Perry v. Carmichael
| Decision Date | 16 June 1880 |
| Citation | 95 Ill. 519,1 Ky.L.Rptr. 155,1880 WL 10065 |
| Parties | SEELY PERRYv.JENNIE CARMICHAEL et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.
In June, 1859, Marshall H. Regan (then a resident of Illinois) and his wife, Lucinda M. Regan, and their daughter, Marian Regan, were traveling in Indiana on the Michigan Southern and Northern Indiana railroad, when the wife and daughter were both killed in what was known as the “Mishawaukee accident,” as was claimed, by the wrongful act or omission of the railroad company.
By a statute of Indiana, in force at that time, it was provided in section 27 that a father * * * may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward,” and in sec. 784, that,
By another statute it was provided that the net proceeds of estates of deceased persons, in case of residence in another State, “shall be distributed according to the laws of that State.”
In October of that year, Seely Perry, of Winnebago county, Ill., at the request of Marshall H. Regan, was appointed by the county court of that county administrator of the estate of Lucinda M. Regan, deceased, and also administrator of the estate of Marian Regan, deceased. This was done for the sole purpose of instituting actions in Indiana for the recovery of damages from this railroad company.
During the spring of 1860, Mr. Regan instituted, in the Circuit Court of the United States, in Indiana, actions against the railroad company, and in the name of Seely Perry, as administrator, and with his consent, for the injuries in question. While these actions were pending, and about August, 1860, a successful negotiation was made by Mr. Regan with the railroad company for the settlement of the controversies involved in these actions and for the damages, if any, for which the company was liable on account of each of these injuries, but the agent of the company demanded as a condition that each release should be executed by Perry as administrator and approved by Regan.
As a result of that negotiation, a settlement was agreed upon by Regan and the railroad company and approved by Perry, and the following papers were executed by Perry and signed by Regan and delivered by Regan to the agent of the railroad company:
“Received from the Michigan Southern and Northern Indiana Railroad Company the sum of $1900, in full of all damages claimed by me as administrator of the estate of Lucinda M. Regan, growing out of or connected with the death of said Lucinda, or otherwise against said company, and to recover which an action has been commenced by me as such administrator against said company in the United States Circuit Court for the District of Indiana, and in consideration of said sum, I, as such administrator, do hereby release said company from any and all liability for such damages, if liability there may have been, and I agree that said suit shall be dismissed.
Witness my hand and seal this -- day of September, A. D. 1860.
SEELY PERRY, Admr. (Seal.)
Attest: GEORGE M. GRAY.
For the consideration above stated, I hereby concur in the above release and in the above mentioned settlement, and agree with said company that said release and settlement shall be final and conclusive.
MARSHALL H. REGAN.
Attest: GEORGE M. GRAY.” “Received from the Michigan Southern and Northern Indiana Railroad Company the sum of $1900, in full of all damages claimed by me as administrator of the estate of Marian Regan, growing out of or connected with the death of said Marian or otherwise, against said company, and to recover which an action has been commenced by me as such administrator against said company in the United States Circuit Court for the District of Indiana, and in consideration of said sum, I, as such administrator, do hereby release said company from any and all liability for such damages, if liability there may have been, and agree that said suit shall be dismissed.
Witness my hand and seal this -- day of September, A. D. 1860.
SEELY PERRY, Admr. (Seal.)
Attest: GEORGE M. GRAY.
For the consideration above stated, I hereby concur in the above settlement and release, and agree with said company that said settlement shall be final and conclusive.
MARSHALL H. REGAN.
Attest: GEORGE M. GRAY.”
In consideration of these releases and vouchers, $900 in cash was paid to Marshall H. Regan, and a note was delivered to him in addition, payable to his order, for the sum of $1000, signed by the railroad company and personal security. All this was done with the knowledge and approbation of Perry. The $1000 mentioned in the note was paid at its maturity. Perry rendered no account to the county court as administrator. Regan was not appointed guardian for his minor children, and no account of this money was ever rendered by him to the children, or any of them. Perry never received personally any of this money, but seems to have left the whole matter to the management of Regan.
