Mr. Justice Waterman
delivered the opinion of the court.
Upon the trial it appeared that William Rohn, Jr., being aware that he was about to die, consulted with Mr. Louis Heile, Mr. Adolph Heile and his father, concerning a proper and judicious disposition of his affairs; that Mr. William Rohn, Jr., objected much to having his estate probated, saying that it would make a great deal of trouble, especially with a partnership which he then had with one George Wildner; that Mrs. Ida Rohn was present at this conversation in which Mr. Rohn told Mr. Adolph Heile that Wildner, his partner, was willing to buy him out at the sum of $8,500, which had substantially been agreed upon between them; that Mr. Adolph Heile advised them that it would be a good thing for him to dispose of his interest in the business during Ms lifetime. William Bohn, Jr., at that time said he wanted to leave all his effects in the care of his father, in whom he had perfect confidence; that at that time the amount Hr. William Bohn would have in case he made the contemplated sale was figured out and amounted to $11,000. As to this he said: “Mv wife is the next to me and I want to secure to her $5,000 of that and to each of my two children $3,000;” that within a week or two after the death of William Bohn, Jr.-, William Bohn, his father, Ida Bohn and a friend of hers by the name of Schultz, came to Mr. Heile’s office and Ida Bohn said that her husband was dead and it would be better to get things into proper shape in accordance with the wish of her husband, expressed by him when he was last at Mr. Heile’s office, and she wanted Mr. Heile to draw up some kind of a document to show that she was to have $5,000, and each of the children $3,000, of her husband’s estate. Whereupon Mr. Heile prepared a declaration of trust from memoranda submitted to him at that time. This declaration of trust was afterward signed by William Bohn, the father of William Bohn, Jr. This declaration acknowledges that he has received from his son, William Bohn, Jr., deceased, $11,000, in notes partly secured and partly unsecured, and that he holds the same in trust for Ida Bohn and her two children, $5,000 for her and $3,000 for each of the children; that be agrees to collect interest on all and pay same to Ida Bohn during the minority of the children and agrees to turn over to Ida Bohn in notes her $5,000 upon.demand, and to turnover $3,000 to each of the children when they become of age, and agrees to collect said notes and to re-invest the proceeds according to his best judgment, and directs his administrators, executors and heirs to turn over , what securities he may have at the time of his death for said minors to some other person to be named as trustee by Ida Bohn.
Upon this declaration of trust there is indorsed as follows :
“ I have this day received as administratrix of the estate of William Bohn, deceased, for the property described herein, the amount of $9,500 in cash and all interest thereon to date.
Chicago, August 13, 1897.
Ida Bohn,
Individually and as administratrix of the estate of William Bohn, Jr., deceased.”
It also appeared upon the trial that some weeks prior to William Bohn, Jr’s., death, it had been agreed between him and his partner, Wildner, that a sale of his partnership interest should be made to Wildner for $8,500; that a bill of sale of such partnership interest had been drawn up, signed by Wm. Bohn, Jr., and left with his wife, who after his death gave it to William Bohn for delivery to Wildner, which delivery William Bohn made; that Wildner, to make up the $8,500 agreed to be paid by him, as had been arranged before the death of William Bohn, Jr., gave two $800 mortgages and $400 in cash, making $2,000, which Wildner, without assistance, was able to raise; that Wildner’s mother loaned him $2,000, receiving his note therefor, and Budolph Bohn, a brother of William Bohn, also loaned Wildner $2,000, taking his note therefor, so that Wildner was able, as he did after the death of William Bohn, Jr., and in accordance with the agreement made with him, to turn over in payment, mortgages amounting to $1,600, and $4,400 in cash. For the balance he gave two notes, one for $1,000 maturing in one year and one for $1,500 maturing in three years. These were judgment notes, dated October 17,1893, payable to the order of Mrs. William Bohn, Jr., with interest at seven per cent per annum.
