Mason v. Bair

• Decision Date: 31 January 1864
• Citation: 33 Ill. 194,1864 WL 2908
• Parties: JOHN L. MASON et al.,v.JACOB M. BAIR.
• Court: Illinois Supreme Court

33 Ill. 194

1864 WL 2908 (Ill.)

JOHN L. MASON et al.,

v.JACOB M. BAIR.

Supreme Court of Illinois.

January Term, 1864.

APPEAL from Circuit Court of Randolph county.

Bill in chancery filed by appellee against appellants, as heirs of G. H. Mason, deceased, for the specific performance of an alleged verbal agreement, made by said Mason to convey the land in question to appellee, and to enjoin the prosecution by appellants against appellee of an action of ejectment commenced by them therefor.

The facts are stated by the court.

Thomas G. Allen, for appellants.

H. K. S. O'Melveny and W. H. Underwood, for appellee.

WALKER C. J.

The first assignment of error on this record questions the correctness of the order requiring the defendants to answer the bill. A demurrer had been filed to the bill, and sustained to so much of it as made R. C. and Mary Petitt defendants, and the bill was dismissed as to them. By the same order, the other defendants were required to answer by the first day of the next succeeding July. The specific grounds of demurrer were, a want of equity apparent on the face of the bill; that it was multifarious, and that the Petitts were improper parties. The order dismissing the bill as to them, and requiring the other defendants to answer the bill, fails, in terms, to overrule the demurrer on the first two grounds specified, or to sustain it to the bill. Sustaining the demurrer as to one of the grounds, and requiring an answer to that portion of the bill to which the demurrer had been filed, manifestly overruled it by implication. No other inference can be indulged. We are, therefore, of the opinion that the demurrer was disposed of, when the order for an answer was made, and this error is not well assigned.

As to the second assignment of errors, no notice was required to take evidence in open court on the hearing. The parties had been brought into court by service of process. They were bound at their peril to be present when the evidence was heard as much as when any other step was taken in the cause. It was their duty to be in court until a final decree was entered. The hearing of oral testimony has no analogy to taking depositions, and the law regulating them has no application. It is true that the evidence thus heard must be preserved in the record, but that may be done by the master reducing it to writing, as it was done in this case, or by any one else, or it may be embodied in the decree.

It is objected, that when the evidence was first taken, it should have been reduced to writing, and preserved in the record, and failing to do so is error. This, no doubt, would be a convenient practice, but there is no statutory requirement rendering such a practice necessary. Nor has this court announced such a rule. It is only necessary that such evidence appear in the record, and the court below must be left in the exercise of its discretion as to the time when, and the mode in which, it is placed in the record, so it shall be by the time the decree is rendered and filed. And if from accident the evidence thus taken should be lost or forgotten, before the decree was rendered or filed, it would be the manifest duty of the court, on application of the party, or, if a decision had not been made, on his own motion, to have the evidence retaken, that it might be understood by the court and preserved in the record. No possible reason is perceived why the court, when it had forgotten the evidence, and when it had not been reduced to writing and preserved in the record, should not be permitted to have the witnesses recalled and the evidence reheard. ¹ A different practice could only produce delay, increase expense and answer no beneficial end. There is no force in this objection.

It is again urged, that the court erred in allowing the bill to be amended after the replication was filed and the cause had been submitted on the evidence. Such amendments are allowed in furtherance of justice. They are within the discretion of the chancellor trying the cause, and unless it appears, that such an amendment has worked injustice or great hardship to the defendant, the exercise of the discretion will not be controlled. Jefferson County v. Furguson, 13 Ill. 33. Neither occurred in this case, as at the time the leave was given to amend, the cause was continued until the next term, giving the defendants ample time to meet the amendments by proof if they had it. There is no weight in this objection. The fourth assignment of errors questions the correctness of the decision of the court, in overruling the motion to strike out the interlineations in the bill, alleged to have been made as amendments. There is no evidence in the record from which it can be inferred, that they were made after the bill was filed. For aught that appears they may have been a part of the bill as originally drafted. We can indulge no presumption that they were subsequently made. On the contrary, we must presume that the court below had evidence that they were a part of the original bill, or, at least, that there was no evidence that they constituted the amendments. There is nothing in this objection.

The fifth error is not well assigned. The evidence was not in depositions, but simply evidence taken in open court, and reduced to writing by the master. The objection taken could only apply to depositions. No objection appeared to the manner in which it was done in this case. It in all respects appears to have been regularly and properly preserved.¹

What has already been said in reference to the third assignment of error applies to the sixth,² and renders its discussion unnecessary. They both depend upon the same principles, and the same reasoning applies equally to each.

The seventh assignment of errors questions the correctness of the action of the court in receiving the certificate³ of the clerk of the County Court, as evidence of the indebtedness of Mason's estate to defendant in error, and because it is alleged that it was not pertinent. The law has provided that persons having claims against the estates of deceased persons, shall, within two years after letters are granted, present the same for allowance, or be barred of their recovery, unless from subsequently discovered assets. Where claims are thus presented and allowed against the estate, the allowance is conclusive upon the executor or administrator, and has the force and effect of a judgment until it is reversed. Propst v. Meadows, 13 Ill. 157. The estate, when these claims were allowed, became liable to pay them out of the assets of the estate in due course of administration.

But, as this is a proceeding against Mason's heirs to divest them of title descended to them from their father, and as they were not formally parties to the proceeding in the County Court allowing these claims, it may become material to determine whether they were bound by the allowance. The 95th section of the statute of wills, manifestly contemplates that the heirs are parties or may become parties to such proceedings.¹ It provides that when a claim is presented against the estate for allowance, if the administrator, widow, guardian, heirs, or others interested in the estate, shall not object, the claimant shall be permitted to swear to his claim. This section gives the heirs the right to be present and contest the justice of the claim. Having this right, the adjudication of the court in allowing the claims, must be held prima facie binding upon the heirs, although they may have neglected to avail themselves of the right to contest its allowance. Stone v. Wood, 16 Ill. 177; Hopkins v. McCann, 19 Id. 113. There was no evidence offered to show that these claims were unjust, and being conclusive against the personal estate of deceased, and prima facie binding upon the real estate as against the heirs, they were evidence until rebutted.

Then was this evidence material to the issue in this case? We think it was. The evidence in the case shows that defendant in error purchased the land in controversy for four hundred and fifty dollars, to be paid by satisfying and discharging that amount of Mason's indebtedness. It also appears that independent of these allowances he had paid debts owing by Mason, the sum of three hundred and eighty-eight dollars, and something over which the witnesses...