Weer v. Gand

• Decision Date: 31 January 1878
• Citation: 1878 WL 9916,88 Ill. 490
• Parties: HENRY H. WEERv.HATTIE B. GAND.
• Court: Illinois Supreme Court

88 Ill. 490

1878 WL 9916 (Ill.)

HENRY H. WEER

v.HATTIE B. GAND.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macoupin county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. S. S. & E. A. GILBERT, for the appellant.

Mr. HORACE GWIN, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

Hattie B. Gand, appellee, presented a claim in the county court of Macoupin county, against the estate of Charles W. Weer, which was allowed in the seventh class of claims. Subsequently, she presented a petition to the county court, praying that her claim be transferred and ordered paid as a claim of the sixth class. This order was granted, and the administrator appealed to the circuit court, where the judgment of the county court was affirmed.

It appears that Charles W. Weer, deceased, was, in his life-time, guardian of one Virginia Whitaker, and died with a large amount of money belonging to his ward in his hands. The ward presented a claim against his estate, which was allowed and ordered paid as a claim of the sixth class. The appellant was surety on the guardian's bond executed by Weer, and when appellee obtained a judgment of the circuit court that her claim should be paid as a sixth class debt, he appeared, prayed for and obtained an appeal.

The first question presented by the record is, whether, under the statute, appellant had such an interest in the subject matter of the litigation as gave him the right of appeal. Sec. 123, chap. 3, R. S. 1874, page 126, provides, “Appeals shall be allowed from all judgments, orders or decrees of the county court, in all matters arising under this act, to the circuit court, in favor of any person who may consider himself aggrieved by any judgment, order or decree of such court, and from the circuit court to the Supreme Court, as in other cases, and bonds with security to be fixed by the county or circuit court, as the case may be.” This act expressly confers the right of appeal upon any person aggrieved. It does not seem to be essential that the person aggrieved should be a party of record to the litigation in which the judgment may be rendered. The only question, then, is, whether appellant was aggrieved by the judgment rendered in this case, and upon this point we entertain no doubt.

While appellee's claim remained in the seventh class, there were probably funds sufficient in the hands of the administrator to pay and discharge all claims allowed in the sixth class, which would release appellant from all liability on the guardian's bond; but when appellee's claim was transferred to the sixth class, it would of course share with the claim allowed in favor of Virginia Whitaker, and as the funds would not be sufficient to pay both in full, that would leave appellant liable on the guardian's bond. Appellant was, therefore, clearly aggrieved by the action of the court, and, under the statute, had the right to appeal.

The next question, and indeed the important one in the case, is, whether appellee's debt against the estate of Chas. W. Weer is of such a nature that it falls within the sixth clause of sec. 70, chap. 3, R. S. 1874, page 116, which provides, “Where the decedent has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for, as a sixth class claim.” Was the money held by the deceased received in trust for any purpose? The facts in regard to the transaction...