Wildner, about 1896, came to be owing “Budolph Bohn a good deal of money, and to secure the same gave to Budolph Bohn a chattel mortgage upon his stock of goods and material, for $3,000.” The $1,000 note given by Wildner, which matured October 17, 1895, was paid. Wildner not having paid the $2,000 he owed to his mother, she took judgment against him therefor, whereupon Budolph Bohn paid his mother the amount of the same and took Wildner’s property upon his chattel mortgage.
Wildner has, since the foreclosure of the chattel mortgage, been, it appeared, financially irresponsible, working for a salary of $50 per month.
Some time after the entry of judgment against Wildner and the foreclosure of the chattel mortgage given by him, letters of administration were issued to Ida Eohn upon the estate of her husband, William Eohn, Jr., and this suit was begun January 19, 1899.
Appellant urges that appellee is estopped from insisting that he is an executor de son tort because that all he did in the way of taking possession of any of the estate left by his son was at her request. If this suit were prosecuted by Ida Eohn in her own right, such insistence might be well taken.
The suit is not by Ida Eohn, for her own benefit, but entirely in a representative capacity, as the person appointed by the Probate Court to administer upon the estate of her deceased husband; and as such representative she is not estopped by anything that she may have done as an individual, unless her appointment relates back to the time of the death of William Eohn, Jr., and validated all acts by her done prior to her appointment, that were in the interest of and for the benefit of the estate of which she is now administratrix.
It appeared upon the trial that the note for $1,500, out of which this suit has grown, as indeed all of the money, notes and mortgages given by Wildner upon his purchase of the partnership interest, were not given until after the death of William Eohn, Jr., although in pursuance of the agreement previously made and in accordance with the bill of sale, signed by William Eohn, Jr., left with his wife, Ida, and by her after his death handed to William Eohn for delivery to Wildner upon reception from him of the notes, money and mortgages, which he was to and did give therefor.
The situation existing at the time of the death of William Eohn, Jr., was that while an agreement of sale had been made, it had not been carried out. Eone of the written documents to be transferred had actually been delivered. Wildner, as the surviving partner, a person of very limited means, was by law entitled to administer upon the partnership effects. The position was one in which it is evident it "was for the interest of the estate of William Rohn, Jr., that the contemplated -sale should be carried out as speedily as possible.
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Mr. Justice Waterman
delivered the opinion of the court.
Upon the trial it appeared that William Rohn, Jr., being aware that he was about to die, consulted with Mr. Louis Heile, Mr. Adolph Heile and his father, concerning a proper and judicious disposition of his affairs; that Mr. William Rohn, Jr., objected much to having his estate probated, saying that it would make a great deal of trouble, especially with a partnership which he then had with one George Wildner; that Mrs. Ida Rohn was present at this conversation in which Mr. Rohn told Mr. Adolph Heile that Wildner, his partner, was willing to buy him out at the sum of $8,500, which had substantially been agreed upon between them; that Mr. Adolph Heile advised them that it would be a good thing for him to dispose of his interest in the business during Ms lifetime. William Bohn, Jr., at that time said he wanted to leave all his effects in the care of his father, in whom he had perfect confidence; that at that time the amount Hr. William Bohn would have in case he made the contemplated sale was figured out and amounted to $11,000. As to this he said: “Mv wife is the next to me and I want to secure to her $5,000 of that and to each of my two children $3,000;” that within a week or two after the death of William Bohn, Jr.-, William Bohn, his father, Ida Bohn and a friend of hers by the name of Schultz, came to Mr. Heile’s office and Ida Bohn said that her husband was dead and it would be better to get things into proper shape in accordance with the wish of her husband, expressed by him when he was last at Mr. Heile’s office, and she wanted Mr. Heile to draw up some kind of a document to show that she was to have $5,000, and each of the children $3,000, of her husband’s estate. Whereupon Mr. Heile prepared a declaration of trust from memoranda submitted to him at that time. This declaration of trust was afterward signed by William Bohn, the father of William Bohn, Jr. This declaration acknowledges that he has received from his son, William Bohn, Jr., deceased, $11,000, in notes partly secured and partly unsecured, and that he holds the same in trust for Ida Bohn and her two children, $5,000 for her and $3,000 for each of the children; that be agrees to collect interest on all and pay same to Ida Bohn during the minority of the children and agrees to turn over to Ida Bohn in notes her $5,000 upon.demand, and to turnover $3,000 to each of the children when they become of age, and agrees to collect said notes and to re-invest the proceeds according to his best judgment, and directs his administrators, executors and heirs to turn over , what securities he may have at the time of his death for said minors to some other person to be named as trustee by Ida Bohn.
