Wilson v. Turner

• Decision Date: 10 November 1896
• Citation: 164 Ill. 398,45 N.E. 820
• Parties: WILSON v. TURNER et al.
• Court: Illinois Supreme Court

164 Ill. 398

45 N.E. 820

WILSON

v.TURNER et al.¹

Supreme Court of Illinois.

Nov. 10, 1896.

Appeal from appellate court, Third district.

Assumpsit by George H. Wilson, administrator of Nancy C. Kent, deceased, against John T. Turner and another, executors of Henry Kent, deceased. A judgment for plaintiff was reversed by the appellate court (see 55 Ill. App. 543), and plaintiff appeals. Reversed.

Govert & Pape and Patton, Hamilton & Patton, for appellant.

J. F. Carrott, for appellees.

CRAIG, J.

Henry Kent died, testate, in Adams county, on the 13th day of August, 1879. The provisions of his will material to be considered in the disposition of this case are as follows: ‘Fourth. After the payment of my said debt and funeral expenses, I give, devise, and bequeath unto my wife, Nancy C. Kent, one-half of all the personal property, money, and effects, not hereinbefore otherwise disposed of, which I may own or have a right to at the time of my death. And I also give, devise, and bequeath to my said wife the farm upon which we-my wife and myself-now reside, for and during the term of her natural life, she to have all the rents, issues, and profits growing out of or arising from the same from the time of my death, for and during her natural life, whether such rents, issues, and profits arise from a lease now made or which may hereafter be made by me of said farm. Fifth. It is my will that the remainder of the personal property, rights, and effects of which I may die possessed, not hereinbefore disposed of, be sold by my executors, as soon as the same can conveniently be done after my death, in the manner and upon the terms hereinafter specified; and I hereby give, devise, and bequeath the proceeds of such sale, after the proper expenses thereof are paid, to my nephews and nieces. Sixth. It is my will that all the real estate of which I may die seised, as soon as can conveniently be done after the death of my said wife, be sold by my executors, as hereinafter they are directed; and I hereby authorize and empower my said wife, after the expenses necessarily incurred in said sale are paid, to dispose of one-half of the proceeds of said sale, by will, as to her may seem best. The remaining half of said proceeds of said sale I give, devise, and bequeath to my said nephews and nieces. Seventh. In case my said wife shall not make disposition of half of said proceeds of said sale of said real estate, as it is hereinabove provided that she may do, then it is my will that said proceeds of said sale, so left undisposed of, together with all the personal property hereby given my said wife absolutely, which at her death shall remain undisposed of, and also all the rents, issues, and profits of the property hereby bequeathed to her, undisposed of at the time of her death, to pass to and be divided between the nephews and nieces of my said wife, namely: * * * And I hereby constitute John T. Turner and Parden B. Grover, both of said county, executors of this, my last will and testament, hereby revoking and annulling all former wills by me made, and ratifying, publishing, and confirming this, and none others, to be my last will and testament. And I hereby authorize, empower, and direct my said executors, as soon as may conveniently be done after my death, to sell all the personal property owned by me at the time of my death, not hereinbefore specially bequeathed to my said wife and the said Edward K. Bodurtha and Henry Bodurtha, such sale to be made in the manner and after such advertisement as may seem to my said executors proper and advantageous, for the interests of my said estate, and to make distribution of the proceeds of such sale as hereinbefore provided. And I further authorize and direct my said executors, upon the death of my wife, in case she shall survive me, or as soon thereafter as practicable, to sell the real estate of which I may die seised, at public auction, upon the homestead where I now reside, first giving such notice of such sale, by advertisement, in such manner and for such time, as my said executors, in the exercise of their best judgment, shall deem best calculated to secure the most advantageous sale of my said real estate; said real estate to be offered in such parcels as shall to my said executors seem best for the interests of all concerned, the payment or payments for said real estate so sold to be made as follows, to wit: One-fourth of the purchase money to be paid cash in hand, and the remaining three-fourths to be paid in three equal installments, in one, two, and three years, respectively, from the day of such sale. Such deferred payments to be secured upon the real estate so sold, and, when the sale is made, to first pay out of the proceeds thereof all the proper and necessary expenses of said sale, and then to distribute one-half of the remainder of said proceeds to my said nephews and nieces, as hereinbefore provided; and in case my said wife shall not have disposed of the remainder of said proceeds, together with the personal property, rights, and effects of which she shall become possessed hereby, and the increase,rents, issues, and profits of property hereby bequeathed to her by will, then it is my will that the same be divided and distributed between the nephews and nieces of my said wife hereinbefore named, as indicated by the provisions of this will, by my said executors. In witness whereof, I, the said Henry Kent, have hereunto set my hand and seal, this, the thirteenth, day of January, A. D. 1876. H. Kent. [Seal.]’

