Jessup v. Jessup

Mr. Justice Mulkey delivered the opinion of the Court: The propriety of this decree is questioned chiefly on the ground that appellant’s right to share in the proceeds of sale in excess of the present value of the lot, exclusive of improvements, is made to depend upon the relative amount contributed by her to the improvement of the lot. She earnestly insists, by her counsel, that inasmuch as John Jessup, her guardian, formally presented in the probate court, for allowance, an itemized account against her, as his ward, for one-half of the cost of the improvements for which he now seeks to recover out of the proceeds of the sale of the property, which account, after a formal hearing and due consideration, was disallowed and rejected by the court, it is a complete bar to the claim in the present proceeding. It is clear that all questions relating to this claim within the jurisdiction of the court, and necessarily involved in the inquiry then before it, must be regarded as finally and conclusively settled by the adjudication in that proceeding; yet, on the other hand, it is well settled that judgments or orders of this character are not to be extended, by mere intendment, to matters not necessarily involved in the determination. The presentation of this claim in the probate court by the guardian did not raise the question involved in the present case. The inquiry here is, assuming appellee and Edward Jessup made these improvements mainly out of their own private funds, ought they, in a division of the proceeds of the sale of the lot with the improvements on it, be compensated out of the proceeds, in so far as its value has been enhanced by their private funds ? No question of this kind was involved in the proceeding in the county court. The question there presented was, whether a guardian, who, is tenant in common with his ward, of a lot of ground, may, without any authority from the county court or other tribunal, go on and expend large sums of money, out of his own private funds, in improving the same, wholly disproportionate to his ward’s means, and then come into court and have one-half of these expenditures allowed against his ward. The county court properly held that this could not be done, and from a careful consideration of the record we are satisfied that this is all that was determined by the refusal of the county court to allow the claim. Such being the ease, the order of the county court in disallowing the claim as a charge against the ward in her guardian’s account, can not properly be regarded as a bar to the claim as now presented. It may be supposed that, inasmuch as a considerable portion of the improvements made on this lot was under contract before the original partnership was dissolved by the death of Cornelius Jessup, appellee, as his administrator, was bound to go on and perform the contract, and that the estate would therefore be bound by his action. With some modification this position may be conceded to be substantially correct. It is true that an administrator is liable on all the contracts of his intestate, including executory as well as executed contracts, which are not of a personal character. Yet in the ease of executory contracts the legislature has expressly provided, that “all contracts made by the decedent may be performed by the executor or administrator, when so directed by the county court; ” and if the administrator undertakes to perform such a contract, as was done in this case, without the direction of the county court, he does so at his peril, if loss should occur. If the performance of a contract will, in the case of an insolvent estate, result in giving the party with whom such contract was made, an undue advantage over-other creditors of the estate, it should not be performed, and if the administrator does so without the sanction of the county court, he will be liable to other creditors who may be injured thereby. In this ease the administrator proceeded without authority from the county court to make large expenditures on account of such a contract, and without the necessary funds in his hands, belonging to the estate, to meet them, and if he has sustained a loss in consequence of it, it is attributable to his own folly in disregarding a plain provision of the statute. Smith, Admx. v. Wilmington Coal Mining and Manf. Co. 83 Ill. 498. The only remaining objection to the decree which we deem important to notice, is that which questions the method adopted by the court in determining the several interests of the parties in the proceeds of the sale. It is claimed by appellant, that under the decree as rendered she is required to make compensation for the improvements at their original cost, whereas she should only be required to pay' for them according to their present value. While we concede appellant should only be required to make compensation for her proportionate share of the improvements according to their present cash value, and not according to their original cost, yet we do not consider the decree susceptible of the construction given to it by appellant, to the extent claimed. If this objection to the decree had any foundation in fact, the error would certainly be fatal, for it must be conceded it would be highly inequitable to require appellant to make compensation for the improvements on the basis of their original cost. But as we understand the decree nothing of the kind is required. As we construe it, the decree first ascertains the present value of the lots without the improvements, and the respective amounts contributed by the parties to the making of the improvements, and then orders the lots with the improvements to be sold together, and the proceeds to be divided according to the respective 'interests of the parties thus ascertained. From this we understand, appellant, on the one hand, and the complainant and the heirs of Edward Jessup, on the other, are to be first respectively paid one-half the full value of the lot as thus ascertained, and the residue of the proceeds, which must necessarily represent the present value of the improvements, is to be divided between the parties in proportion to the amounts contributed by them, respectively, to the making of the improvements. We see nothing improper in this. Indeed, we are aware of no other equitable basis upon which the present value of the improvements could be otherwise properly divided. Whether some other, more appropriate, method of ascertaining their respective interests in the property should or might have been adopted, it is unnecessary to inquire, as none has been suggested. Perceiving no material error in the proceedings, the decree of the circuit court will be affirmed. Decree affirmed.