Emerick v. Hileman

71 Ill. App. 512, 1897 Ill. App. LEXIS 73

• Court: Appellate Court of Illinois
• Decided: September 20, 1897
• Status: Published

Opinion

Me. Justice Dibell

deliveeed the opinion of the Couet.

Ann B. Hileman died, intestate, March 25, 1893, leaving Lucy Cowen, Haomi Emerick and Ade O. Hileman, her children, as her sole heirs at law. The latter was appointed administrator and filed an inventory, and also filed a report July 7, 1894, and another January 4, 1895, both of which were approved by the court, and upon the approval of the second, an order ivas entered for the distribution of the bulk of the estate, which distribution was made and reported to the court February 8,1895, and approved. On July 2, 1895, the administrator filed a final report, showing he had fully administered said estate except as to certain worthless notes, and except $54.06 of cash on hand; and he asked that upon distribution thereof he be discharged. The heirs had notice of the filing of said report, and Eaomi Emerick filed objections, which, upon a hearing in the County Court, were overruled, and said final report approved. From that order Mrs. Emerick appealed to the Circuit Court, where there was a hearing and a like order, and she now appeals to this court.

The controversy relates to a note due from theadrninistrator to the deceased. In his inventory the administrator set down this note, gave its date and rate of interest, and stated. its amount at “ $3,900, less payments.” In his first report he charged himself as follows: “ 1893, August 1, to balance due on Ade O. Hileman note and mortgage inventoried, less all payments and indorsements, $1,281.” In said first report after the ordinary statement of the account in debits and credits the administrator embodied the following statement and petition: “ I, Ade O. Hileman, hereby also ask this honorable court, as administrator, to appoint some discreet person as administrator jpro tern, for the sole and only purpose of releasing of record in the Carroll county recorder’s office, a certain mortgage which secured the note of the said Ade O. Hileman, inventoried herein, which note has been fully paid by him, and he has charged himself as administrator with the balance of said note as appears in this report.” The report was supported by the usual affidavit of the administrator. Said report was filed July 7, 1894, and on July 10, 1894, there was a hearing as to said report and petition, and the court entered an order showing the presenting of the said report for approval, and that the cause came on for hearing upon the said report, the exhibits and proofs, and that the court found from the evidence that said report was a just and true statement of the condition of said estate, and the report was approved. The court in the order further found from the evidence that Ade O. Hileman was indebted to the said Ann B. Hileman in her lifetime; that said debt remained unpaid at her death; that he had executed a mortgage to secure said debt; that he had paid said debt and charged himself as administrator therewith. The order then appointed an administrator pro tern, for the sole and only purpose of discharging said mortgage of record.

Appellant urges that by the reference to the note in the inventory, the administrator scheduled it at $3,900, and is bound to account for that sum. This position can not be sustained. It was inventoried at “ $3,900, less payments,” which was clearly a claim by the administrator that there had been payments which reduced the note below $3,900. The heirs might have obtained from the County Court an order for a more perfect inventory, showing the precise amounts claimed to have been paid upon the note, but the inventory as it reads certainly is not an admission that the administrator was chargeable. with $3,900 on account of said note.

The administrator claimed that, beside the payments indorsed upon the back of the note, he had made certain further payments in the fall of 1892, to and on account of his mother in her lifetime, which should have been, but were not, indorsed on said note, to the amount of $972.60. Appellant argues that as the said payments are not indorsed, the administrator. should have tiled his claim against the estate, had a special administrator appointed to defend, as provided by section 72 of the administration act, and that until his claim for such payments was so presented, was heard and allowed, he could not credit himself with such payments; that the County Court in acting upon said first report had no power or jurisdiction to determine how much he owed the estate on said note and how much credit he was entitled to as against the estate; and that its order in that respect was null and void as to the heirs; and that when Mrs. Emerick filed objections to his final report it became necessary for him to assume the burden and bring proof anew to establish the correctness of each item of his report, and to prove how much he had paid his mother, on account of the said note.

