author: Mr. Justice Scholfield

text:
    Adaline Darling et al. v. Peter McDonald.

      Filed at Mt. Vernon January 18, 1882.

    • 1- 'Jurisdiction of circuit court—suit at law against executors. The circuit court has; under sec. 12, art. 6, of the constitution, jurisdiction of an • action of assumpsit brought against the executors of an estate upon a claim which had accrued against the testator, and this jurisdiction is unaffected by the statute conferring jurisdiction upon the county court in the same class of cases.
    , . . , 2. Administration op estates—two years limitation interposed—of t^e proper judgment. In a suit against the representatives of an estate of a deceased person, when the defence is successfully interposed that the suit ' was not commenced, or the claim was not exhibited, within two years after the grant of administration, the judgment must be special, and payable out of assets thereafter to be inventoried, corresponding to the common law judgment of quando acciderint.

    3. Such a judgment does not imply assets for the satisfaction of the debt. The presumption at the end of two years from the grant of administration is, that the personal, estate has been -fully inventoried, or accounted for, by the executor or administrator.

      i. Same—of a judgment payable “in due course of administration out of what assets to be satisfied. A judgment of the circuit court against executors, to be paid in the due course of administration, is not limited to subsequently discovered or inventoried assets for payment, but is to be paid out of assets administered in the manner and order that other debts of like dignity are to be paid. Such a judgment binds the assets in the hands of the administrator, and it is the duty of the executors to pay it without further notice or demand, the statute fixing its grade or class.
    5. Same—classification of claims by circuit court, after rendering judgment. The circuit court, after rendering judgment against executors, to be paid in the due course of administration, has full power, as an incident to its jurisdiction, to pronounce the judgment, afterwards to direct its classification, the same as the county court may do on the allowance of a claim, and order that the record be certified to the county court; and that court, having power to enforce the settlement of the estate, has the power, and it is its duty, to include in such settlement the payment of such judgment.
    6. Same—effect of judgment in the circuit court—and as to the presentation of claims to the county court. A judgment against executors in a suit brought in the circuit court, sustains the same relation to the assets of the estate as a judgment in the county court. Such a judgment is not subject to the revision of the county court, but it must enforce its payment the same as a claim allowed in that court.
    7. The claims required to be presented to the county court at the term fixed upon for the adjustment of claims against an estate, are those which have not been liquidated or established, and upon which it is necessary to hear evidence, and not those which have been reduced to judgment binding upon the executors or administrators.
    8. Section 61 of the act concerning the administration of estates, in regard to bringing suits against the executor or administrator of an estate in the county court, does not require suits to be brought on a judgment- of another court already binding the executor or administrator, but relates to claims not established as a legal charge against the estate, and upon which there is to be a regular trial as in any other causes at law.
    9. Same—%>roof in the comity court of the judgments of other courts— as to the mode. A judgment regularly obtained against the personal representatives of a deceased person is duly proven to the county court, under sec. 65 of chap. 3, Bev. Stat., by a copy thereof, duly certified. Such certified copy shows it to be a legal claim against the estate to the extent it purports. This section has nothing to do with taking judgments against estates, but is simply confined to declaring a rule of evidence in regard to judgments already obtained against estates.
    Appeal from the Appellate Court for the Fourth District;—heard in" that court on appeal from the Circuit Court of Richland county; the Hon. William C. Jones, Judge, presiding.
    Andrew Darling, in and by his last will and testament, appointed Adaline Darling, Robert Byers, and Samuel C. Clubh, to be executors of the same. After his death, and on the 28th day of April, A. D. 1874, letters testamentary, in due form of law, were thereupon granted to them by- the county court of Richland county, and they then duly qualified as such, and entered upon the administration of the estate. Shortly thereafter Peter McDonald commenced an action of assumpsit, in the Richland circuit court, against said executors, in their capacity as such, for services rendered their testator in nursing, in his last illness, etc. Having been properly summoned, they appeared and plead to the action, and the cause was tried at the November term, 1874, of that court, and resulted in a judgment in favor of McDonald, and against the executors, for $6420. The executors prosecuted an appeal from that judgment to this court, and the same was, by the judgment of this court, reversed, and the cause remanded. (See Darling et al. v. McDonald, 77 Ill. 520.) At the November term, 1875, of the Richland circuit court, the cause was again tried in that court, and this time resulted in a judgment in favor of McDonald and against the executors, for $7640, to be paid in due course of administration. An appeal was also prosecuted by the executors, from this judgment, to this court, but on hearing it was, in all things, affirmed by this court. Subsequently, on petition of the executors, a rehearing was ordered, and thereafter, at our June term, 1879, on full consideration of the cause, we adjudged again that the judgment of the Richland circuit court should, in all things, be affirmed.
    At the November term, 1878, of the Richland circuit court, which was after the affirmance of said last judgment, and before the granting of a rehearing in the cause, an order was entered directing the executors to pay the judgment as a 7th class claim, and ordering a copy of its record to be certified to the county court. In January, 1879, notice was served upon the executors that the clerk of the circuit court had filed in the county court copies of said judgment and orders, and that McDonald would ask the county court to enter the judg-. ment as duly proven, and' for other purposes. At the same term of the Richland county court, and after the service of this notice, McDonald presented his petition to that court, praying that court to enter of record said judgment as a claim against the estate of the testator, duly proven, and that the executors.pay it out of the general assets. The county court refused to grant the prayer of this petition, and to make such order, and from this refusal McDonald appealed to the circuit court of Richland county. On hearing this appeal the circuit court of Richland county, at its November term, 1879, granted the prayer of McDonald’s petition, and ordered that the judg-. ment be paid as a 7th class claim against the testator’s estate. At the December term, 1879, of the Richland county court, a transcript of the judgment and orders of the circuit court of that county in the case was presented, and that court was asked to register said judgment. This motion was resisted by the executors. The court took the matter under advisement until its January term, 1880, and then proceeded to render judgment on said transcript, classifying the same as a 7th class claim, and directing its payment in due course of administration.
    The executors prayed an appeal from this judgment and order to the circuit court, but did not perfect the same. Upon an amended report filed by the executors, the county court proceeded to ascertain the whole amount of moneys and assets belonging to the estate, which had come into the hands of the executors, and the whole amount of debts established against said estate, and thereupon made an order directing the executors to pay to appellee his judgment within thirty days. The executors appealed from this order to the circuit court of Richland county, which court, by its judgment rendered at its April term, 1881, affirmed the same. The5 executors then appealed from that judgment to the Appellate Court for the Fourth District, and that court having by its judgment affirmed the same, the present appeal is prosecuted.
    Messrs. Bell & Green, for the appellants.
    Messrs. Wilson & Hutchinson, and Mr. J'. P. Robinson, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The order from which this appeal is prosecuted directs the payment of a judgment rendered by the circuit court of Eichland county, in favor of McDonald and against Darling’s executors, in an action of assumpsit,-for the personal services of McDonald in nursing Darling during his last sickness. . Beyond all question this was a “cause in law,” and being such, the court had original jurisdiction in “the cause” under sec. 12, art. 6, of the constitution; and this jurisdiction is unaffected by the statute conferring jurisdiction upon the county court in the same class of “causes.” Myers v. The People, 67 Ill. 503; Mapes v. The People, 69 id. 525; Burns v. Henderson, 20 id. 264. All necessary parties were legally before the court, and the court having thus had jurisdiction of the persons and the subject matter, its judgment is now res judicata. Smith v. Brittenham, 94 Ill. 624; Chicago and Alton R. R. Co. v. The People ex rel. 72 id. 82; Rising et ux. v. Carr, 70 id. 596; Campbell v. Rankin, 99 U. S. (9 Otto,) 26.

The judgment is, that the amount recovered is “to be paid in due course of administration.” Where the defence is successfully interposed that suit was not commenced, or the claim was not exhibited, within two years after the grant of letters of administration, the judgment must be special, and payable out of assets to be thereafter inventoried, corresponding to the common law judgment of guando acciderint. Thorn v. Watson, 5 Gilm. 26; Judy v. Kelley, 11 Ill. 211; Peacock v. Haven, Admr. 22 id. 23; Russell v. Hubbard, 59 id. 335; Shepard, etc. v. National Bank, etc. 67 id. 292. “Such a judgment does not imply assets for'the satisfaction of the debt. The presumption at the end of two years from the grant of administration is, that the personal estate has been fully inventoried, or accounted for, by the executor or administrator.” Ryan v. Jones, 15 Ill. 6.

At common law, a judgment against an executor or administrator which was entitled to be satisfied out of the assets administered fde bonis testatorisj, was for the debt, or damages and costs, “to be levied of the goods of the testator or intestate in the hands of the executor or administrator to he administered.” 2 Tidd’s Practice (3d Am. ed.) 112, *113; 2 Williams on Executors, (3d Am. ed.) 1685, *1687; and 1691, *1692. • At an early day, however, this court held that it was error to award execution in such a, judgment. The reason controlling was, that all the creditors of the estate are. entitled to rely upon administration and distribution of the estate in the mode provided by the statute, for the payment of their debts. Greenwood v. Spiller, 2 Scam. 502, and Welch v. Wallace, 3 Gilm. 490. In the last named case this court corrected the form of the judgment, and made it conclude, “to be paid in due course of administration. ” See, also, Judy v. Kelley, supra.

