Frank v. People ex rel. Hoecker

Mr. Justice Shops delivered the opinion of the Court: The questions presented and relied upon in this court for ■reversal arise solely under the plea of the Statute of Limitations, and the question is, as stated by counsel for appellants, when did the cause of action upon the administrator’s bond accrue to the distributees. It is insisted by appellants that it accrued on the 19th of February, 1879, when the administrator presented to the probate court of Madison county what purported to be his final report as such administrator. This •report seems to have been marked "approved” by the county judge, but no order of approval was entered of record. The reason for this is apparent. No notice of final settlement had been given, and the court could not approve the report and order distribution, under the statute, without notice to the heirs of the decedent. Section 112, chapter 3, of the Revised Statutes then in force'provides: “All executors and administrators shall exhibit accounts of their administration for settlement to the county court from which the letters tea-», tamentary or of administration were obtained, at the first term thereof after the expiration of one year after the date of their letters, and in like manner every twelve months thereafter, or sooner, if required, until the duties of their administration are fully completed: Provided, that no final settlement shall be made and approved by the court unless the heirs of the decedent have been notified thereof, in such manner as the court may direct.” It is clear the heirs were not notified, and the court was without authority to enter an order approving the final settlement of the estate, and of distribution to the heirs. No further action was taken in the matter of the estate until June, 1890, when a citation was issued to require the administrator to account. He appeared and answered to the citation, that on the 19th of February, 1879, he had made final settlement and reported the same, and moved for an order of approval nunc pro tunc. Exceptions were filed to the report, which were sustained by the court, and the administrator charged with additional sums of money, and the motion for an order of approval nunc pro tunc denied. From this order the administrator appealed to the circuit court, where his motion was again denied, and the sum of $2765.92 found in his hands as administrator, and distribution thereof ordered. Undoubtedly, if the administrator had completed the settlement of the estate, and the judge of the county court had, in fact, approved his report, and the order of court approving it had been omitted by inadvertence or mistake, the court would have had power to order the entry of approval nunc pro tunc. (Frame v. Frame, 16 Ill. 155.) The approval of the report of an executor or administrator is a judicial act, to be done- by the court, and when made and entered is conclusive upon all the parties before the court. (Dickson v. Hitt, 98 Ill. 300.) The court never having, in fact, approved of the final settlement reported, the administration remained open for such further order and proceeding as should be necessary to finally settle and distribute the estate, and upon the citation it might refuse to approve the report filed, and charge the administrator with such sum of money as should be found in his hands. This was done by the final order of the circuit court of Madison county, and its judgment, finding there was in the hands of the administrator $2765.92 subject to distribution to the heirs of his intestate, unreversed and remaining in full force, is conclusive, not only of the amount in his hands, but that the same was at that time liable to distribution. Upon the failure of the administrator to pay over the same to the persons entitled thereto, within thirty days after demand made, a right of action accrued upon his bond against him and his sureties, by force of thé statute. Section 115, chapter 3, of the Revised Statutes, provides: “If any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the county court lawfully made, within thirty days after demand made,” etc., the court, upon application, may attach and imprison him, to compel compliance with the order; “and, moreover, such failure or refusal on the part of such executor or administrator shall be deemed and taken, in law, to amount to a devastavit, and an action upon such executor’s or administrator’s bond, against his sureties, may be forthwith instituted and maintained, and a failure aforesaid to pay puch moneys or dividend shall be a sufficient breach to authorize a recovery thereon.” In Ralston et al. v. Wood, 15 Ill. 159, in commenting upon this section of the statute, it then being section 126 of the Statute of Wills, (Rev. Stat. 1845,) it was said: “If we are to give any force to language, this statute certainly makes that order as conclusive against the security as against the administrator himself. That judgment or order is made evidence of a devastavit, if not complied with, and entitles the person in whose favor it is made, to recover upon the bond against both principal and security. The suit upon the bond is a collateral action, founded as well upon that judgment as upon the bond itself, and when the judgment is offered in evidence, like any other judgment of a court of competent jurisdiction, it can not be inquired into by those affected by it, except for fraud.” And after noticing the argument based upon the supposed hardship of holding the security bound when he was not directly a party to the proceeding in which the judgment was obtained, and showing that there was no hardship or inconsistency in so holding, for the reason that the law gave that •effect to his bond when he entered into it, and he had voluntarily consented to be bound by the order and judgment of the •court, and the further reason that while he was bound by the judgment against his principal, he was given, by the 138th section of the same statute, (Rev. Stat. 1845, p. 564,) which is section 124, chapter 3, now in force, a right of appeal from that judgment, the court held that the security was concluded by the judgment, and that if the order against the administrator was not warranted by law, the remedy of the security was by appeal, and that they could not question it collaterally when sued upon the bond. This case was followed and approved in Housh v. The People, 66 Ill. 178. The county court, in the settlement of estates, is a court of general jurisdiction, and the circuit court, upon appeal, exercises a like jurisdiction, and the intendments indulged in respect of the judgments of courts of such jurisdiction must here obtain. Propst v. Meadows, 13 Ill. 157; Housh v. The People, supra. The foundation of plaintiff’s right of recovery in this case was the liability of the principal and sureties, under their bond, to pay the judgment of the circuit court against the principal, and the right of action upon the bond accrued, under the statute, upon failure of the administrator to pay the money to the distributees in accordance with the order and judgment of that court. And it follows, that the first breach assigned in the declaration, which is the failure of the administrator to pay over the money found by the circuit court to be in his hands distributable to appellees, in accordance with the judgment and order of said court, after demand duly made, etc., was a good and sufficient breach of the condition of the bond, and that the production in evidence of said judgment rendered May 16, 1891, was a complete answer to the plea of the Statute of Limitations. We are of opinion that the right of action accrued in this case when the administrator failed to make payment of the money in his hands as found by that judgment, after the demand, etc., prescribed by the statute. In view of this determination a discussion of the question of whether the statute would run against a recovery on the administrator’s bond, pending administration, will be unnecessary. The judgment of the Appellate Court will be affirmed. Judgment affirmed. Mr. Justice Phillips, having heard the cause in the Appellate Court, took no part in the consideration of the case in this court.