Bache v. Ward

Mr. Justice Hand delivered the opinion of the court: A motion has been made in this court to dismiss this appeal for want of jurisdiction in this court to hear and determine the same, on the ground that the amount involved is less than $1000 and no certificate of importance was granted by the Appellate Court. There is a class of cases which hold that where the judgment or decree appealed from disposes of more than $1000 an appeal will lie from the judgment of the Appellate Court to this court although the interest in the judgment or decree appealed from represented by the appellant,—that is, the appellant’s claim;—does not amount to $1000. (Longwith v. Riggs, 123 Ill. 258; MacVeagh & Co. v. Roysten & Co. 172 id. 515; Towne v. Towne, 191 id. 478.) In that class of cases the amount disposed of by the judgment or decree is held to be the amount involved, on the ground that the claim of the appellant is not severable from the other interests which are covered by the judgment or decree, so that he can prosecute an appeal and have it determined without affecting other interests involved in the judgment or decree. There is another class of cases which hold that where the claim of the appellant is separate and distinct from and in no way connected with the claims of other claimants or suitors whose claims are involved in a judgment or decree, the appellant’s claim must exceed in amount $1000 to authorize him to prosecute an appeal from the judgment of the Appellate Court to the Supreme Court without ,a certificate of importance, although there ig involved in the judgment or decree more than $1000 when it is considered as an entirety. (Farwell v. Becker, 129 Ill. 261; Stettauer v. Boldenweck, 183 id. 187; Davis v. Upham & Stone, 191 id. 372; Pugh Co. v. Wallace, 198 id. 422; Merritt v. Crane Co. ante, p. 181.) In the first class of cases the several claims or interests are not separate and distinct and severable from each other, while in the latter class of cases they are separate and distinct and severable from the other interests involved in the judgment and decree. In the case at bar the only question involved in the appeal from the order of the county court to the circuit court was whether the fees claimed by the executor were excessive, and whether the share which would have belonged to John Bache, deceased, had he been living at the time of Joseph Ward’s death, should be held to be and treated as intestate property and distributed as such ariiong the heirs of Joseph Ward, deceased, or as testate property and paid to William and Joseph Bache under the terms of the will of Joseph Ward, deceased. After the case was tried in the circuit court the question of the reasonableness of the fees of the executor, which was covered by objection No. 14, was eliminated from the case, and the sole question remaining undisposed of when the appeal was prosecuted to the Appellate Court was that raised by objection No. 17, which related solely to the proper disposition of the portion of the estate devised to John Bache, which bequest amounted to only $789.93. It has been repeatedly held by this court that the several items covered by an administrator’s or executor’s account are so far severable that an appeal may be taken from any one of the items thereof, and that such appeal does not bring before the circuit court, or, in case of further appeal, the Appellate or Supreme Court, for review the whole account. (Curts v. Brooks, 71 Ill. 125; Morgan v. Morgan, 83 id. 196; Millard v. Harris, 119 id. 185; Kingsbury v. Powers, 131 id. 182; Marshall v. Coleman, 187 id. 556.) The appeal in this case from the county court to the circuit court was expressly limited to two items of the account,—that is, to the executor’s fees and the bequest to John Bache; and upon the appeal from the circuit court to the Appellate Court it was limited to one item of the account, viz., the John Bache bequest, which bequest was for a sum less than $1000, which was covered by the seventeenth objection to the account and which in no why was connected with the other items of the account. In the Curts case it was held that where an appeal is prosecuted from an item of an administrator’s account, such appeal does not affect the balance of the account or prevent a distribution as to the remainder of the estate in the hands of the administrator, and that such administrator may be required to distribute the portion of the estate not covered by the item involved in the appeal. Such, evidently, was the case here. The fact that the amount bequeathed to John Bache, which was less than $1000, was tied up by the appeal, furnished no reason for the executor holding the large sum in his hands shown to be subject to distribution by his account, as the disposition of the item in the account covered 'by objection 17 in no way affected the distribution of the remainder of the estate. And in the Morgan case it was held that an appeal from a single item in an administrator’s account does not bring up for review the whole account, but the trial, which is de novo, should be confined to the item from which the appeal was prosecuted. And in the Marshall case, on page 585, it was said: “It has been held that each item in an administrator’s account is a separate claim, depending alone upon its own merits, having no connection with the other items, and that an appeal by the administrator from an order or judgment rejecting one of his claims against the estate only brings up for review the propriety of the ruling in respect to such rejected claim.” The converse of this proposition is true, and an appeal by an heir or devisee has the same effect upon items of the account not appealed from. The only effect of the appeal in this case was to prevent the distribution of $789.93 of the estate until it should be determined whether such portion of the estate was testate or intestate property. The amount involved in this appeal being less than $1000, and no certificate of importance having been granted, the motion to dismiss the appeal is allowed. Appeal dismissed.