Upon this declaration of trust there is indorsed as follows :
“ I have this day received as administratrix of the estate of William Bohn, deceased, for the property described herein, the amount of $9,500 in cash and all interest thereon to date.
Chicago, August 13, 1897.
Ida Bohn,
Individually and as administratrix of the estate of William Bohn, Jr., deceased.”
It also appeared upon the trial that some weeks prior to William Bohn, Jr’s., death, it had been agreed between him and his partner, Wildner, that a sale of his partnership interest should be made to Wildner for $8,500; that a bill of sale of such partnership interest had been drawn up, signed by Wm. Bohn, Jr., and left with his wife, who after his death gave it to William Bohn for delivery to Wildner, which delivery William Bohn made; that Wildner, to make up the $8,500 agreed to be paid by him, as had been arranged before the death of William Bohn, Jr., gave two $800 mortgages and $400 in cash, making $2,000, which Wildner, without assistance, was able to raise; that Wildner’s mother loaned him $2,000, receiving his note therefor, and Budolph Bohn, a brother of William Bohn, also loaned Wildner $2,000, taking his note therefor, so that Wildner was able, as he did after the death of William Bohn, Jr., and in accordance with the agreement made with him, to turn over in payment, mortgages amounting to $1,600, and $4,400 in cash. For the balance he gave two notes, one for $1,000 maturing in one year and one for $1,500 maturing in three years. These were judgment notes, dated October 17,1893, payable to the order of Mrs. William Bohn, Jr., with interest at seven per cent per annum.
Wildner, about 1896, came to be owing “Budolph Bohn a good deal of money, and to secure the same gave to Budolph Bohn a chattel mortgage upon his stock of goods and material, for $3,000.” The $1,000 note given by Wildner, which matured October 17, 1895, was paid. Wildner not having paid the $2,000 he owed to his mother, she took judgment against him therefor, whereupon Budolph Bohn paid his mother the amount of the same and took Wildner’s property upon his chattel mortgage.
Wildner has, since the foreclosure of the chattel mortgage, been, it appeared, financially irresponsible, working for a salary of $50 per month.
Some time after the entry of judgment against Wildner and the foreclosure of the chattel mortgage given by him, letters of administration were issued to Ida Eohn upon the estate of her husband, William Eohn, Jr., and this suit was begun January 19, 1899.
Appellant urges that appellee is estopped from insisting that he is an executor de son tort because that all he did in the way of taking possession of any of the estate left by his son was at her request. If this suit were prosecuted by Ida Eohn in her own right, such insistence might be well taken.
The suit is not by Ida Eohn, for her own benefit, but entirely in a representative capacity, as the person appointed by the Probate Court to administer upon the estate of her deceased husband; and as such representative she is not estopped by anything that she may have done as an individual, unless her appointment relates back to the time of the death of William Eohn, Jr., and validated all acts by her done prior to her appointment, that were in the interest of and for the benefit of the estate of which she is now administratrix.
It appeared upon the trial that the note for $1,500, out of which this suit has grown, as indeed all of the money, notes and mortgages given by Wildner upon his purchase of the partnership interest, were not given until after the death of William Eohn, Jr., although in pursuance of the agreement previously made and in accordance with the bill of sale, signed by William Eohn, Jr., left with his wife, Ida, and by her after his death handed to William Eohn for delivery to Wildner upon reception from him of the notes, money and mortgages, which he was to and did give therefor.
