People ex rel. Sterling v. Huffman

• Decision Date: 16 October 1899
• Citation: 182 Ill. 390,55 N.E. 981
• Parties: PEOPLE, to Use of STERLING, v. HUFFMAN et al.
• Court: Illinois Supreme Court

182 Ill. 390

55 N.E. 981

PEOPLE, to Use of STERLING,

v.HUFFMAN et al.¹

Supreme Court of Illinois.

Oct. 16, 1899.

Error to appellate court, Third district.

Action in the name of the people, for the use of John A. Sterling, an administrator c. t. a., against Preston Huffman and another as sureties on a bond. From a judgment in favor of plaintiff the defendants brought error, and the appellate court reversed and remanded the cause, with instructions to find for plaintiff in a less sum. See 78 Ill. App. 345. The plaintiff brings error. Reversed.

Cartwright, C. J., and Wilkin and Boggs, JJ., dissenting.Welty & Stirling, for plaintiff in error.

Sample & Morrissey, for defendants in error.

This action was brought against the defendants, as sureties upon the bond of Joseph Wilson, executor of the last will and testament of Isaac Wilson. The bond is in strict accordance with the form prescribed in section 7 of An act in regard to the administration of estates,' approved April 1, 1872, in force July, 1872. The bond was in the penal sum of $8,000, the estimated amount of double the value of the personal property. The executor and one of his three co-sureties are dead, and a suit is brought by plaintiff in error, who was appointed administrator cumtestament annexo, against the surviving sureties to recover for an alleged breach of that bond.

Joseph Wilson was appointed executor of the following will of Isaac Wilson, deceased: ‘First. I request and direct that my executor shall sell the land owned by me, and described as follows: The north one-half of section 34, town No. 100 north, range 44 west of the fifth principal meridian, in Lyon county, Iowa, and invest the proceeds in land in McLean county, Illinois, to the best of his judgment, for the benefit and use of my wife, Louisa Wilson, during her life and so long as she shall remain a widow, and after her decease or remarriage the same to be equally divided between the surviving heirs of my body. Second. I request and direct that my executor shall collect all notes and accounts due or owing to me, of whatever kind or nature, and the amount so collected, together with the money I may leave at my death, amounting to the sum of $4,000, and invest the said moneys in lands in McLean county, Illinois, as his best judgment may direct, for the use and benefit of my wife during her life and so long as she shall remain a widow, and after her death or remarriage the same is to be equally divided between the heirs of my body. Third. I give and bequeath all the rest, residue, and remainder of my personal property, of what nature or kind soever, to my said wife, Louisa Wilson. Fourth. I hereby appoint Joseph Wilson the sole executor of this will, revoking all former wills be me made. In testimony whereof I have hereunto set my hand and seal this 19th day of May, A. D. 1887.’ Said will was probated September 28, 1887, and Joseph Wilson qualified as executor of the same, gave the bond sued on October 4, 1887, took the oath required by statute, entered upon the duties of his office, and continued to act until the time of his death,-for more than seven years. During that time he filed three reports of his acts and doings as such executor, the last one dated January 12, 1894, and by this report shows that there was in his hands at that time, as such executor, $3,938.68. On March 13, 1889,-more than 17 months after his appointment,-Wilson filed his inventory showing property estimated at $8,627.61, but on which he realized something less than $8,000, which, together with rents and interest reported, amounted to $9,000.85. In his report he itemized the receipts, but reported all moneys, whether the proceeds or personalty or realty, as a single fund in his hands as executor, and paid out of this fund, regardless of whence it came, all items of expenditures, leaving in his hands as such executor at the date of and as per his last report, January 12, 1894, the sum of $3,938.68 aforesaid. The plaintiff seeks to recover $3,938.68 balance, with interest thereon, proceeds of real estate sold October 30, 1890, by the executor, under the foregoing provisions of the will. This balance was the entire amount after allowing the executor all credits claimed in each report, including $1,498.04 expended in the purchase of real estate in Colfax, Ill. It does not appear that the expenditure was questioned in any manner in either the county, circuit, or appellate court.