In Greene, Admr. etc. v. Grimshaw, 11 Ill. 389, a judgment against an administrator, not awarding execution, but expressed “to be levied of the goods and chattels, etc., in the hands of the administrator to be administered, ” (as in the common law form of a judgment de bonis testatoris, supra,) was held to be sufficient as establishing a demand against the estate which the administrator was required to pay in due course of administration.

In Ryan v. Jones, supra, it was said: “Where the two years’ limitation is not successfully interposed by the administrator, the judgment against him is for the amount of the plaintiff’s debt, to be paid in the due course of administration. ”

In Wells v. Miller, 45 Ill. 33, the defence was, the general issue, and notice thereunder that the claim was not presented within two years after the grant of letters of administration. The judgment of the lower court was, that the plaintiff recover the amount of his claim, “to be satisfied out of such estate or assets of said J. C. Miller [the intestate] as may be or may have been discovered, after two years from the grant of letters of administration on said estate, not inventoried or accounted for. ” This court found, as a fact, that the claim had been properly exhibited within two years from the grant of letters of administration, and therefore reversed that judgment, and directed that judgment be entered, “to be paid in due course of administration. ”

And in People, use, etc. v. Gray, 72 Ill. 343, it Was held: “Where, a judgment rendered by a county court for the payment, in due course of administration, of a claim exhibited against an estate, does not provide for its payment from assets of the estate not then inventoried, the presumption "is the claim was exhibited within two years from the time of' granting letters of administration. ”

It is, therefore, clear, under the authority of these decisions, that this judgment is not limited to future discovered or inventoried assets for payment, but is entitled to be paid out of the assets administered. Indeed, the language of the judgment, apart from the decisions, would seem to clearly show this. It implies the administration is not completed, and that payment is to be made in the course or order of administration,—that is, in the manner and order that other debts of like dignity are to be paid. Nothing therefore remained for the executors to do but to obey the command of that judgment,—pay the amount in due course of administration.

But the objection is raised, that under the statute the executors were,authorized to pay no claim out of the assets administered, unless it had been presented to and allowed by ■ the county court at the term thereof fixed upon by the executors for the adjustment of claims against the estate, or the same had been filed with the clerk of the county court, and summons been thereupon issued within two years from the grant of letters testamentary, etc. It is a sufficient answer to this, that the circuit court of Richland county, a court of competent jurisdiction, has adjudged otherwise, and ordered the claim, as it is, to be paid in due course of administration, and this court has affirmed that judgment.' However erroneous it may have been, the cause of action thereafter ceased to be the subject of litigation, and it could no longer be questioned whether the court was authorized to render the judgment as it did. This judgment bound the assets in the hands of the executors. Gold, Admr. v. Bailey, 44 Ill. 491. But we have seen they could not be seized and sold on execution, nor under the judgment rendered could McDonald be postponed to future discovered and inventoried assets, and so all that remained was for the executors to pay, as was ordered, “in due course of administration.” The statute itself fixes the class to which the claim belongs, and hence, “due course of administration” means that it shall be paid as, and pro rata with, other claims of that class, out of the assets administered. The power of the county court to enforce settlement of the estate, and hence to make the order appealed from, is ample under the statute. Bev. Stat. 1874, chap. 3, secs. 111, 112, 113, 114. And since the executors were parties to the judgment, they needed no further notice of its existence. It was their duty to pay it without further notice or demand. But it is unnecessary to rest' the affirmance of the order of the county court exclusively upon this ground.

The circuit court having original jurisdiction, unaffected by the statute conferring jurisdiction upon the county court, in the “cause in law, ” it necessarily follows that it had power to render a judgment therein binding upon the parties, and power to enforce a judgment follows, also, as a necessary incident to the power to render the judgment; but power is expressly conferred upon circuit courts by sec. 26, chap. 37, Bev. Stat. 1874, to “make and award such judgments, decrees, orders and injunctions, and to issue all such writs and process as may be necessary or proper to carry into effect the powers granted to them. ”

Clearly, then, the circuit court had power, after having rendered judgment “to be paid in due course of administration, ” to direct its classification as a 7th class claim, in analogy to and in order to harmonize with the statute relating to the allowance of claims and rendering of judgments against estates in county courts, and that the record be certified to the county court; and the county clurt having power to enforce settlements of estates generally, necessarily had power, and it was its duty, (for otherwise the estate could not be settled), to include in such' settlement payment of this judgment.

It is quite true that the present statute, in providing for the classification of claims against estates, fixing the period of limitation for exhibiting or suing upon such claims, and the mode of obtaining judgment thereon, speaks only of the county courts; but the manifest purpose and design of the statute was to provide a complete system for the administration and settlement of estates, and this, obviously, can not be the effect of the statute if judgments in the circuit courts are to sustain a different relation with reference to the assets of the estate, from that sustained by judgments in the county courts, and be enforced without regard to that statute. Such a construction would necessarily defeat the chief beneficial results that would otherwise flow from the statute.

Since the circuit court is of general original jurisdiction, and an appeal is expressly allowed to it from all orders and judgments of the county court, it can not be presumed, its judgments were to be submitted to the revision of the county court.

The claims required to be presented by sec. 60, chap. 3, at the term of the county court fixed upon for the adjustment of claims against the estate, are those which have not been liquidated or established, and upon which it is necessary to hear evidence, and not those that have been reduced to judgment, binding upon the executors or administrators. This, the language of that section shows beyond all controversy, for it provides for the introduction of evidence, if the claim be not admitted, and trial by jury, and requires the claim, in any event, to be sustained by the sworn evidence of • the claimant that it is just and unpaid, and an order of the county court allowing it (in the nature of a judgment) must then be entered before it becomes a charge upon the estate; and the same may be said in regard to bringing suit against . the executor or administrator, under the next section,—the 61st. Such suits are not to be brought on a judgment already binding the executor or administrator, but on a claim not established as a legal charge against the estate, and upon which there is to be a regular trial, as in any other cause in law, and a judgment of the court rendered.

The statute, however, expressly recognizes the right of the circuit court to proceed to trial and render judgments against executors and administrators. Thus, in secs. 11, 12, 13 and 18, of chap. 1, title “Abatement, ” Bev. Stat. 1874, it is provided, where the defendant dies before trial, and while the suit is pending, the suit shall not abate, but the administrator or executor shall be made defendant, and judgment shall be rendered against him. This, of course, implies that the cause of action is one that does not die with the defendant and that constitutes a valid charge against his estate. By sec. 123, of chap. 3, it is provided, that “in addition to the actions which survive at common law, the following shall also survive: Actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance, or nonfeasance of. themselves or their deputies, and all actions for fraud or deceit. ” So in regard to garnishment, it is provided by sec. 18, chap. 62, Bev. Stat. 1874: “In case of the death of a person served as garnishee, his executors or administrators may be made a party, and notified, unless his appearance is entered, as in case of the death of a defendant, and the cause may proceed against him as personal representative of the deceased.” So, also, in case of attachments in circuit courts, sec. 3, of chap. 11, Eev. Stat. 1874, provides: “Heirs, executors and administrators of deceased defendants shall be subject to the provisions of this act, in all cases in which it may be applicable to them. ”

Now, in all these cases, and perhaps in others, it is,clearly-contemplated judgment shall be rendered against executors' and administrators, to be paid out of the assets administered, in due course of administration,—and in such of them as are for the recovery of punitive or exemplary damages, it would be impossible, in advance of judgment, to file a definite statement of the amount, in the county court; yet there is no more mention made or notice taken of such judgments-in secs. 60 and 61, supra, than there is of judgments rendered by the circuit court in cases originally commenced against executors or administrators in that court. In such cases it is'plain to every mind the claims are not unadjusted, as .are the claims contemplated by those sections, but they are adjusted,—their validity is established beyond controversy, and they are made fixed charges against the assets administered; and it is simply nonsensical to say that their validity remains to be fixed by any judgment to be passed upon them by the county court.

It is provided by sec. 65 of chap. 3, supra, that “a judgment regularly obtained, or a copy thereof duly certified and filed with the court, shall be taken as duly proven. ” This is not free from obscurity, but still, we think its meaning is apparent. Of course, it has no reference to judgments to be obtained in the county court, for section 61 governs them, and they can need no production or proof; but in discharging the duty of causing settlement to be made of the estate, it is necessary that the county court should be advised of the existence, and in some way have before it evidence of the nature and amount, of all the judgments against the executor or administrator which hind the estate, otherwise it could never lmow whether the estate was settled or not, and could not intelligently pass upon the accounts of the executor or administrator. Hence the judgment itself, or a copy thereof, is made evidence that “it is duly proven, ” and so is a legal claim, to the extent it purports, against the estate. It will be observed, this section has nothing to do with allowing claims or takipg judgments against estates, but is simply confined to declaring a rule of evidence in regard to judgments already obtained against estates.