The situation existing at the time of the death of William Eohn, Jr., was that while an agreement of sale had been made, it had not been carried out. Eone of the written documents to be transferred had actually been delivered. Wildner, as the surviving partner, a person of very limited means, was by law entitled to administer upon the partnership effects. The position was one in which it is evident it "was for the interest of the estate of William Rohn, Jr., that the contemplated -sale should be carried out as speedily as possible.
That an administration of the partnership assets by Wildner, or any other person, would have realized for the estate of William Rohn, Jr., §8,500, there is no evidence and is quite improbable. What, therefore. Ida Rohn did in the way of handing over the bill of sale, signed by her husband, although an intermeddling with the estate and constituting her an executrix de son tort, was undoubtedly in the interest of and for the'benefit of the estate. What she did in the way of having a declaration of trust drawn up and signed by William Rohn was ineffectual to determine the interest of her children or her own in said estate. The law fixed that and no act of either appellant or appellee could change the disposition which the law made.
In Riley v. Loughrey, Administrator, 22 Ill. 99, it is said substantially :
“Whatever is honestly done by one acting in the character of an executor do son tort and not contrary to law, is binding between the parties. A settlement made in good faith with such an executor is valid.”
And in Camp v. Elliott & Brewster, 38 Ill. App. 337, the court sa3rs :
“The acts of Camp before he was appointed administrator would be the acts of an executor do son tort and would be held good in so far as they would have been had he at the time been actually the administrator of the estate.”
In taking from Wildner the notes, money and mortgages given b3T him, appellant acted by the direction of appellee, who was then entitled to take out letters, and to whom letters of administration were, some three years thereafter, issued.
In Vaughan v. Browne, Str. 1106, the Court of King’s Bench laid down the doctrine that a person who is sued as an executor do son tort can not defeat the suit by taking out letters of administration, pending the suit, because such suit was well commenced, yet such an administration will legitimate all acts db initio. „ A report of this case will'be found in Andrews, 328, and it was approved in Curtis v. Vernon, 3 Term Rep. 587.
This doctrine is also approved in Rattoon v. Overacker, Executor, 8 Johnson, 127; also in Shillaber v. Wyman, 15 Mass. 322, and in Magner v. Ryan et al., 19 Mo. 197.
One who acts as the mere servant of another who is an executor de son tort, can not be held. If appellant had done nothing more than to follow the directions of Ida Rohn when she assumed to intermeddle with the property of the estate, we are not prepared to hold that a. recovery could have been had against him in the present action by her as administratrix. The evidence shows that he did niore. He and she, doubtless with the best intentions, but in disregard of the statutory law of this State, assumed to create a trust over the effects of the estate, and he thereby undertook to collect the notes so intrusted to him. Such being the case, we think that as the court below instructed, he was bound to exercise such diligence in regard to the note for $1,500, as prudent men ordinarily bestow upon their own affairs. It was a judgment note, and notwithstanding the chattel mortgage then existing upon the goods of Wildner, he might have had judgment entered thereon.
It may well be said, as is urged, that the note being payable to Ida Rohn, it was as much her duty to see that proper steps were taken to enforce its payment as his, and that, save by her consent, no judgment could be obtained thereon.
We are not, however, in this case dealing with the negligence of Ida Rohn, but rather with the rights of the estate of William Rohn, Jr., and the conduct of appellant.
We think the evidence such that the jury had a right to find that appellant did not, in respect to the collection of this note, exercise such diligence as prudent men ordinarily bestow upon their affairs, and this, although, when it became due, Wildner asked him to wait until after the election and he would try and get a partner and make a stock company and would see that the note was protected.
The judgment of the Superior Court is affirmed.
Mr. Presiding Justice Freeman dissenting.