Marshall H. Regan married again, and afterwards, in February, 1875, died, intestate, leaving a widow, Adelaide Regan, and five children, his only heirs at law--these children being the children of his first wife, Lucinda M. Regan, who lost her life in the railroad disaster in June, 1859, as stated above.
This suit is a bill filed in the circuit court of Winnebago county, to the January Term, 1876, by Jennie Carmichael. Emma Richardson, George Regan, and by Charles Regan and William Regan, minors, by their next friend, (the children of Marshall H. and Lucinda M. Regan, deceased,) against Perry, and against the administrators of the estate of Marshall H. Regan, deceased, claiming the sum of money received from the railroad company as a trust fund, and interest thereon.
The bill charges that, at the death of their mother, they were all minors, and that they were all minors at the date of the settlement of the suits.
The defendants answered the bill,--Perry, in his answer, insisting that he was not accountable for any part of the fund, and that the estate of Marshall H. Regan was accountable, and that on such account the expenses of bringing suits and obtaining the money should be deducted, and also divers moneys alleged to have been paid out by Mr. Regan, about the burial of his wife and daughter, and alleged to have been paid to, or laid out for, the complainants by Mr. Regan in his lifetime. The answer also interposes the Statute of Limitations as a defence.
Perry also filed a cross-bill setting up the same matters and asking that the estate of Regan be held alone responsible, and that the administrators of that estate be required to pay whatever claim the complainants may have in this regard, and praying “for such further and other relief,” etc.
The circuit court ordered this cross-bill to be stricken from the files, on motion of complainant in the original bill.
Replications were filed, proofs taken, etc., and on final hearing the court decreed as follows:
“The above cause coming on to be heard upon complainants' bill, defendants' answers, the replications thereto and the testimony, and the court having heard the testimony and the arguments of counsel, doth find that said Marshall H. Regan, as trustee for complainants, did receive moneys into his hands belonging to complainants, and one Henry Regan, since deceased, (which Henry Regan died, leaving complainants as his heirs) for which the estate of said Marshall H. Regan is now justly and equitably liable to complainants in their own right, (omitting all claims for the share of said Henry Regan) for the sum of $875, after allowing all just and equitable deductions and set-offs, which now justly and equitably belongs to said complainants, share and share alike, one-fifth thereof to each, and that the said Marshall H. Regan, also in his lifetime, with the knowledge, permission and consent of said defendant Seely Perry, received into his hands other moneys belonging to said Seely Perry, as administrator, as charged in complainants' bill, and which said Seely Perry receipted for and permitted said Regan to take and keep, when it then and there was the duty of said Seely Perry to have taken and accounted for the same as administrator as aforesaid, which equitably belonged to the complainants and said Henry Regan, and which it was the duty of said Perry to have taken himself and paid over to these complainants and said Henry Regan, and for which said Perry, in his own right, and the estate of said Marshall H. Regan, are jointly and equitably liable to complainants in the sum of $1166.66, omitting all claims for the share of said Henry Regan, which moneys belong to complainants, share and share alike. And it further appearing to the court that, by agreement of parties, the shares of said Henry Regan in both of said funds have been excluded from the case, and all claims for the recovery of the same have been abandoned, and it appearing to the court that the other averments of complainants' bill are true: It is therefore ordered, adjudged and decreed, that the said defendants, John Lake and Adelaide Regan, as administrators of the estate of Marshall H. Regan, pay to the complainants, share and share alike, one-fifth to each, or to complainants' solicitors, for the said complainants, the said sum of $875, in due course of administration.
And that the said Seely Perry, and the said John Lake and Adelaide Regan, as administrators of Marshall H. Regan, as aforesaid, jointly pay the complainants the said sum of $1166.66, and that the same stand as a joint judgment in favor of complainant...
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