The county court being thus required to recognize the present judgment as duly proven, had, in our opinion, no power to deny the force and effect it had as a judgment of the circuit court. Other claims of like character, though allowed by the county court, could therefore have no priority over it,—it could not be postponed; and so it follows that all that was possible was either to pay it prior and in preference to other claims, or pro rata with them, and in either view the order of payment is right; but although it is not within the letter of the statute to classify it with claims allowed by the county court, it is within the clear and manifest spirit and purpose of the statute to do so. Beyond all question, as a judgment of the circuit court it is entitled to payment in the “due course of administration, ”—it is the duty of the county court, in causing settlement of the estate, to enforce its payment,—and that court has no authority, in doing so, to impair the force and effect of the judgment as a judgment of the circuit court. It should be treated, as it was by the county court, just like a judgment of that court in a suit commenced under the provisions of section 61, by summons, and classified and paid, in the settlement of the estate, as such a judgment would be "entitled to be classified and paid.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Mose Williams et al. v. The People of the State of Illinois.

      Filed, at Mt. Vernon January 18, 1882.

    1. Criminal law—of the indictment—for receiving stolen goods. An indictment for receiving stolen goods for gain, etc., should describe the goods with accuracy, and a variance in this particular will be fatal.
    2. Same—proof must sustain every material allegation. It is an elementary principle that every material fact essential to the commission of a crime must be distinctly alleged and clearly proven on the trial in order to warrant a conviction.
    3. Same—on charge of receiving stolen money, a larceny of the money must be shown. It is absolutely essential to a conviction for having received stolen money for gain, knowing it to have been stolen, that the prosecution should prove, beyond a reasonable doubt, that a larceny of the money had been committed. This fact, being the corpus delicti, can not be established alone by the confession of the accused.

      i. Same—sufficiency of proof in the particular case. A charge in an indictment that the defendants, “for their own gain, knowingly and feloniously received one gold coin of the value of §10, one bill, purporting to be issued by the Monmouth National Bank, of the value of $10, and one bill, purporting to be issued by some National bank, of the value pf $5,” knowing them to have been stolen, is not sustained by the testimony of a witness that he found on one of the defendants $10, and on the other $15 and some small change, as it does not show it was of the kind and character of money described in the indictment.
    Writ of Ebbob to the Circuit Court of Randolph county ; the Hon. Amos Watts, Judge, presiding.
    Messrs. Gobdon & Hood, for the plaintiffs in error:
    Confessions made through hope or fear, induced by words or acts of the party having the prisoner in custody (out of court), are not admissible. 1 Arch. Crim. Prae. and PI. side page 127; 1 Greenleaf on 'Evidence, secs. 219, 220; 1 Bouvier’s Die. 4 Confession; Miller v. The People, 39 Ill. 457; Gates v. The People, 14 id. 433; Brown v. The People, 91 id. 506; Hosten v. The People, 51 id. 239.

      Confessions should be received with caution. • 1 Arch. Grim. Prac. and PI. 125, note 1; 1 Greenleaf on Evidence, sec. 214; 1 Bouvier’s Die. 3 Definition of Confession.
    In the United States, the prisoner’s confession, when the corpus delicti is not otherwise proved, is held insufficient for a conviction. May v. The People, 92 Ill. 343, and cases there cited.; 1 Greenleaf on Evidence, sec. 217; 4 Blackstone’s Commentaries, side page 359; Bergen v. The People, 17 Ill. 426.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Mose Williams and Frank Lewis were tried and found guilty at the March term, 1881, of the Randolph circuit court, before the court and a jury, upon a charge of having knowingly and feloniously received, for their own gain, certain bank bills and gold coin, well knowing the same to have .been stolen, and were duly sentenced to the penitentiary, in pursuance of the verdict of the jury, for a period of eighteen months,—to reverse which conviction this writ of error is prosecuted.

A reversal is urged mainly on two grounds: First, it is urged that the conviction is not warranted by the evidence; second, that the court erred both in the giving and refusing of instructions, to the prejudice of the accused.

George Weaver testified, “that on the morning of the 11th of March he saw the defendants coming up over the barges from the boat to where he was standing, and that soon after that he again saw them standing on the levee, and went up to them and took hold of them, and told them he would have to take' them on the hill, and that they broke loose from him and ran off. ” This witness further states that he did not tell them he was arresting them, or what he was going to take them on the hill for.

John W. Ragsdale, marshal of the city of Chester, testifies, that having gone in pursuit of the defendants, he found them asleep in a straw-pile near the road leading to Stone’s landing ; that on waking them up he asked them if they did not get off the boat at Chester, and they said they did. About this time William Eeno, who was also in search of the accused, came up, and in his presence witness asked the accused how much money they had, and they said they had only a dollar. Witness then gave his revolver to Eeno, and told him to guard them while he searched them. The witness says: “I found on Hose Williams $10, and on Frank Lewis $15, and some small change, amounting, I think, to twenty-five cents. I asked them where they got the money, and they .said they had been paid off. I told them their wages would not have amounted to that, and they said they had won it. I then asked them if it was not the proceeds of a robbery on the boat, and they said it was, and that it was given them by a white man, and he told them to go along and keep their mouths shut. They admitted they had been arrested that morning in Chester. I asked them if- they did not know a robbery had been committed on the boat ‘ Golden Dust,’ and they said they had heard some of the ‘grays’ squealing about being robbed on the boat. I do not think Lewis said anything. They said a white man gave it to them. They saw him walking around on the deck, and they asked him what he was doing, and he told them to go along, and they went to" the front of the boat, and he followed them and gave them the money, and told them to keep their mouths shut. While I was searching them, and during the conversation, Eeno was sitting near by guarding them, with two revolvers in his hands. They told me to keep the money and let them go, for they did not want to go to the penitentiary. * * * I had not told them I had arrested them. Had no warrant. Williams done the talking. Lewis said nothing at all. ” '

Eeno’s testimony is substantially the same as Eagsdale’s. There are some slight discrepancies between them in repeating the statements of the accused, but we do not regard this as materially affecting the testimony of either. The foregoing is all the evidence in the case.

It must be conceded that the conduct of the accused is hardly consistent with innocence. Their leaving the boat at the early hour they did, without any apparent legitimate object in doing so, their flight, and secreting themselves in the straw-pile, and their contradictory statements with respect to how they came by the money found on their persons, are all circumstances of the most suspicious character, and leave little room, if any, to doubt that they are guilty of some crime or other; but does the evidence establish, beyond a reasonable doubt, that they committed the particular crime with which they are charged in the indictment ?

Mr. Wharton, in discussing the sufficiency of an indictment for receiving stolen property, among other things says: “The indictment should describe the goods with accuracy, and a variance in this particular will be fatal. ” (2 Wharton on Grim. Law, sec. 1901, 7th ed.) Indeed, it is an elementary and fundamental principle that every material fact essential to the commission of a crime must be distinctly alleged and clearly proven on the trial, in order to warrant a conviction. The specific charge in this case is, that the accused, “for their own gain, knowingly and feloniously received one gold coin of the value of $10, one bill, purporting to be issued by the Monmouth National Bank, of the value of $10, and one bill, purporting to be issued by some National bank, of the value of $5,” knowing the same to have been stolen. It was clearly the duty of the pleader to give, as he did, a proper description of the stolen money alleged to have been received by the accused, otherwise they could not intelligently have prepared for trial; and as this was a material averment in the indictment, it follows the prosecutor was bound to prove it substantially as laid. This has not been done. The only evidence to be found in the record that can be regarded as having the slightest reference to this allegation in the indictment, is the statement of Bags dale with reference to what he found on the defendants when he searched them at the straw-pile. He says : “I found on Hose Williams $10, on Frank Lewis $15, and some small change, amounting to, I think, twenty-five cents.” There is no proof of their having received, or of having about them, a gold coin of any kind, or a National bank bill of any denomination or description. They are not, nor is either of them, so much as mentioned by any witness. It is clear that the accused might well have had the amount of money on their persons testified to by the witness, and not have had a gold coin or bank bill of any kind about them, much less the particular kinds mentioned in the indictment.

It follows, therefore, unless all authority and precedent on the subject are to be set at defiance and wholly disregarded for the purpose of punishing the accused, who are, in all probability, guilty of some crime or other, this conviction can not be sustained.

There is also another fatal objection to the conviction. There is no evidence at all, outside of the very loose, unsatisfactory and contradictory statements of one of the accused, that the money found upon their persons, even if it had been properly described in the indictment, was stolen money. To make out the offence charged in the indictment, it devolved upon the People to prove, beyond a reasonable doubt, that a larceny of the money had been committed. Upon this bottom fact the whole prosecution depended. This fact being what is known as the corpus delicti, could not be established alone by the confessions of the accused. This rule is fully recognized by the ablest text writers of the day and the general current of authorities. 1 Wharton on'Grim. Law, sec. 745; 1 Greenleaf on Evidence, sec. 217; May v. The People, 92 Ill. 343.

As the judgment of the court below will have to be reversed for the reasons already stated, it is unnecessary to consider the exceptions taken to the instructions of the court, or other questions discussed by counsel.

The judgment of the circuit court is reversed, and the cause remanded for further proceedings.

Judgment reversed.


author: Mr. Chief Justice Craig

text:
    Phillippina A. Ritter v. John G. Schenk et al.

      Filed at Mt. Vernon January 18, 1882.

