Scott v. Scott

61 Ill. App. 103, 1895 Ill. App. LEXIS 701

• Court: Appellate Court of Illinois
• Decided: November 15, 1895
• Status: Published

Opinion

Mr. Justice Boggs

delivered the opinion of the Court.

We think the court ruled correctly in sustaining the demurrer.

The agreement relied upon as a defense to the note could not be so availed of in law.

It is not in the power of executors to so contract away the assets of an estate, and an agreement so to do would present no lawful defense to an action at law brought to collect the assets.

In exceptional cases, as, if it appeared the estate was solvent, and persons interested as legatees, devisees or heirs, had joined in the execution of and become bound by the contract, perhaps the equities of the maker of the note might demand equitable interference, and give jurisdiction to a court of chancery.

In the case at bar, the time allowed creditors in which to file their claims against the estate had not elapsed when the bill was filed, and the bill contains no allegation as to the solvency of the estate.

Nor is it alleged, with sufficient degree of certainty, if alleged at all, that the legatees were parties to the agreement.

Construing the bill, as we should, most strongly against the pleader, it is to be conceded that creditors may be interested in the collection of the note, and that the legatees did not join in, and are not bound by, the alleged agreement. Moreover, if the agreement presented a defense to the action, it could be made at law, and there would be no reason to resort to chancery.

The agreement sought to be established was not reduced to writing.

It rested in parol.

The instrument executed by the complainant to A. B.

Scott, whereby he conveyed his interest in the estate, was not executed as constituting the agreement, but only in part performance of it.

Its execution could not operate to exclude parol testimony as to the terms and conditions of the contract. Bank v. Gillett, 13 Ill. App. 369; Lacy v. Gard et al., lately decided in this court and not yet reported; 7 Amer. & Eng. Ency. of Law, 91 and 92. Affirmed.