Railsback v. Williamson

• Decision Date: 31 January 1878
• Citation: 1878 WL 9917,88 Ill. 494
• Parties: PHILIP D. RAILSBACK et al.v.PHILIP A. WILLIAMSON et al.
• Court: Illinois Supreme Court

88 Ill. 494

1878 WL 9917 (Ill.)

PHILIP D. RAILSBACK et al.

v.PHILIP A. WILLIAMSON et al.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Tazewell county; the Hon. JOHN BURNS, Judge, presiding.

Messrs. ROBERTS & GREEN, for the appellants.

Mr. C. J. ELLIOTT, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

In 1837, George Miller, by his last will and testament, appointed Thomas F. Railsback, since deceased, guardian of his two children, Elizabeth and Philip Miller. After the death of George Miller, which occurred shortly after the making of the will, the guardian appointed assumed the trust imposed by the will and entered upon its discharge. According to the stipulation found in the record, there came to the hands of the guardian at different times funds belonging to his wards amounting in the aggregate to $3700.53, all of which he accounted for to the probate court, together with the interest and proceeds. On the 13th day of May, 1850, Elizabeth, who had then intermarried with Stephen A. Williamson, had become of age, when her guardian made a final settlement of the funds in his hands before the probate court, and on producing a receipt in full for the amount found to be due to her, on such settlement, it was ordered by the court that the guardian stand discharged from further duties in that behalf. On the 7th day of December, 1857, after Philip Miller, who is one of the complainants, had become of age, he had an accounting with his guardian, concerning his acts as such, and on producing to the court a receipt from his ward for all that was found to be due to him, it was ordered that the guardian stand discharged from all further duties in regard to his trust. That was the end of all proceedings had in the probate court concerning the estates of the wards. In 1853, Elizabeth died, leaving her surviving two children, Philip A. Williamson and Ellen Williamson, who, with Philip Miller, the surviving ward, are complainants in this bill. The matters set forth in the bill, upon which the right to relief is predicated, may be succinctly stated: In 1846, Thomas F. Railsback loaned to one Augustus A. Howell the sum of $150, and as security took a mortgage on the land involved in this litigation. It is charged, the funds used in making that loan were funds belonging to his wards. The note taken was made payable to “Thomas F. Railsback, executor of the estate of George Miller, deceased,” and so he was described in the mortgage. Default having been made in payment of the sum secured, Thomas F. Railsback, describing himself as in the note and mortgage, filed a bill to foreclose the mortgage, and such proceedings were had thereon that a sale of the mortgaged premises was ordered, at which he became the purchaser of the land described in the mortgage, and thereafter-wards treated the land as his own. The object of the bill is to have established, in favor of complainants, a resulting trust in the land and for an account of the rents and profits against the devisees and subsequent purchasers in possession. On the hearing, the court dismissed the bill as to Philip Miller...