Duffin v. Abbott

Mr. Chief Justice Bbeese delivered the opinion of the Court: Two questions are presented by this record: First, can the appointment of an administrator de bonis non be attacked collaterally ? and second, Is a former administrator, whose letters have been revoked, and his sureties, liable to account to the administrator de bonis non, in an action brought for such purpose? As to the first point, we deem that settled by the case of Wight v. Walbaum et al. 39 Ill. 563, where it was held that a person being appointed administrator by the proper court, is, at least, administrator defacto, and being such, the regularity of his appointment cannot be questioned in a collateral proceeding. Upon the second point, the statute is clear and unmistakable. By section 75 of the Statute of Wills, it is provided, “ in all cases where any executor or administrator shall have his letters 'revoked, he shall, nevertheless, be liable on his bond to such subsequent administrator or administrators for any mismanagement of the estate thus committed to his care as aforesaid, and such subsequent administrator or administrators may have and maintain actions of trover, debt, detinue, account, and on the case, against such former executor or administrator for all such goods, chattels, debts and credits, which shall have come to the possession of him or her, and which shall he withheld, or may have been wasted, embezzled or misapplied, and no satisfaction made for the same.” Scatcs’ Comp. 1196. A reference is made hy appellants’ counsel, to the case of Stose v. The People, 25 Ill. 600, in Avhich it was decided, on the authority of the case of Rowan v. Kirkpatrick et al., 14 ib.8, from which a full citation was made, that an administrator de bonis non could not call the prior administrator to account. In that case it Avas distinctly held, that “ an administrator de bonis non has no authority to call upon the first administrator for an account of assets already administered upon.” No reference was made in Stose’s case to the case of Marsh et al. v. The People, 15 ib. 286, where the distinction is observed between an administrator de bonis^non appointed on the death of an administrator, and one appointed on the revocation of the letters. In the former case, the representatives of the deceased administi’ator cannot be called to account by the subsequent administrator, but only by the heirs and distributees. In the latter case, the section of the statute Ave have cited, expressly authorizes proceedings by the subsequent administrator against the prior administrator. The case of Stose v. The People was decided Avithout reference to this distinction, and improperly decided. The language of the statute is too plain to be misunderstood. There being no error in the record, the decree must be affirmed. Decree affirmed.