    1. Error will not always reverse—admission of improper evidence. An error in admitting the evidence of an incompetent witness on the hearing of a chancery case, is no ground of reversal when the record contains other evidence which is competent and sufficient to sustain the decree.
    2. Chancery—presumption that only proper evidence was considered. In chancery cases, it will be presumed that the court disregarded incompetent evidence on the hearing, especially where there is competent evidence on which to base its decree.
    3. Payment—presumption from, possession of note by payee. The possession of a promissory note in the hands of the personal representative of the payee, unexplained, is prima facie evidence that it has not been fully paid, and when it is produced in evidence, the burden of proof is on the maker to establish payment, by a preponderance of evidence.
    4. Same —payment of interest after debt has been paid—effect on rights of parties. The payment of interest on the amount claimed to be due when the note was in fact fully paid, the holder claiming compound interest, will not conclude the maker from afterwards proving a prior payment in full, where such payment of interest was made in ignorance of his rights.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Madison county; the Hon. George W. Wall, Judge, presiding.

      Mr. David Gillespie, and Mr. William H. Jones, for the plaintiff in error.
    Messrs. Metcalf & Bradshaw, for the defendants in error.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Phillippina A. Ritter, executrix of the estate, of Henry Ritter, deceased, in the circuit court of Madison county, against John G. Schenk and Anna Schenk, to foreclose a mortgage on certain lands which had been given by the defendants to Henry Ritter in his lifetime, to secure the payment of four certain promissory notes, dated June 7, 1866: one for $600, due September 1, 1866; one for $400, due January 1, 1867; one for $650, due September 1, 1867, and one for $650, due September 1, 1868. The notes were all payable with interest, at the rate of ten per cent per annum. The bill was filed to foreclose the mortgage for a balance claimed to be due on the note due September 1, 1868, the others having been paid and taken up by the mortgagor before the bill was filed. The defendants in their answer set up payment of the note, and the circuit court, on the hearing, on the evidence, found that the note had been paid, and rendered a decree dismissing the bill. The decree was affirmed in the Appellate Court, and complainant in the bill sued out this writ of error.

On the trial, the evidence of Anna Schenk, the wife of John G. Schenk, was offered and allowed to be read, for the purpose of proving payment of the note by her, as agent of her husband. The admission of this evidence is relied upon as error. We shall not stop' to inquire whether the court erred in the admission of this evidence, for the reason that the payment of the note was proven by other testimony, and if the court erred in the admission of the evidence of the wife, such an error is no ground of reversal where the record contains evidence which is competent, sufficient to sustain the decree. If the evidence of the wife was incompetent, it will he presumed the court disregarded it on the rendition of the decree, and determined the case on the legitimate evidence which was introduced on the hearing, and when this has been done, and the evidence in the record is sufficient to sustain the decree, it will he affirmed.

This brings us to the consideration of the evidence in regard to the payment of the note. Much reliance is placed on the fact that the note had never been surrendered to the defendant, hut was in possession of complainant. The possession of the note in the hands of complainant, unexplained, was prima facie evidence that it had not been fully paid, and when the note was produced by complainant, and offered in evidence, the burden of proof rested on defendant to establish payment by a preponderance of evidence. Was the evidence of defendant sufficient ? If it was, the decree dismissing the hill was right, and it will have to be affirmed.

It appears that Henry Bitter, the payee of the notes, died in November, 1870. Prior to his death the two notes first due had been paid, and surrendered to Schenk. After the death of Bitter, the note in question, upon which no payments had been made, and the other' note for $650, due September 1, 1867, came into the hands of Herman Bitter, son and agent of complainant. On the back of the last note the following credits were indorsed: January 1, 1869, $159.62; September 11, 1869, $600, which would leave a small balance due on this note, and the principal, and interest from the date thereof, due on the note in question at the time Bitter died, and when the notes came into the hands of his son for collection. Subsequently, and on the 31st of January, 1871, a credit of $265 was indorsed on the note in controversy. After this payment, and on or about the 8th day of February, 1872, defendant claims he paid $800, which discharged ■ the entire indebtedness. The mortgage debt on February 8, 1872, unless the interest was compounded, which could not be done, would not exceed §800. The defendant testified, clearly, that the sum of $800 was paid. He details the circumstances under which the money was paid; he says he had it in eight packages, of $100 each, and his wife, under his direction, paid it over to Bitter. In regard to the payment of the money, the defendant is corroborated by John Schiple, who was present at the time, and saw the money paid. He testified: “I was present when Mrs. Schenk paid Herman Bitter some money. It was in the month of February, 1872. I was standing in the door at Bitter’s. lumber yard office, and Mrs. Schenk had some money in a pocket handkerchief. She handed it to him. The money was rolled up in a newspaper, in eight different papers. Bitter opened one package, counted it, and asked Mrs. Schenk how much was in a package. He said, $100 in each roll ? She said yes. He counted it, and said there is $800, all right. The reason why I was present at. that time is, I had come there to get some lumber. I don’t know what Mrs. Schenk paid this money to Bitter for. John G-. Schenk and Philip Daum were present at the time the money was paid. Mr. Schenk said, I was here yesterday to pay you the money, but you would not take it because you wanted compound interest,—that is, there was a dispute about compound interest. ”

Here is the evidence of two witnesses who testify that $800 was paid in February, 1872, and the evidence is not contradicted by Bitter, or any other person. Bitter is unable to state the amount of money he did receive at or about that time. Had he kept a book in which he entered the amount of money received on account of the estate, and had he been able to testify that no such sum of money was received, there might be some ground for calling in question the veracity of the two witnesses upon this point; but such was not the case. Although Bitter remembers the fact that Schenk and his wife, and the witness Schiple, were present at the time men-turned, and that money was paid, he has no means of telling the amount paid. The fact that the note was not surrendered when the $800 was paid, might be regarded as a circumstance tending to show that it was not fully paid, had there been no evidence tending to explain this fact, but the explanation is found in the fact that Bitter computed compound interest on the note, and retained possession of the note because the money paid was not sufficient to discharge the note and compound interest. Nor do we regard the fact of any importance, that, in 1873, the defendant paid Bitter interest on the balance he claimed to be due. If the amount due on the note was paid in February, 1872, as the evidence shows it was, the fact that Schenk, in ignorance of his rights, made a subsequent payment, on demand of Bitter, would not conclude him, when sued on the note, from proving a prior payment in full'. We are fully satisfied that the entire amount of the mortgage indebtedness was paid.

The -decision of the Appellate Court will be affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    The First National Bank of Flora v. Aaron R. Burkett.

      Filed at Mt. Vernon January 18, 1882.

    1. Insolvent debtors—discharge from arrest or imprisonment—malice as “the gist of the action." The word “malice,” in sec. 2, ch. 72, Rev. Stat., éntitled “Insolvent Debtors,” implies a wrong inflicted on another with an evil intent or purpose. It requires the intentional perpetration of an injury or wrong on another. Such intention to commit the wrong is necessary to deprive the party of the right to a discharge from arrest or impiisonment under the act.
    2. A party shipped a lot of hogs to commission merchants in Cincinnati for sale, taking a bill of lading from the railroad company, after which he applied for and obtained a loan of $400 from a bank, giving the bank a sight-draft on the commission merchants for that sum, and pledging the bill of lading, which he attached to the draft, and then, before the draft was presented, collected the entire sum due from the commission men, leaving nothing to pay his draft, which was protested: Held, that his act in collecting the money, after giving the draft, was an intentional wrong, little, if anything, short of a criminal act, and was malicious, in the statutory sense.
    3. So where a judgment was recovered in an action on the case based upon such cause of action, and upon the non-payment of the judgment a capias ad satisfaciendum was issued, under which the defendant was arrested and imprisoned, it was held, that by reason of his wrongful act he could not avail of the provisions of the Insolvent Debtor’s act to "obtain his discharge from the imprisonment.
    4. Action—what is the gist. The gist of an action is the cause, ground or foundation of the suit, without which it will not lie, or in other words, the ground essential to give rise to a cause of action.
    5. Same—when malice is of the gist. If a party wrongfully and dishonestly draws money of his own in the hands of another, after giving a draft for the same to one who advances him the money upon it, the fraud so practiced upon the party advancing him the money is of the essence or foundation of an action on the case against him, and is malicious; within the statutory sense of that word, as used in section 2 of the Insolvent Debtor’s act.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Clay county; the Hon. C. S. Conger, Judge, presiding.
    Mr. Bufus Cope, for the appellant.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears that appellee shipped by rail to Cincinnati, Ohio, sixty-five head of hogs. He consigned them to Green, Huddleson & Co. for sale, taking a hill of lading from the railroad company. He applied to the First National Bank of Flora for a loan of $400. He drew a sight draft for that sum on Green, Huddleson & Co., and pledged the bill of lading, subject to charges, for its payment, and attached it to the draft. The hogs were received and sold, realizing $425, but before the draft was presented, appellee collected that and all other money he had in the hands of that firm. When the draft was presented, for the want of funds in the hands of the drawees it was protested for non-payment. The bank thereupon brought case, and on trial recovered a judgment against appellee for the sum of $401.3.8, which has not been paid or satisfied. Fraud was averred in the declaration as the ground of action.