Turner and Grover duly qualified as executors of the will. They also, from the time of Mr. Kent's death, which occurred August 13, 1878, acted as the agents of his widow, Nancy C. Kent. They ceased to be such agents some time in the year 1891, when Frederick J. White became their successor in such agency. In settling the estate, they turned over all moneys coming to Mrs. Kent under the will to themselves, as her agents. On September 2, 1879, they turned over to themselves, as such agents, $153.40, being a part of her widow's award. They also, with Mrs. Kent's consent, sold the whole of the personal property, and turned over to themselves, as her agents, one-half of the proceeds of said sale, as follows: First the sum of $120, and then the sum of $1,277.27 1/2, making in all the sum of $1,550.67 1/2. During their agency, they also rented for Mrs. Kent the farm in which she had a life estate, for $1,000 a year. Mrs. Kent did not use the whole of the proceeds of this rent, and whatever sum was not expended by her they retained, as her agents. In 1891, Frederick J. White succeeded them as agent of Mrs. Kent. At that time, Turner and Grover had in their possession moneys belonging to Mrs. Kent amounting to $4,208.38, which they paid to White. White acted as her agent until the time of her death, renting the farm for the same rent, of $1,000 a year. At the time of her death, which occurred May 6, 1893, he had in his hands, as her agent, the sum of $3,573.12. This sum he paid to Grover after Mrs. Kent's death, the latter receiving it in his capacity as executor of Henry Kent, deceased. George H. Wilson was appointed administrator of the estate of Mrs. Kent, and brought this, an action of assumpsit, against Turner and Grover, as executors of the estate of Henry Kent, to recover the moneys paid Grover by White. On a trial of the cause in the circuit court, a jury having been waived, the court rendered judgment in favor of George H. Wilson for $1,430.67 1/2. This judgment, on appeal to the appellate court, was reversed.

An action for money had and received will lie whenever one person has received money which, in justice, belongs to another, and which, in justice and right, should be returned. In Allen v. Stenger, 74 Ill. 119, in discussing this question, the court said: ‘Assumpsit always lies to recover money due on simple contracts. And this kind of equitable action to recover back money which ought not, in justice, to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund. Chit. Cont. 474. When, therefore, according to this rule, one person obtains the money of another, which it is inequitable or unjust for him to retain, the person entitled to it may maintain an action for money had and received for its recovery. And it is not necessary that there should be an express promise, as the law implies a promise. The scope of the action has been enlarged until it embraces a great variety of cases, the usual test being: Does the money, in justice, belong to the plaintiff, and has the defendant received the money, and should he, in justice and right, return it to the plaintiff? Under the rule announced, if the money paid over to Turner and Grover, as executors of the estate of Henry Kent, deceased, belonged to the estate of Nancy C. Kent, deceased, they had no right to hold the money, and no good reason is perceived why the equitable action for money had and received was not an appropriate remedy. Whether the money which White turned over to Turner and Grover belonged to the estate of Nancy C. Kent, or to the estate of Henry Kent, deceased, depends upon the construction to be placed upon the will of Henry Kent. It will be observed that the money in question, with the exception of $153.40, which was a part of Mrs. Kent's specific allowance, consisted of money received from a sale of one-half of the personal property of Henry Kent, deceased, and from the rent of the farm on which Mrs. Kent had an estate for life. As the rent and the personal property do not rest entirely upon the same principle, we will consider them separately. Section 4 of the will declared: ‘I give, devise, and bequeath unto my wife, Nancy C. Kent, one-half of all the personal property, money, and effects, not hereinbefore otherwise disposed of, which I may own or have a right to at the time of my death. And I also give,...