We think this position of appellant can not be sustained. Section 60 of the administration act requires a claimant to swear that his claim is just and unpaid, after allowing all just credits. This administrator can not so swear, if, as he claims, these payments by him were payments upon the note. The balance was against him and the estate owed him nothing. The question how much was due from him to the estate on his note could not be settled by his filing a claim against the estate for all or any part of what he had paid on the note, whether indorsed or unindorsed. Payments to the deceased on a debt could not constitute claims to be put in judgment against her estate. Payment extinguishes the obligation of the debtor, but raises no obligation on the part of the creditor to refund the money so paid. Litch v. Clinch, 136 Ill. 410. The amount due from the administrator could have been determined by having the court appoint a special administrator to bring suit at law against Ade 0. Hileman in some court of record upon his note, or to file a bill against him to foreclose the mortgage, but this would have entailed unnecessary expense and would have removed the question from the determination of the County Court on its probate side, and, indeed, would have taken the whole matter away from the County Court, as there was more than $1,000 still due. The administrator was apparently ready and willing to pay all he owed. We can not hold the County Court had no power to determine the amount due from its administrator. It had jurisdiction of this administrator and of his inventories and reports, and power to require him to charge himself with whatever sums were legally chargeable against him. If any heir or interested creditor had shown to the County Court by petition or other proper mode that the note against the administrator was in fact for the principal sum of $5,000, we can not doubt the jurisdiction of the County Court to hear proofs and compel the administrator to amend his inventory. If the administrator, by petition or otherwise, had shown to the County Court that by mistake the principal of the note stated in the inventory at $3,900 ¿vas, in fact, only $3,000, the County Court would have had full authority to admit an amendment of the inventory. If, on July 7,1894, ■the administrator had presented to the court an amendment to the inventory as to this note, stating in detail each payment he claimed he had made thereon, in our opinion the County Court would have been acting within its ordinary probate jurisdiction in investigating said alleged payments, hearing the proofs, deciding the truth of the matter, and permitting a true amendment to be filed. It may be the County Court could have appointed an administrator fro tern, in such a case to protect the interests of the estate, but no statute requires it. Every time an administrator presents a report, it is possible some one might advantageously resist its approval in the interests of the heirs and creditors. In every such case the administrator may have failed to charge himself with all for which he is legally liable, or may have given himself improper credits, yet the law has not provided, for the appointment of an administrator pro tem. for such purposes. The county judge is expected to scrutinize such matters, ascertain the facts, and protect the interests of all. A rule which should require the appointment of an administrator pro tem. every time the regular administrator takes a step where he could unduly charge the estate, or unduly credit himself, would be a great burden upon the estate.

We think this matter could be properly presented to the court by the administrator’s report. It often happens that an administrator pays claims which he is satisfied are correct, without the formality of their being filed and allowed by the court. He becomes a creditor of the estate as to such claims so paid. In such case he is not confined exclusively to the remedy of filing such claims in his own name against the estate, having an administrator pro tem. appointed and a hearing and a judgment of allowance. The usual practice, we think, is for the administrator to ask credit for such claims in his annual report, and for the court to hear evidence upon the presentation of such report for approval, and determine whether the estate is liable therefor, and give or refuse credit to the administrator accordingly, the burden being upon the administrator to prove the liability of the estate for such claim. We understand the law to be that it is proper to credit an administrator in his accounts with payments made by him upon debts owing by his intestate which were never theretofore filed and allowed as claims against the estate, if the administrator proves said demands were legally due and owing,- and if there are sufficient assets to pay all debts of the class to which said claims belong. The People v. Phelps, 78 Ill. 147; Millard v. Harris, 119 Ill. 185; Hapke v. The People, 29 Ill. App. 546; Lewis v. Flowree, 42 Ill. App. 497. In Millard v. Harris, supra, the executor paid several thousand dollars of notes executed by his decedent, and which had never been presented and allowed as claims against the estate. The executor did not file them as claims, but in his report asked credit for their payment, and the Supremo Court held he was entitled to be so credited upon the proofs there made. A case might easily arise where an administrator having the note of the estate against a third party, the debtor would claim he had paid part of the note. If the administrator should satisfy himself of the truth of the statement and accept part payment and surrender the note, and in his report ask the approval of his action by the court, we think it not open to dispute that the court would have jurisdiction to hear the proof, determine the truth of the matter, and give the administrator proper credit. W e are not to be understood as approving the practice of administrators paying claims before they are presented and allowed by the court, but the question here argued involves the jurisdiction of the County Court to hear and determine the amount due in such cases when presented only by the administrator’s report.