Afterwards, the judgment remaining unpaid, plaintiff sued out a capias ad satisfaciendum, and under it defendant was imprisoned. He thereupon filed a petition to the county court for a discharge, on the ground that * he was illegally committed. The bank answered, setting out the proceedings in full in the suit in which it had recovered the judgment, but the county court sustained a demurrer to the answer, and discharged defendant. The hank appealed to the circuit court, where the judgment was affirmed. The bank there-, upon appealed to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed, and the case is brought to this court on a certificate that the case involves a- question of law which is required to be passed on by this court.

The assignment of errors question's the correctness of the construction given by the Appellate Court to the second section of chapter 72, in relation to insolvent debtors. It provides, that “when any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action wherein malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment by complying with the provisions of this act. ” No question as to such compliance is raised on this record, it being contended that under the facts disclosed appellee was not entitled to a release,—that the gist of the action in which judgment was recovered, was malice.

This court had occasion, in the case of The People v. Greer, 43 Ill. 213, to give a construction to this clause of the section. It was there said, that the intention was to release all persons confined on civil process, by their compliance with the requirements of the statute, although the cause was founded in tort, unless the tort was malicious, or, what amounts to the same thing, where the tort originated in malice or where malice was the -gist of the action. What, then, is malice ?

In the case of Harpham v. Whitney, 77 Ill. 32, the case of Mitchell v. Jenkins, 5 B. & A. 594, was referred to as defining malice. It was there said by Pabke, J., “that the term ‘malice’ in this form of. action, is not to be considered in the" sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.” That definition was applied in a case of malicious prosecution. The term has been defined: “A formed design of doing mischief to another,”—“a wicked intention to do an injury to another. ” Thus, the forsaking of' a husband or wife of the other, without sufficient cause, is said to be a malicious abandonment. Malicious mischief is the wanton or reckless destruction of or injury to property. It in some cases implies a wrong inflicted on another with an evil intent or purpose, and this is the sense in which it is employed in this statute. It requires the intentional perpetration of an injury or wrong on another. The wrong and intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest or imprisonment. In this case there was an intentional wrong, little, if anything, short of a criminal act, and it was malicious, in the statutory sense.

Being malicious, was it the gist of the action ? The gist is defined to be the cause for which an action will lie,—the ground or foundation of a suit, without which it would not be maintainable,—the essential ground or object of a suit, and without which there is not a cause of action. In this case an action on the case could not have been maintained had not the defendant wrongfully and dishonestly drawn the money for which the hogs were sold, and for which he had given a draft to the bank on Green, Huddleson & Co., and for which draft the bank paid him. This fraud was of the essence"or foundation of the action, and in the statutory sense it was both wicked and malicious.

We are therefore of opinion that the county court erred in discharging appellee from the arrest and imprisonment, and it was error in the circuit and Appellate courts to affirm the judgment, and the judgment of the latter court must be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Scott dissenting.


author:
Mr. Justice Schoufield
      Scott and Sheldon, JJ.:

text:
    Charles H. Stark et al. v. Ansel L. Brown et al.

      Filed at Mt. Vernon January 18, 1882.

    1. Infants—guardian ad litem—duty of guardian. It is the duty of a guardian ad litem of infant defendants, to submit to the court, for its consideration and decision, every question involving the rights of his wards.
    2. Same—duty of the court. But the court will protect the rights of infants where they are manifestly entitled to something, although their guardian ad litem neglects to claim it in their behalf.
    3. Same—;pleading and evidence—u'hat defences under general answer of guardian. On a bill for partition against infants, the guardian ad litem answered, praying the protection of the court for his wards, and denying that the petitioners had any interest in or title to the premises: Held, that under such answer all defences that could be legally availed of, under any answer, were to be considered as interposed on behalf of the minors, and hence they could avail of the Statute of Limitations under the act of 1839.

      4. Limitation—whether properly pleaded. On a bill for partition the adult defendants answered, denying that the petitioners had any interest in the land, and alleging that the tract was owned by their father, that he sold the same to another, since deceased, whose heirs are the owners of it, subject to a deed of trust or mortgage executed by such grantee to their father, and that the former, at the time of his death, was in the actual possession of the premises, and had been for several years, and had placed upon the same valuable and permanent improvements, and that their father and his said grantee had paid the taxes thereon for thirty years, consecutively: Held, that such answer was not technically sufficient to present a defence under the second section of the Limitation law of 1839.
    5. Purchaser—who may purchase at tax sale—and acquire color of title. An administrator of an estate, having no power or control over the land of his intestate, and not being required to pay the taxes thereon, may rightfully become the purchaser of the same, as against the heirs, at a sale for the taxes thereon, and set up his deed as color of title, under the Limitation law of 1839.
    6. Practice—when to object—admission of evidence under defective pleading. Although an answer setting up a defence of the Limitation law of 1839 be technically defective, if no exception is taken to it, and no objection is made on the hearing to evidence tending to show color of title in an ancestor of the defendant, or payment of taxes by him or his grantee, and the case is tried precisely as if the defence had been formally pleaded, such evidence' may be considered, and an objection to the answer and the evidence under it, for the first time in this court, comes too late.
    7. Administrator—powers and duties in respect io land. It was not the duty of an administrator, under the laws in force in 1844, to pay the taxes upon the lands of his intestate, the title being in the heirs, who were entitled to the rents and profits. His. power was only to apply for and obtain leave to sell the lands for the payment of debts, and he could not take any steps to remove liens or incumbrances of any kind.
    Writ of Error to the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    William P. Hall, now deceased, in his lifetime was the owner of the patent title to the south-west quarter of the south-west quarter of section twenty-eight (28), in township four (4) north, of range seven (7) west of the third principal meridian. Said William P. Hall died intestate on the 8th of October, 1839, leaving certain children surviving him as his heirs at law, who have all since conveyed their interest in said tract of land to William H. Hall, and subsequently-said William H. Hall conveyed an undivided half of said tract to Ansel L. Brown. Brown filed his petition for partition in the office of the clerk of the circuit court of Madison county, to the October term, 1879, of that- court, against William H. Hall and the plaintiffs in error. A guardian ad litem was appointed to answer and defend for William Prunse, Charles Prunse, Dorris Prunse, Henry Prunse, and Frederick Prunse, who were minors, and without guardian. He answered, praying the protection of the court for his Wards, and denying that either the said petitioners or the said Hall had any interest in or title to the premises.
    Amelia Fressen, one of the children and heirs at law of William Prunse, deceased, together with her husband, George Fressen, answered, denying that Brown or Hall had any interest in or title to said real estate, in possession, remainder, reversion, or otherwise, and averring that she, together with her co-defendants, William Prunse, Charles Prunse, Dorris Prunse, and Frederick Prunse, are the owners in fee simple of said premises, and derive title thereto by descent from their deceased father, William Prunse, and deny that petitioner is entitled to the relief prayed for. Charles H. Stark, Nicholas C.' Stark, and Rachel M. Stark, answered, denying that either Brown or Hall have any interest in said tract of land, and alleging that said tract was owned by Solon Stark, their father, in fee, in his lifetime; that he sold and conveyed the same to William Prunse, since deceased; that the heirs at law of said Prunse are the owners of said land, subject to a deed of trust or mortgage executed by said Prunse to said Stark; that said Prunse was, at the time of his death, in the actual possession of said premises, and had been for years past, and has placed upon the same valuable and permanent improvements; that said Stark and said Prunse have paid the taxes on said land for thirty years, consecutively.

      On hearing, the circuit court decreed in conformity with the prayer of the petition, declaring that the title and claim of the plaintiffs in error was void and of no effect, etc.
    Messrs. Krome & Hadley, and Mr. David Gillespie, for the plaintiffs in error.
    Messrs. Irwin & Springer, for the defendants in error.
   Mr. Justice Schoufield

delivered the opinion of the Court:

Whatever title Solon Stark, in his lifetime, obtained to the tract of land in controversy, the plaintiffs in error have, and they therefore, on the hearing, gave evidence tending to show that he had color of title, made in good faith, and paid all taxes assessed thereon for more than seven successive years, and so that their defence against the claim of Brown and Hall, under the patent title, was complete, by virtue of the second section of the act of March 2, 1839, entitled, “An act to quiet possessions, and confirm titles to land. ”

But the objection is made that this- defence is not set up in the answers, and can not, therefore, be sustained,—and the consideration of this question necessarily precedes all discussion upon the merits. William Prunse, Charles Prunse, Dorris Prunse, Frederick Prunse, and Henry Prunse, were minors at the time of the hearing, and answered by their guardian ad litem. It was the special duty of the guardian ad litem to submit to the court, for its consideration and decision, every question involving the rights of his wards. Knickerbocker v. De Freest, 2 Paige, 304. And the court will protect the rights of infants, where they are manifestly entitled to something, althoiigh their guardian ad litem neglects to claim it in their behalf. Stephens et al. v. Van Buren et al. 1 Paige, 479. The principle has been approvingly recognized by this court in Peak v. Pricer, 21 Ill. 164; Rhoads v. Rhoads, 43 id. 239; Chaffin v. Heirs of Kimball, 23 id. 36; Fischer v. Fischer, 54 id. 231; Cartwright v. Wise, 14 id. 417. We are, therefore, of opinion that under the answer filed by the guardian ad litem, all defences that could be legally availed of, under any answer, are to be considered as interposed on behalf of the minors.

