Ford v. First National Bank of Stuart

Mr. Justice Ricks delivered the opinion of the court: Appellants insist that the circuit court erred in entertaining jurisdiction of the appeal from the county court, because the transcript from the county court does not show that appellee ever had a claim allowed against the estate of Bates or that it was in any manner interested in the settlement of said estate, and because Cairo A. Trimble, executor of the will of Bates, was not made a party to the appeal, and that it was beyond the power of the county court to set aside the former order and re-classify appellants’ claims after the term at which the claims of appellants were allowed and classified. It appears, however, from the petition filed by appellee, which petition was sworn to by the attorney for appellee, that the claim of appellee, amounting to $5117.11, was allowed by the probate court under date of February 20,1899, and classified as of the seventh class. It was stipulated by the partie's that this might be considered in evidence in this case. We think the record', therefore, fairly discloses that appellee was a creditor of the estate. The contention that the court did not have jurisdiction of the case and that the executor was not a party to the bill is insisted upon. This contention is bg,sed on the fact that when the bond was filed in the county court to take the case to the circuit court, Trimble, executor, was not mentioned as an obligee in the bond, and it is insisted, therefore, that he was not a party to the appeal. The record discloses that Trimble was notified of the petition and when the same would be heard by the county court. It also appears from the order of the court refusing re-classification of the claim, that Trimble, as such executor, was present in the county court. Section 68 of chapter 3 of the Revised Statutes provides that either party may take an appeal in the allowance or rejection of claims by the county court, in the same time and manner as appeals are now taken from justices of the peace to the circuit court, and we have held in Hayward v. Ramsey, 74 Ill. 372, that parties are bound to follow their case to the circuit court, where an appeal is perfected before the justice, without any further notice. The record showing that Trimble, executor, was a party to the proceedings in the county court, he was bound to take notice of the appeal to the circuit court, and if he had done so and followed the case and timely made his motion to have the appeal dismissed for want of a sufficient bond, it would have been the duty of the court to have dismissed the bill, unless appellee, who was appellant there, had by leave of court filed a proper bond. There was a bond given in proper form and in the amount required by the court, and the omission of the name of the executor, Trimble, as one of the obligees, was but an imperfection or defect that could have, and doubtless would have, been cured had the proper steps been taken. After the case had been decided in the circuit court and taken to the Appellate Court by appeal it was too late to urge this point. Although the name of the executor, Trimble, was not mentioned in the bond, he was nevertheless a party to the appeal, and could have appeared in person or by attorne;r and made such defense as he had. The bond was only to cover costs, and if he sought to protect himself in that respect he could and should have done so promptly. In this case, the bond having been filed in the county court, no summons or service or notice of the appeal upon the executor, Trimble, was necessary. Appellants’ second objection to the jurisdiction of the court is therefore not well taken. It appears from the record that no objection was filed to the allowance of appellants’ claims, and the classification of them as of the sixth class, until about a year after they were so classified and fifty per cent of the amount had been paid thereon by the administrator. The creditors having presented and proved their claims and the court having jurisdiction to hear and determine the same, and the creditors and administrator being regularly before the court for the purpose of investigating and. determining the claims, the adjudication of the county court thereon is final and conclusive upon them. (Mitchell v. Mayo, 16 Ill. 83; Noe v. Moutray, 170 id. 169.) The allowanee of a claim against an estate is conclusive against the personal estate, because the representative of the estate,—that is, the executor,—is before the court and a party to it. (Ward v. Durham, 134 Ill. 195.) It is the duty of the executor or administrator to represent and guard the interests of the creditors of the estate, and when a claim is presented for allowance the law will hold each and every creditor of the estate, by reason of privity of relation, to be represented by the executor. 