People v. Stacy

• Decision Date: 31 May 1882
• Citation: 11 Ill.App. 506,11 Bradw. 506
• Parties: THE PEOPLE, use, etc.,v.MATTHEW STACY ET AL.
• Court: United States Appellate Court of Illinois

11 Ill.App. 506

11 Bradw. 506

THE PEOPLE, use, etc.,

v.MATTHEW STACY ET AL.

Appellate Court of Illinois, Third District.

May Term, 1882.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Morgan county; The Hon. CYRUS EPLER, Judge, presiding. Opinion filed October 28, 1882.

Mr. W. H. BARNES and Mr. CHAS. A. BARNES, for plaintiff in error; that the finding of the county court is binding upon the sureties, cited Ammons v. The People, 11 Ill. 6; Ralston v. Wood, 15 Ill. 159; Gilbert v. Guptil, 34 Ill. 140.

Mr. WILLIAM THOMAS, for defendants in error, cited Dustin v. Hodgen, 47 Ill. 125; National Bank v. Diefendorf, 90 Ill. 396; Booth v. Stone, 75 Ill. 439; Creighton v. Smith, 78 Ill. 250; Miller v. Stewart, 9 Wheat. 680; Waltham v. Simpson, 2 Gilm. 320; Reeves v. Stearn, 2 Hun, 647; Shidow v. Smith, 8 Bush, 601; Allcot v. Helat, 22 La. An. 308; Sharp v. Bedell, 5 Gilm. 88.HIGBEE, J.

This was an action of debt by the People for the use of the legatees of Nicholas King, deceased, against defendant Stacy, as executor of the last will and testament of said Nicholas King, and the other defendants as sureties on his executor's bond.

The declaration among other things avers, in substance, that on the 18th day of February, 1878, on a settlement of the accounts of said executor, the County Court of Morgan county in said State, where the letters testamentary had been granted, found that there was due to the persons for whose use this suit is brought, from said Matthew Stacy, as executor of said Nicholas King, the sum of $5,459.73, and then ordered the executor to pay the same, which, after demand and offer of a refunding bond, he refused to do.

To this declaration, defendants in error William Thomas and Jonathan Neely, who were sureties on said executor's bond, filed their plea averring, and setting up matter tending to show that there was not due from the executor to said legatees the sum so found by the county court, but said plea did not attempt to impeach said order for fraud, or to show a want of jurisdiction over the subject-matter of said order or the person of said Stacy, the executor. The plea was demurred to by plaintiffs below, and the demurrer overruled by the court, when, plaintiffs abiding by their demurrer, a judgment was rendered against them and in favor of defendants in error.

Was the demurrer properly sustained to this plea?

The statute confers upon county courts jurisdiction in all matters of probate and settlements of estates of deceased persons. Chap. 37, Sec. 69, Rev. Stat. 1874, p. 339. And as to all matters within its jurisdiction the county court is a court of general jurisdiction, and liberal intendments will be made in its favor. Propst v. Meadows, 13 Ill. 157.

From the averments in the declaration, it would seem that the court, in making the order referred to, was acting within the scope of the power conferred upon it by law; and if so, its order was binding and final, not only upon the executor but upon his securities. They may not have been personally notified of the intended action of the county court, but the law required them to take notice at their peril.

Section 114 of Chapter 3, Rev. Stat. 1874, p. 125, provides that “If any executor or administrator...