The answer of the Starks, who claim- as holders of a mortgage executed by William Prunse to Solon Stark, is, undoubtedly, not technically sufficient to present a defence under the second section of the Limitation act of March 2, 1839, supra, upon the authority of Nichols v. Padfield, 77 Ill. 253. Still, it does show that title in Solon Stark, and payment of taxes by him, are relied upon as a defence, and no exception was taken to its sufficiency, and no objection was urged to the introduction of evidence tending to show color of title in Solon Stark, or payment of taxes, etc., by him, upon the hearing. The case would seem to have been tried precisely as if the defence of color of title in Solon Stark, made in good faith, and payment of taxes thereunder by him for seven successive years, had been specifically set up in the answer as a defence under the second section of the Limitation act of 1839. Had exceptions been sustained to the answer for this reason, or had objection been urged to the introduction of evidence on .the hearing, upon the ground that this defence was not set up in the answer, it would have been within the power of the court to have allowed the answer to be amended, so as to obviate all objection. Jefferson County v. Ferguson et al. 13 Ill. 33.

We are, therefore, of opinion that under all the circumstances, the objection, so far as it affects the answer of the Starks, is also untenable. It is urged for the first time in this court, and must be regarded as coming too late.

We come, then, to the question, was the deed to Solon Stark made in good faith? There is no controversy but that it is good color of title, and it is admitted that he paid taxes under it for more than seven successive years. Solon Stark administered upon the estate of William P. Hall, deceased, on the 2d of January, 1840, and his administration continued as late as March, 1849. He obtained an order of the proper court to sell real estate to pay debts, and sold a large amount of real estate for that purpose; but, notwithstanding this, the estate was insolvent, and a considerable per cent upon the debts was never paid. Stark, as administrator, returned no inventory of this tract of land, and obtained no order to sell it to pay debts. The taxes assessed against it for the year 1843 being unpaid, judgment was rendered for the same by the circuit court of Madison county, at its May term, 1844, and the land was subsequently sold under that judgment to Solon Stark; and there being no redemption from this sale, the sheriff of Madison county executed a deed to him for the land, on the 4th of December, 1848.

The contention of defendants in error is, that Solon Stark, by virtue of his position as administrator, was a trustee over this land, and could not, therefore, in good faith purchase it. Was he such trustee ? It was not the duty of the administrator to pay the taxes on this land. It descended to the heirs at law, and they at. once became entitled to the rents and ■profits thereafter maturing. (Green v. Massie, 13 Ill. 363.) The administrator, in the contingency, only, of the insufficiency of the personal estate to pay the debts, is empowered and required to make application for a decree authorizing him to sell the real estate to supply the deficiency in the assets; but he is limited strictly to obtaining and executing such decree, and is not authorized to remove incumbrances or liens of any kind which may affect the real estate. Phelps v. Funkhouser, 39 Ill. 401; Cutter v. Thompson, 51 id. 390; Gridley v. Watson, 53 id. 186; Shoemate et al. v. Lockridge, id. 503 ; Foltz v. Prase, 17 id. 487; Walbridge v. Day, 31 id. 379; Helm v. Cantrell, 59 id. 524; Stone v. Wood, 16 id. 177; Sutherland v. Hamson, 86 id. 363.

The question here is between the administrator and the heirs at law. The duty of inventorying real estate affects creditors of the estate only. It furnishes notice to them of the existence of such estate, but the rights of the heirs are unaffected by it in any way. In the present instance, if the ' estate had been inventoried, as it should have been, it would, or at least should, also have been included in the decree, and sold for the payment of debts; and it is impossible that the heirs can have been in any way prejudiced by not having had it so included and sold. Since, then, the administrator owed no duty to pay the taxes assessed against this land, and owed no duty in regard to it affecting the rights of the heirs which he has failed to discharge, we are of opinion he might, in good faith, become its purchaser at a sale for taxes. His purchase conflicting with no duty he owed the heirs at law in regard to the land, in allowing it to he made, no temptation is afforded to a betrayal of trust.

It has been held, and the principle would seem to be controlling here, that an administrator may lawfully deal with property of his intestate which is not within his control as administrator, as, for instance, property in a different State, and administered upon by a different administrator under the laws of that State. Sheldon v. Rice, 30 Mich. 296.

There is no other circumstance in evidence tending to impeach the good faith of Stark’s title. Indeed, the tendency of the evidence is, very clearly, to show that he was endeavoring to, and supposed in fact he was, getting a good title. Even where it is shown a party knows of defects in a title, we have held it was not conclusive evidence of bad faith. Davis v. Hall, 92 Ill. 85; Smith v. Ferguson, 91 id. 304; Cook v. Norton, 43 id. 391.

We think, under the evidence, the decree below is erroneous. It is, therefore, reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.

Scott and Sheldon, JJ.:

We do not concur in the view that the administrator of an estate may purchase at a sale for the taxes the lands of his intestate, and hold them for himself. We think that holding the relation he does, under our law, toward the estate and the intestate’s lands, the policy and principles of the law do not allow him thus to acquire title to such lands for his own benefit,—that the purchase of them at a tax sale should be held to inure for the benefit of the estate, and be held hut as a mode of payment of the taxes on the lands on behalf of the estate, and hence that title so acquired by an administrator is not color of title in himself, in good faith.


author: Mr. Justice Sheldon

text:
    The St. Louis, Alton and Terre Haute Railroad Company v. John W. Karnes.

      Filed at Mt. Vernon January 18, 1882.

    1. Eminent domain—lawfulness of possession obtained under the act— before and after a reversal. After an appeal had been prayed and allowed in favor of the land owner, in a proceeding to condemn his land for a right of way, in which his compensation had been fixed by a jury, the railroad company seeking the condemnation paid the sum found by the jury to the county treasurer, and gave the proper bond, as required by the statute, to give a right to enter upon the land. Before the judgment in the proceeding was reversed, on the appeal to this court, the land owner accepted the money deposited with the treasurer, which he never offered to return, and without causing the remanding order to be filed and the cause redocketed for further proceedings brought ejectment against the lessees of the railroad company for the land used as a right of way: Held, that as the possession, when first taken, was lawful, the mere reversal of the judgment without taking any further steps, or returning or offering to return the money paid, did not render the continuance of such possession unlawful, and that the action could not be maintained.
    2. The reversal of a judgment condemning land for a right of way, on appeal by the land owner, will not divest the possession of the corporation procuring the condemnation lawfully obtained, or render its continuance unlawful. It has no effect whatever upon the right of possession. In such case, if the land owner deems the compensation allowed and paid to him as insufficient, he should, within two years after the reversal, have the cause remanded and docketed, giving the proper notice, and have another trial. If he fails to do so, and retains the sum paid him, he may be regarded as abandoning any claim for further compensation.
    3. Ejectment-—must be an unlawful entry and unjust detention. The action of ejectment proceeds for1 the possession of premises, claiming that they have been unlawfully entered and unjustly withheld, and facts which go to disprove these, make a legal defence.
    Appeal from the Circuit Court of Saline county; the Hon. N. M. Laws-, Judge, presiding.
    Messrs. Youngblood & Moyebs, for the appellant,
    contended that the acceptance of the compensation fixed by the jury by the appellee, pending his appeal, and his retaining the same after reversal of the judgment of condemnation, estops him from maintaining ejectment for the land embraced in the right of way, citing Bigelow on Estoppel, 514; Raplee v. Stewart, 27 N. H. 310; Duff v. Wynkoop, 74 Pa. St. 300; Swanson v. Tarkington, 7 Heisk. 612; Keen v. City of Chicago, 38 Ill. 322; Martel v. City of East St. Louis, 94 id. 67; McCarthy v. Lavasche, 89 id. 270.
    That an estoppel may be shown in defence of an action of ejectment: Noble v. Christman, 88 Ill. 186.
    It was not the duty of the company to have the case redocketed. The acceptance of the condemnation money pending the appeal, and its retention, justified the assumption that Karnes had concluded to acquiesce in the assessment. Laws of 1877, p. 745, secs. 84, 85.
    The evidence offered and refused showed a rightful entry upon the premises, and a lawful continuance of that possession, and should have been admitted as showing a defence.
    Mr. H. H. Habbis, for the appellee:
    The condemnation proceeding upon which appellant relies for a defence was reversed, and has never since been redocketed, and hence the proceeding to condemn has been abandoned. Laws of 1877, p. 152, sec. 34.
    An estoppel in pais, being merely an equitable right, can not avail in a suit at law. In ejectment the legal title must prevail. Blake v. Fash, 44 Ill. 303; Mills v. Graves, 38 id. 464.
    If the appellant had purchased the land from Karnes, and paid him in full, still Karnes could maintain ejectment. Fleming v. Carter, 70 Ill. 280.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an. action of ejectment, brought by Karnes, the appellee, against the St. Louis, Alton and Terre Haute Bail-road Company, the appellant, to recover possession of the lands described in the declaration, which are occupied by appellant as right of way for the Belleville and Eldorado railroad, of which road appellant is lessee. The plaintiff recovered, and the defendant appealed.

