Thomson v. Barker

Mr. Justice Waterman delivered the opinion of the court. It is urged by appellant that the court improperly admitted in evidence the bond given by Dougald Muir; first, because, as the bond runs to the people of the State of Illinois, no action could be maintained thereon save in the name of the people. The claim in this case was filed in the Probate Court against the estate of Duncan M. Thomson, there in process of administration. The Probate Court has jurisdiction of all claims, both legal and equitable, against estates there administered upon; and this claim was properly allowed by this court in favor of the estate to which it belonged.. Moore v. Rogers, 19 Ill. 347; Dixon v. Bell, 21 Ill. 203; Hurd v. Slater, 43 Ill. 348; Brandon v. Brown, Ex’r, etc., 106 Ill. 519; McCall v. Lee, 120 Ill. 261-269; Clark v. Carr, 45 Ill. App. 469-478. The omission of the statement of the claim in the Probate Court of the name of Charles Pugh, one of the makers of the bond, is immaterial. The claim was presented against the estate of Duncan M. Thomson; no objection was made on account of variance, which should have been done if appellant expected to rely thereon. Stearns v. Reidy, 135 Ill. 119-122; Smith v. Prall, 133 Ill. 312; Start v. Moran, 27 Ill. App. 119. Written pleadings are unnecessary when a claim is presented for allowance in the Probate Court. Thorp v. Goewey, 85 Ill. 612. The Probate, and on appeal the Circuit Court, properly proceeded to consider this claim and to allow the same, notwithstanding it was a legal claim against a surety who could, be held only upon the letter of his bond. Eo defense thereto was shown. The judgment of the Circuit Court is affirmed.