, he also died.

Susan Jane Rotan, one of the children, died in 1854, in her minority, without issue, and never having married. The surviving children, together with Cynthia, their mother, exhibited their bill in chancery against the surviving sureties of Willis Smith, as guardian, for an account, and alleging that the settlement made by the guardian with the Probate Court was in fraud of the rights of the complainants. The surviving children sought to recover their original interests, which came to them from their father, and also the portion which they severally took in the share of their deceased sister, Susan Jane; Cynthia, their mother, claiming the portion which she inherited on the death of Susan Jane Rotan.

The court decreed in favor of the complainants, and the defendants thereupon sued out this writ of error.

The questions arising on the record are: First, whether a court of chancery has jurisdiction of the suit; second, whether the personal representatives of the deceased sureties ought not to have been made parties defendant, and, herein, within what time the objection, for want of proper parties, may be taken; and, third, whether letters of administration should not have been taken out on the estate of Susan Jane Rotan, and her administrator made a party complainant.

Mr. B. B. SMITH, for the plaintiffs in error.

For all the grievances alleged in the bill, the complainants had a clear and adequate remedy at law, and in such case a court of equity will not relieve. Story's Eq. Pl. 373; Stone v. Manning, 2 Scam. 531.

2. The bill pretends to seek discovery of the sureties, but expressly waives their oaths. A bill of discovery must ask an answer under oath. Story's Eq. Pl., § 311. If discovery is asked and fails, the bill ought to be dismissed. 1 Gilm. 210. Appellee obtained no discovery, therefore the bill ought to have been dismissed.

3. Relief is asked in equity in this case on the ground that the guardian committed fraud in making settlement with the Probate Court. No evidence of fraud is shown by appellee, and if it be held that the guardian committed fraud there is none proven against these defendants. Fraud must be proven. The court cannot infer it. Wright v. Grover, 27 Ill. 430. To constitute fraud there must be an intention to deceive. 1 Scam. 500.

4. Bill does not allege fraud against defendants. To give the court jurisdiction over them on the ground of fraud they must be alleged to have participated in it.

5. The court erred in rendering decree for complainants for Susan Jane Rotan's interest in the fund, of which she died seized. Her administrator should have been a party to the bill. Personal assets do not vest immediately in the heir, but they do vest in the executor or administrator. 2 Blackstone, p. 420 and note 38; Williams on Executors, note 527.

The administrator of Susan Rotan was a necessary party to the bill. Story's Eq. Pl. § 170, p. 217.

6. The administrators of the co-obligors of appellants are necessary parties to the bill. Story's Eq. Pl. §§ 170, 172, 173, 174, p. 219.

Want of parties to a bill may be raised at the hearing. 1 Bail. Ch. Pr.

Messrs. O'MELVENY & MERRITT, for the defendants in error.

A party injured should have the right to select, according to his own judgment in the matter, for his tribunal, such a one as would give him a complete remedy; and though the plaintiff has a remedy at law, if that remedy does not appear as clear, and is doubtful, and not as effective, chancery will exercise a sound discretion in assuming it. Mason v. Piggott, 11 Ill. 89; Truett v. Wainwright, 4 Gilm. 418.

Then only courts of equity will refuse to take cognizance of a cause, when the complaining party has a remedy at law, clear, complete and effective. Frazier v. Miller, 16 Ill. 50.

Courts of equity have a paramount jurisdiction in cases of administration and cases of settlement of estates, and have also a similar and plenary jurisdiction over the persons and estates of infants, and will, in the exercise of that jurisdiction, cause to be done whatever may be necessary to preserve their estates and interests; and it would seem to us that, in this cause, arising from the maladministration of the funds of infants, chancery would assume jurisdiction if the remedy at law even appeared clear. 1 Story's Eq. Jur. chap. 9; Williams on Exrs. pp. 1239, 1240; 2 Story Eq. p. 35; Cowls v. Cowls, 3 Gilm. 435; Grattan v. Grattan, 18 Ill. 171.

In cases of fraud, courts of chancery have always jurisdiction ( Truett v. Wainwright, 4 Gilm. 418), and from the settlement of the guardian as it was made by him, it is plain it was a legal fraud, whether we insisted upon it or not in the final decree.

The law does not favor a multiplicity of suits, and if it is the object of a bill in chancery to prevent this by having the rights of the party at once adjusted and determined by a court of equity, instead of suffering the parties to be harassed by a number of separate suits, chancery would assume jurisdiction. Mitford's Eq. Pl. 145, marg. p.

Mr. JUSTICE BREESE delivered the opinion of the Court:

John M. Rotan died in 1837, leaving a widow, Cynthia, and four children, namely: John M. Rotan, Byron Rotan, Susan Jane and Nancy Rotan, all under age at that time. Their mother, Cynthia, married Willis Smith, and in 1847 he was appointed guardian of these children, and executed a bond with John Lynch, Charles M. Smith, Samuel Craig, Solomon Smith and John Hammers, securities, in the sum of twelve hundred dollars. Money belonging to these children came to the hands of Willis Smith as their guardian, amounting to four hundred and fifty-eight dollars and thirty cents. The guardian removed to Missouri with the children, and died there in 1850. In January, 1848, he made a settlement with the Probate Court of Marion county, in which he had allowances made him, and a balance appeared against him as guardian of about three hundred and forty-four dollars. He left no property in this State, and made no other settlement. Susan Jane Rotan died in 1854, before she arrived at full age, unmarried and without descendants. Of the sureties in the bond, Samuel Craig and John Hammers were dead. The bill was filed against the surviving sureties for a discovery and an account, and to relieve against the settlement made by Willis Smith with the Probate Court, on the allegation that fraudulent claims were allowed thereat, and the prayer is for a decree for the amounts respectively due complainants...