On the trial in the court below the defendant offered in evidence the record of a condemnation proceeding had in the county court of Saline county, where the lands in controversy are situate, on petition of the Belleville and Eldorado Bail-road Company to condemn these lands of the plaintiff for the right of way of such railroad, • showing that a trial was duly had between the parties, before a jury, for the assessment of the compensation for such right of way, the. verdict óf a jury fixing such compensation, and judgment duly rendered thereon, the taking of an appeal from the judgment by Karnes to the Supreme Court, on December 18, 1876, and the prescribing by the court, under the statute, of the bond which the railroad company should give to authorize its entry upon the use of the property condemned. The plaintiff objected to the introduction of the record, on the ground that the judgment had been by the Supreme Court, at its June term, 1878, reversed, and the cause remanded, and had never, by either of the parties, been reinstated on the docket of the Saline county court, which objection the court sustained, and rejected the offered evidence. An offered receipt by Karnes from the county treasurer of Saline county, dated February 17, 1877, of the condemnation money paid by the railroad company, was in like manner rejected. Karnes testified in the case, that on February 27, 1877, he received from the county treasurer of Saline county the condemnation money paid to the treasurer by the railroad company for the right of way over his lands for which this suit was brought; that he had never paid, or offered to pay, any part of the money back to the railroad company, or any of its agents, and that he did not propose to pay it back, for he thought the company had damaged him more than that amount.

It was admitted by the parties that the judgment- in the condemnation proceeding was by the Supreme Court reversed, and the cause remanded, after Karnes received the condemnation money from the county treasurer, and that the railroad company executed the bond, as prescribed by the court, at the time of taking the appeal by Karnes, and that the railroad company paid all the condemnation money fixed by the jury before the company entered on the premises; that the defendant company was the lessee of the Belleville and Eldorado railroad company, and as such lessee occupied the premises described in the declaration.

We are of opinion the court below erred in rejecting the evidence of the record of the condemnation proceedings,- and that such evidence, if it had been admitted, would have shown, in connection with the other evidence in the ease, a defence to the suit. It would have shown the ascertainment, by the verdict of a jury under the Eminent Domain act, of the compensation to be paid by the railroad company for the land, an appeal taken from the assessment by the land owner, and the giving thereupon by the railroad company of the requisite bond, under the statute entitling it to enter upon the use of the property on payment of the compensation fixed hy the jury, the full payment by the railroad company of such compensation, and its acceptance and the retaining-of it ever after by the owner of the land. After the amount of the compensation to be paid to the land owner has been "found by the jury, under the Eminent Domain act, the 10th section of the act directs that the court shall make an order that the petitioner enter upon the property sought to be comdemned, and the use of the same, upon payment of the compensation as ascertained by the finding of the jury, and that such order, with evidence of such payment, shall constitute complete justification of the taking of the property.

There exists in this case the justification of such order and evidence of payment. -True, an appeal was taken by the defendant in the proceeding, as provided for by sections 12 and 13. But it is the provision of the 13th section, that notwithstanding such appeal the petitioner shall have the right to enter upon the use of the property, upon entering into bond, with sufficient surety, to be approved by the court, to the party interested, for the payment to him of “such compensation as may be finally adjudged in the case.” Such bond, so approved, was given by the railroad company. It paid the compensation which had been adjudged, to the county treasurer, as the act prescribes may be, and the defendant in the proceeding received it from the treasurer, and the railroad company entered into the possession of the premises. This was a rightful possession, acquired in the exact mode prescribed by the statute, ‘whereby the company might, after the taking of the appeal, rightfully enter upon the use of the property. This lawful possession, so acquired, has remained ever since, fpr aught we see. The reversal of the judgment, on the appeal, did not divest the possession, or render its continuance unlawful. There is no intimation in the statute that the reversal shall have that effect, or any effect whatever upon the right of possession, it being entirely silent in that regard. The company had the enjoyment of the use of ■ the land, and, as an equivalent therefor, the defendant had the compensation for such use, as it had been ascertained by the finding of a jury, and he held the bond of the company for the payment of any further compensation which might be adjudged in the case. No further compensation has been adjudged, so that there has nothing occurred since the entering into possession to affect the railroad company with any default whatever.

The judgment appealed from was reversed for error in an instruction given to the jury. Had the defendant, after the reversal, desired the opportunity of having the question of his right to any further compensation submitted to trial before another jury, it was open to him to proceed further in the case for such purpose. He lay by for two years without taking any step in that way.

B is the provision of the statute that when a cause is remanded by the Supreme Court, upon a transcript of the order of the court remanding the same being filed in the court from which the cause was removed, and the prescribed notice given to the adverse party, the cause shall be reinstated therein, and that if neither party shall file such transcript within two years from the time of making the final order of the Supreme Court remanding any judgment or proceeding, the cause shall be considered as abandoned, and no further action shall be-had therein. (Laws 1877, p. 152, secs. 83, 84.) If, by delay in not moving to have the proceeding reinstated in the county court within the two years limited by the statute, appellee has lost his chance for having an assessment of any further compensation made in that case, the fault is his own. The railroad company had given to it the right of entering upon the use of the property, with its bond given for the payment of such compensation as might be finally adjudged in the case. The company being content with the compensation that had been assessed in the case, which it had paid and the defendant had accepted, and it failing after the reversal to take any step toward the reinstatement of the case in the court below, it was for the defendant to move in that direction in order to have another assessment of compensation made in the case, and his not doing so might warrant the conclusion that he was content with the compensation which had been adjudged and received by him. At any rate, we can not see how the company’s rightful possession, given to it under the statute, can be regarded as changed into a wrongful possession, so long as it is in no default in not paying any further compensation adjudged in the case. As said by this court in Stow v. Russell, 36 Ill. 36, ejectment “proceeds for the possession of the premises, claiming that they have been unlawfully entered into and unjustly withheld. Facts which go to disprove these, make a legal defence. ”

There would not appear here to have been an unlawful entry into or an unjustly withholding of the premises claimed, but, on the contrary, a possession by defendant which had been expressly given by the statute.

The judgment must be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Soholfield

text:
    James C. Norris v. The People of the State of Illinois.

      Filed at Mt. Vernon January 18, 1882.

      Murder—sufficiency of the evidence to convict. Where the deceased, who was shot by assassins, in his dying declaration stated that the defendant and his confederates were distinctly recognized by him at the time of the shooting, which was corroborated by another witness’ testimony of a conversation with the defendant, which tended to show his guilty knowledge and ax>prehension of arrest for the killing, and the defence was an alibi attempted to he shown by those charged as being confederates and actors in the homicide, and then- relatives, it was held, that the evidence did not justify the court in granting a new trial on a conviction, and sentence of the defendant to the penitentiary for eighteen years.
    Writ of Error to the Circuit Court of Williamson county; the Hon. Monroe C. Crawford, Judge, presiding.
    Mr. William W. Clemens, for the plaintiff in error:
    The law is, even in civil cases, and where the evidence is conflicting, if the verdict is against the clear weight and preponderance of the evidence it will not he allowed to stand. Black v. McMullen, 91 Ill. 32; Dawson v. Robins, 5 Gilm. 72; Dufield v. Cross, 13 Ill. 699; Summers v. Stark, 76 id. 210; Bunker et al. v. Green, 48 id. 247; Jacquin v. Davidson, 49 id. 83; Bell v. Gordon, 86 id. 501; Southworth v. Hoag, 42 .id. 449; Toledo, Wabash and Western Ry. Co. v. Moore, Admx. 77 id. 219; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 id. 274; Lowry v. Orr et al. 1 Gilm. 83.
    The rule that an appellate court will not interfere to set aside a verdict unless it is palpably against the evidence, obtains in the largest sense in civil cases; the rule is not so strict in criminal cases, especially of a capital character. In criminal cases, new trials have been constantly granted by the Supreme Court upon its conviction that verdicts were not warranted by the proof. Falk v. People, 42 Ill. 333.
    The Supreme Court reversed a conviction where the defence of an alibi was set up and maintained by one witness. Otmer v. People, 76 Ill. 153.
    Mr. James McCartney, Attorney General, for the People,
    commented upon the evidence, contending that it was sufficient to sustain the conviction, and upon the evidence of an alibi, and to show that a new trial should not be granted in such a case as this, cited Connaghan v. People, 88 Ill. 460; Needham v. People, 98 id. 275; Higgins v. People, id. 519.
   Mr. Justice Soholfield

delivered the opinion of the Court:

At the May term, 1876, of the Williamson county circuit court, the plaintiff in error was convicted of the murder of James Henderson, and sentenced to the penitentiary for the term of eighteen years. This writ of error is prosecuted for the purpose of having that conviction reversed, on the ground that it is not sustained by the evidence.