In our opinion, therefore, the County Court had jurisdiction to hear and determine the matters presented by the administrator’s first report, and its adjudication as to the amount due and owing from Ade O. Hileman to the estate was prima, facie correct, and the heir assailing its correctness upon objections to the final report was bound to assume the burden of proof, and unless she showed by a preponderance of the evidence that the item in said first report, as to the amount due on said note, was incorrect, the judgment approving said report must stand. Bliss v. Seaman, 165 Ill. 422.

Appellant assumes the County Court must have based its order of July 10, 1894, upon the testimony of the administrator, who would be an incompetent witness to prove he had made payments to his mother in her lifetime. On the contrary, we must assume the County Court performed its duty, and heard only competent testimony, and that the fact that all said note had been paid to decedent except §1,281.90 was established by proper proof.

Appellant insists the administrator was improperly permitted by the Circuit Court to testify to payments made by him to his mother. He testified in his own behalf to certain events occurring after his mother’s death. As to these facts he was competent. On cross-examination appellant inquired as to the fact of his making these unindorsed payments to his mother, and proved by him most of the payments, making up the $972.60 claimed by him. Appellant can not set up as error the questions she herself put and the answers she elicited. Whether this was proper cross-examination, or whether she made the administrator her own witness upon that subject, is immaterial, for in either case she alone brought out the testimony of the administrator as to such payments, and made it competent. There was no evidence to contradict it and the fact was thus established.

Appellant and her husband testified that there were but three indorsements on the note when the securities of deceased were examined after the funeral by appellant and husband and by W. S. Co wen, the husband o'f Lucy Co wen, and by Ade 0. Hileman; and it is claimed that even if the indorsed payments to the amount of $972.60 were duly proven, still a large sum remained unaccounted for. The administrator also offered proof as to the indorsements on said note. This testimony became important because the administrator was unable to produce the note at the trial in the Circuit Court. The proofs show that when the first report was prepared the note was present, and several witnesses saw it; that it was taken into the County Court when the hearing was had upon said report, and that the administrator has never since seen it. Ho other proof was offered by either party as to the whereabouts of said note, and there is nothing to show that the administrator concealed it or is in any way responsible for its loss and non-production. The decided preponderance of the evidence is that there were five or more indorsements on the note, and not three only, as claimed by appellant, and that the charge of $1,281.90 in the first report was a correct statement of the amount then due on said note upon the basis of the indorsements appearing on its back and the $972.60 of unindorsed payments claimed by the administrafcor. Cowen swears that at the meeting of the heirs after the funeral, when the note was present, an estimate was made that, allowing Ade the unindorsed payments he claimed, he owed about $1,200 on the note. The proof shows that when the first report was prepared three persons made separate computations of the amount due, and after some discrepancies were adjusted, reached the same, result, $1,281.90. A slip of paper was put in evidence by appellant containing computations made by one of said witnesses at said time, apparently showing a much larger sum due, but we think it clear that said paper contained only a part of the computation made by that witness, and that the paper containing the rest of her computation could not be found, and indeed the slip put in evidence reached the same result as the others, namely $1,281.90, though not showing the entire process.

We should be better satisfied if the original note could have been produced in evidence with the indorsements written upon the back thereof, but we do not see that the evidence justifies us in holding the administrator responsible because of its loss, and we are not able to say that appellant sustained her objections by a preponderance of the evidence, but think on the other hand that the preponderance of the evidence is against her. The judgment of the Circuit Court will therefore be afiirmed.