Ralston v. Wood

Decision Date31 December 1853
Citation15 Ill. 159,5 Peck 159,1853 WL 4820,58 Am.Dec. 604
PartiesJAMES M. RALSTON et al.v.JOHN WOOD.
CourtIllinois Supreme Court

15 Ill. 159
1853 WL 4820 (Ill.)
58 Am.Dec. 604
5 Peck (IL) 159

JAMES M. RALSTON et al.
v.
JOHN WOOD.

Supreme Court of Illinois.

December Term, 1853.


[15 Ill. 160]

THIS cause was heard before WALKER, judge, at June term, 1853, of the Adams circuit court.

This was a suit in chancery brought by the defendant, Wood, against the legal representatives of his co-securities upon the administration bond of Daniel G. Whitney, as administrator of Nathaniel Pease, deceased, to recover contribution for moneys paid by him as such security, as he insists, to one of the heirs of said deceased.

Wood alleges in his bill substantially that, on the 21st of September, 1836, Daniel G. Whitney and Jacob Perkins were, by the probate court of Adams county, Illinois, appointed administrators of said deceased, and executed a bond as such (which is in the statutory form) in the penalty of $30,000, with himself, Samuel Alexander, Joseph T. Holmes and Joseph Milnor Higbee, as securities thereon; that Pease, being a resident of said county, died intestate in July, 1836, leaving three children, his sole heirs at law, and a large estate, both real and personal; that Whitney was the sole acting administrator, and received assets of the estate of said deceased to a large amount, exceeding the liabilities of said estate, and belonging to the heirs of said deceased; that, on the 17th of May, 1847, he exhibited his account in said probate court for a final settlement of his said administration; that by said account it appeared there was due and owing from him to Nathaniel Pease, Jr., son of one of the heirs of deceased, on account of his distributive share in said estate, $5,870.14; that said account was allowed; that said sum was adjudged against said Whitney as administrator as aforesaid, and in favor of said Pease, Jr., as such heir as aforesaid, and that said Whitney was forthwith ordered to pay the same.

That Whitney having neglected to pay said money, though demanded, said Pease, Jr., caused a suit to be brought upon said administrator's bond for his use against said Wood as surety thereon, in the circuit court of said county, to recover said sum, in March, 1848, and that, on the 14th of June, 1848, he recovered a judgment therein against said Wood for the penalty and $6,248.39 damages, and costs of suit, amounting to $14.50; and that, on the 9th of August, 1848, said Wood paid said Pease $6,317.75 in satisfaction of said judgment.

[15 Ill. 161]

Wood further alleges that said Whitney and Perkins were both insolvent; that said Holmes and Higbee had both died insolvent; and that in December, 1836, said Alexander died intestate, leaving as his sole heirs at law his children Jane S. Ralston, wife of James H. Ralston, Jacob S. Alexander, Perry Alexander, Sally Ann Johnston, wife of Frederick G. Johnston, Esther L. Alexander and Mary Elizabeth Alexander, and also valuable real estate which descended to them; that said Jane had died, leaving as her sole heir Elizabeth Jane Ralston, then and still an infant, her daughter by said James, and that she inherited the interest of her mother, subject to the rights of said James, as husband, in the estate of said Samuel Alexander.

Said Whitney and Perkins, and the heirs and personal representative of said Holmes, Higbee and Alexander, are made defendants to the bill.

The bill prays for contribution from the defendants according to their ability to pay out of property inherited by them from their respective ancestors; and that the amount for which the said heirs of said Alexander be liable, be made a charge upon the lands inherited by them.

The record shows that after the bill was filed and before hearing, the said Jacob S. Alexander died intestate, leaving his brother and sisters and said Elizabeth Jane Ralston his sole heirs; that they inherited his interest in the estate of said Samuel; that said Esther married George Summers, who had also died, and that said Mary married Alonzo M. Swartwout, and died leaving an infant child, Alexander C. Swartwout, by her said husband, and who inherited her interest in her father's estate; said Summers and Swartwouts were made defendants to the suit.

Perkins, and the representatives of Samuel Alexander, answered the bill.

The answer of Alonzo M. Swartwout (and the others are substantially like it, and therefore unnecessary to be noticed), after admitting the appointment of Whitney as administrator of Pease, his sole administration of said estate, and the receipt by him of a large amount of assets belonging to said estate as alleged in the bill, alleges, in substance, that on the 6th of May, 1837, said Whitney was, by the aforesaid probate court, duly appointed guardian of said Nathaniel Pease, Jr., one of the heirs of his intestate, and executed a bond as such (which is in the statutory form) in the penalty of $40,000, with said Wood and Higbee, and one James B. Mathews, his securities therein; that said Whitney at the time of his said appointment as guardian, having in his hand a large amount of funds received from said assets,

[15 Ill. 162]

to which his ward was entitled on account of his distributive share in said estate, retained the same as such guardian, and from time to time thereafter received other like funds, and made like retainer of the same; that said Whitney, prior to January, 1840, had, as administrator, received from said assets, and as guardian retained for his ward, $7,646.98, to which his ward was entitled, the same being the one-third of what he had received from said assets over and above paying the debts of said estate and the costs of administering, and had also as such guardian received $1,584.61, as interest on the money thus retained; that on the 1st of January, 1840, there was a balance against him as guardian in favor of his ward of $8,158.80, on account of the money thus retained by him, and interest thereon; that on the 30th of October, 1840, said Whitney, as guardian as aforesaid, for the purpose of rendering an account to said probate court of his guardianship, filed an account in said court, showing the amount received and paid out by him as such guardian prior to January 1, 1840, from which it appeared there was a balance against him of the sum last above named, and that said account was duly approved and allowed by said court; that said Whitney had, prior to January, 1840, fully administered said estate and paid off all the debts of the same and the costs of administration, and had also paid the other heirs of his intestate their distributive share in the assets of said estate; that at...

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    • United States
    • Utah Supreme Court
    • 27 Marzo 1919
    ... ... Downey, 63 Cal. 520; ... Jenkins v. State, 76 Md. 255, 23 A. 608, 790; ... Baggott v. Boulger, 9 N.Y. Super. Ct. 160; Ralston ... v. Wood, 15 Ill. 159, 58 Am. Dec. 604 ... Discharge ... of surety by decree in probate. State v. Burkam, 23 ... Ind.App. 271, 55 ... ...
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    • 16 Octubre 1900
    ...v. Lodge, 37 Mass. 53, 20 Pick. 53; Garber v. Com., 7 Pa. 265; Salyer v. State, 5 Ind. 202; People v. White, 11 Ill. 341; Ralston v. Wood, 15 Ill. 159 at 160; Holden v. Curry (Wis.) 55 N.W. 965; Jenkins v. State (Md.) 23 A. 608. This rule is firmly settled in Wisconsin. See Meyer v. Barth, ......
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    • North Dakota Supreme Court
    • 16 Octubre 1900
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