15 Ency. of Pl. & Pr. 641; Dandridge v. Washington’s Exrs. 2 Pet. 370; Stone v. Wood, 16 Ill. 177; Ward v. Durham, supra. It would be an intolerable burden on those who have claims against an estate in the hands of an executor to require the claimant to make each of the creditors a party. An allowance of a claim against an estate is a judgment conclusive upon the creditors and all other parties, so far as the personal property of the estate is concerned. It is not the purpose of the law that a claimant shall litigate his claim first with the executor and then with each and every other claimant of the estate. Upon the allowance of a claim against an estate, each creditor, if he deems himself aggrieved, has a right to an appeal or to a writ of error, and failing to exercise this right the judgment is conclusive as to him, and in the absence of fraud, accident or mistake the judgment of the county court cannot be vacated at a subsequent term by the court. Section 73 of the Administration of Estates act provides that the county court shall classify the claims as provided in section 70, and the classification is as much a part of the judgment as that of allowing the claim. It is contended by the appellee that the probate court is clothed with a broad jurisdiction over all probate matters, and may look into and correct the allowance of claims after the term at which they are allowed. This is true as between the creditors and the heirs-at-law upon a petition filed for the sale of real estate to pay debts, but a distinction is to be made of the effect of the allowanee of a claim as to an heir and as to a creditor or legatee. (Ward v. Durham, supra.) So far as real estate is concerned, the allowance of a claim against an estate is merely prima facie evidence of the debt due by the estate. (Noe v. Moutray, supra.) But as against the personal estate an allowance of a claim is conclusive until reversed by a superior tribunal, unless impeached for fraud, accident or mistake. Cook v. Wood, 24 Ill. 295; Stone v. Wood, supra; Gould v. Bailey, 44 Ill. 491; Wheeler v. Dawson, 63 id. 54; Ward v. Durham, supra; Schlink v. Maxton, 153 Ill. 447; Sherman v. Whiteside, 190 id. 576. In Sherman v. Whiteside, supra, it is said (p. 578): “The county court has such equitable jurisdiction in the administration of estates that it may, in a proper case, on motion, at a subsequent term, set aside an order allowing a claim where fraud or mistake has intervened. * * * The facts alleged and proved, to enable the court to set aside the claim, must be such as would move a court of equity to entertain jurisdiction and set aside the judgment. •* * * In the absence of fraud the judgment of the county court allowing the claim is conclusive against both the executors and legatees in respect to the personal estate. If an executor has been delinquent in his duty, the persons interested in the estate have their remedy on his bond; but a claimant cannot be forced to litigate his claim first with the executor and afterwards with the legatees or with heirs, where there is no attempt to subject real estate which has descended to the heirs, to the payment of the claim.” In Mitchell v. Mayo, supra, in speaking of the allowance of claims against an estate, so far as the personal estate is concerned, we said: “Here, then, the court had jurisdiction of the persons and of the subject matter. It heard and determined the facts and pronounced the conclusion of the law upon the facts thus found, and such determination was final and conclusive upon the parties thus before the court. It was a judgment of a court of competent jurisdiction in a judicial proceeding properly instituted and regularly pending before it. * * * It is true that no execution could be issued upon the judgment, but in this respect it is like a judgment of the circuit court against an administrator. Upon such a judgment, as upon this, no execution is awarded, but the judgment is ordered to be paid in the due course of administration. The effect of the order, adjudication or judgment is precisely the same in the one case as in the other.” In Cook v. Wood, supra, we said (p. 298): “After1 the term has expired it would seem that the day of discretion had passed, and for any relief against the judgment, as obtained by fraud or otherwise, involving no laches. on the part of the defendant, application should be made to a court of equity, or if error has intervened, to this court by writ of error. * * * For relief for errors in law there can be no other appropriate proceedings than by new trial, bill in chancery, writ of error or appeal, -as either may be foundymost appropriate and allowable by law. Judgments entered up by fraud might, perhaps, on due notice, by scire facias or otherwise, be vacated at a subsequent term by the same court. Untainted with fraud, they must stand until set aside by this court.” It is not contended by appellee that the judgment of the county court allowing the claim and classifying it as of the sixth class was entered by fraud, accident or mistake, and appellants having litigated their claims with the legal representatives of the estate, should not be compelled to again litigate them with the creditors of the decedent, who were all represented in court by the legal representative of said estate. For the reasons stated the judgments of the Appellate and circuit courts will be reversed and the judgment of the county court of Bureau county affirmed. Judgment reversed. Cartwright and Hand, JJ., dissenting.