The case was tried below on a stipulated statement of facts, with all proper counts, pleas, and replications considered filed. That stipulation contains the record and reports in full of the probate court. A summary of such facts shows: (1) The debts are paid; (2) widow's award also paid; (3) the $300 worth of household goods delivered under the third clause of the will; (4) that the personal property, including household goods, amounted to about $3,692.28, the Iowa land sold for $4,480, and the rentals therefrom collected of $180.82; (5) that the debts paid, the widow's award, $300 worth of personal property, and the sum invested in real estate at Colfax, in McLean county, amounted to about $4,509.34; (6) that the executor was appointed and qualified October 25, 1887, and died on September 17, 1894, and his report shows that he did not reinvest the proceeds of the Iowa land, and that he paid out $817.08 more than all the personal property left by the testator; (7) that in the executor's last report he treats the real estate proceeds as a trust fund; (8) that the total received by the executor from all sources was $9,000.85, of which $672 was interest upon $4,480, the price realized from sale of Iowa lands, with which the executor was required by the county court to charge himself in his last report; (9) that the only investment in real estate made by the executor was the purchase of a home for the testator's widow and children in Colfax, McLean county, Ill., which investment was made long prior to the sale of the Iowa real estate, in the purchase and improvement of which he paid $1,198.04 before anything was realized from the Iowa land, the remaining $300 purchase money of Colfax property being paid by the executor March 5, 1891. The proceeds of the Iowa real estate ($4,480) were not received, as shown by the executor's reports, until October 30, 1890. Before that time the executor had paid out $3,730.25. The executor paid out for real estate at Colfax, in McLean county, $1,498.04, of which all but $300 was paid before October 30, 1890, when the proceeds of the Iowa real estate were received. No duty of the executor with reference to the payment of debts, legacies, widow's award, or to the administrationof the personal property of said estate, was left unperformed. The controversy arises over the construction of the law as to the effect of this bond,-as to whether the surviving sureties thereon are to be held liable for the proceeds of the real estate situated in the state of Iowa. The plaintiff in error contends that the bond given under the provisions of section 7 of the act above cited makes the sureties thereon liable for the proceeds of the real estate so directed to be sold, and to be reinvested in real estate in McLean county. The defendants contend that the bond does not cover such real estate directed to be so sold and reinvested.

On the hearing, defendants' counsel submitted five propositions to be held by the court as the law of the case. These were to the effect that the bond sued on was given to secure the proper administration of the personal estate of the testator, and did not secure the proceeds of the sale of real estate authorized to be sold by the terms of the will. All of these propositions were refused by the court, to which refusal defendants excepted, and thereupon the court, of its own motion, prepared and held seven propositions as the law in the case, to the effect that under the bond in this case the defendants, as sureties, were liable not only for any misapplication or misappropriation of funds arising from the maladministration of the personal estate of the intestate, but also for any funds that came into the hands of their principal as such executor, and by him misappropriated; that the law of Iowa, as to the real estate in Iowa in regard to which the principal in the bond in suit was authorized to act under the will, must be held to apply, and that the law of the state of Illinois, in regard to giving further and additional bond in case of sale of real estate, did not apply; that where an executor, by virtue of the power vested in him by the will, is charged with duties that might more properly belong to a trustee, yet when he qualifies as executor, and attempts to carry out the trusts created by a will, he will be held to do so in his capacity as executor until he renounces as executor and qualifies as trustee, and for any waste or embezzlement before qualifying as such trustee the sureties on his executor's bond will be liable. To each proposition so held the defendants then and there excepted.

The trial court entered judgment for plaintiff in error in debt for $8,000, to be satisfied by the payment of damages assessed at $4,230.83. On a writ of error sued out from the appellate court a judgment was entered reversing and remanding the judgment of the circuit court of McLean county, with instructions to the latter court to find for the plaintiff in error in debt for $8,000, to be satisfied by the payment of damages assessed at $724.13, with lawful interest thereon from January 24, 1894, to the date of finding. A writ of error was sued out from this court to the appellate court on that record, and the plaintiff in error assigned as error that the appellate court erred in holding the executor's bond did not cover the proceeds of the Iowa land and in reducing the amount of damages. The defendants in error assigned as cross errors that the appellate court erred in finding any sum of money...