That- James Henderson was murdered, is not a matter of controversy. The claim of plaintiff in error is, that he had no participation in the act. Henderson was shot by assassins, concealed, at first, behind a log heap, some thirty or forty yard's distant,- while he was re.clining upon his elbow, which rósted on the ground, with his back toward the assassins. There were three of the assassins, each armed with a shotgun, and they fired, in all, some six or seven times. Immediately after they fired the first time, he turned his body, so as to face them, and his dying declaration was that they were in his sight- near five minutes, and that they were plaintiff in error, and John Bulliner, and either Emanuel or Monroe Bulliner. His statement is, to some extent, corroborated by the evidence of Jacob Beard, who testified to a conversation had with plaintiff in error on the 21st of May, 1874, in Cairo, tending to show, at least, guilty knowledge and apprehension of arrest in consequence of the shooting of Henderson.

The defence was that of an alibi,—that plaintiff in error, at the time of the shooting, was in McNairy county, Tennessee. The evidence by which it is supported, consists, in part, of the testimony of the Bulliners, who are themselves implicated in the shooting, in part of the testimony of their relatives, and in part of the testimony of others not apparently interested. It was, under all the circumstances, a fair question' for the jury what effect should be given to this evidence. The Bulliners certainly were interested in discrediting Henderson’s dying declaration, and their relatives were interested, in less degree only, the same way. We do not regard the data given by the other witnesses as that by which they claim to know that plaintiff in error was in McNairy county, Tennessee, at the time of the shooting, as beyond question, and a slight mistake in that regard makes their evidence worthless.

We do not, under all the circumstances, feel warranted in saying the conviction is not sustained by the evidence.

The judgment is affirmed.

Judgment affirmed.


text:
    William Anderson et al. v. Rebecca J. Irwin.

      Filed at Mt. Vernon January 18, 1882.
    1. Evidence—primary and secondary. It is a familiar rule that no evidence will ‘be received of a fact which, from its very nature, shows there might be better evidence to such fact, without first satisfactorily accounting for the absence of the higher order of evidence. The counterpart of this rule is, that the law is satisfied where the fact sought to be established has been proven by the best evidence of which, in its nature, it is susceptible.
    2. Same—degree of proof against one who destroys written evidence. Where one deliberately destroys, or purposely induces another to destroy, a written instrument of any kind, and the contents thereof subsequently become a matter of judicial inquiry between the spoliator and an innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right founded upon it. In such ease, slight evidence will suffice.
    3. So, where a will duly executed and attested was destroyed, with the connivance of a part of the heirs of the testator, and no copy appearing to be in existence, in a suit by a devisee not a party to such destruction, it was held, that the latter was only required to show, in general terms, the disposition which the testator made of his property by the instrument, and that it purported to be his will, and was duly attested by the requisite number of witnesses.
    4. Wild—evidence as to sanity of testator. On a bill to establish a will destroyed after the testator’s death, proof of the sanity of the testator is not indispensable in the absence of any proof that he was not in Ms sound mind, and in such case the disposition made by him of his property may of itself afford sufficient evidence of Ms sanity.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding.
    Mr. F. G\ Cockrell, and Mr. J. C. Allen, for the plaintiffs in error:
    When a party seeks to establish a lost instrument, he must show that it was executed with all' the formalities required by law,—that it has been lost or destroyed,—before he can give evidence of its contents. Kimbell v. Morrell, 4 Greenl. 368; 2 Greenleaf on Evidence, sec. 368; Owen v. Thomas, 33 Ill. 320.
    The contents of the instrument must be proven by evidence “clear and most stringent.” 2 Greenleaf on Evidence, sec. 688 a; Davis v. Sigourny, 8 Metc. 487; Kimbell v. Morrell, 4 Greenl. 368.
    The evidence must show that the testator was of sound mind when the will was executed. Dickie v. Carter, 42 Ill. 376 ; Andrews v. Black, 43 id. 266; Crawley v. Crawley, 80 id. 469.
    Messrs. Hagle & Finch, for the defendant in error: '
    Where a party has suppressed or destroyed any species of evidence or written instrument, or refuses to produce books and papers; his opponent may give parol proof of their contents, if they are shown to be, or to have been, in possession of the opposite party; and if such secondary evidence is imperfect, vague and uncertain, every intendment and presumption shall be against the party who might remove all doubt, etc. And where there is sufficient evidence to warrant the belief that the opposite party once had the instrument in his possession, the rule applies with all its force. Rector v. Rector, 3 Gilm. 105; Winchell et al. v. Edwards et al. 57 Ill. 41.

      The right of a party claiming under a will, arises out of the will itself, and becomes a vested right at the death of the testator. The probate, or proof, of the will does not confer the right, but is merely the evidence, or furnishes the means of procuring the evidence, of a right already vested. Shepard v. Carriel, 19 Ill. 313.
    Testamentary capacity exists when the testator has an understanding of the nature of the business in which he is engaged, the value of his property, and is capable of managing his ordinary business affairs. Tested by this well known rule, the testamentary capacity of the testator is fully established. Roe v. Taylor, 45 Ill. 405.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Joseph Anderson died on the 28th of May, 1879, leaving • Patsy Anderson, his widow, since deceased, and William, John, Thomas, Joseph, and George Anderson, and Rebecca J. Irwin, his children, and William P. McKee, a grand-son, his only heirs at law. At the time of his death he left an instrument purporting to be his last will and testament. It was' found among his effects, sealed up in an envelope, indorsed “Joseph Anderson’s Will.” A short time after his death a meeting was appointed at William’s for opening and examining the will, to which all the heirs were invited but the daughter and grand-son. William, John and Thomas were present at the meeting. None of the other heirs attended. The instrument was opened and read by Robert Walker, who was subsequently appointed administrator of the estate, in the presence and hearing of the widow and three attending heirs. It purported to be the will of the deceased, and was witnessed by George D. Ramsey and S. S. Clark. By the provisions of the will the testator gave his entire estate to his wife for life, and divided the remainder, after charging John with $475, with interest at ten per cent-per annum from 1856, and William with $400, with like interest from 1866, equally among the heirs. This meeting occurred on the 5th of June, 1879. At the conclusion of it, Thomas, who was named as executor, took possession of the will and kept it till the 13th, when he returned it to William. On the 22d of the same month, Thomas went to see his mother, then at William’s, and told her he could not prohate the will on account of ill health, when she informed him she intended to burn it. He thereupon told her if she was determined to burn it, to call some one besides the family. She then started off towards the fire, and afterwards told him she had burned it. Under this state of facts the daughter, Mrs.. Irwin, filed the present bill, by which she seeks to establish the instrument in question as the will of her father, and to have the estate of the testator distributed according to its provisions.

The circuit court of Clay county found the equities with the complainant, and entered a decree in conformity with the prayer of the bill. From that decree Thomas, John and William alone appealed to the Appellate Court for the Fourth District, where said decree was affirmed, and we are now asked to review the judgment of that court.

The objection urged to the decree in this case is, that the evidence fails to show that the alleged will was in fact the will of the testator, or that it was executed in conformity with the statute, and also that the contents of the will are not sufficiently proven. The law is intended to be practical in its application to the varied transactions and circumstances which go to make up the affairs of life, and which are constantly giving rise to legal controversies that have to be settled in courts of justice. Indeed, most of the rules of evidence have been established with direct reference to this principle. Thus, it is a familiar rule that no evidence will be received of a fact which, from its very nature, shows there is better evidence of such fact, without first satisfactorily accounting for the absence of the higher order of evidence,— or, more briefly, the law requires in proof of a fact the best attainable evidence. The counterpart of this rule is, the law is always satisfied where the fact sought to be established has been proven by the best evidence of which, in its nature, it is susceptible. The latter rule we regard as important in its application to the circumstances of this case. The" instrument in controversy having been destroyed without the fault of the defendant in error, and with the connivance of a part, if not all, of plaintiffs in error who interposed any defence in the court below, and there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief altogether to require her to prove the very terms in which it was conceived. All that could reasonably be required of her under such circumstances, would be to show in general terms the disposition which the testator made of his property by the instrument,—that it purported to be his will, and was duly attested by the requisite number of witnesses. This was all fully and clearly shown.

It is worthy of note that the bill' is confessed as to all of the defendants who were not present at the meeting at William’s when the will was read by Walker, and that of those present at that meeting, Thomas, John and William alone appealed to the Appellate Court, and are the only ones prosecuting this writ of error. It is only necessary, therefore, to consider this case in its relation to them. Viewing it thus, it is difficult, in the light of all the circumstances before us, to repress the conviction that if they did not actually conspire with the mother to destroy the will, they at least connived at it. Their denial under oath, in their answers, of all personal knowledge of the will, in the light of the subsequently admitted fact that they were present and saw it taken from the envelope and heard its contents read, is so manifestly a mere play upon words at the expense of the real truth, that they stand in anything but an enviable light before the court. In view of all the facts, we think the maxim, omnia prasum witwr contra spoliatorem, may properly be applied to this case. In applying this maxim, the rule seems to be well .settled that where one deliberately destroys,' or purposely induces another to destroy, a written instrument of any kind, and the contents of such instrument subsequently become a matter of judicial inquiry between the spoliator and an innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right founded thereon. In such case slight evidence will suffice. Broom’s Legal Maxims, 576.

As to the objection there is no proof of the sanity of the testator, it is sufficient to say that in the absence of anything tending to show he was not of sound mind, we think, under the circumstances of this case, the dispositions of the will itself afford sufficient evidence of the testator’s sanity.

Upon the whole, we are fully satisfied with the decree in the case, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.