Stevens v. Catlin

Appellate Court of Illinois

Stevens v. Catlin

44 Ill. App. 114, 1891 Ill. App. LEXIS 607

DecidedMarch 4, 1892

StatusPublished

This text of 44 Ill. App. 114 (Stevens v. Catlin) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stevens v. Catlin, 44 Ill. App. 114, 1891 Ill. App. LEXIS 607 (Ill. Ct. App. 1892).

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Opinion

Waterman, P. J.

The question presented in this case is whether, in the case of a promissory note signed by four parties, reading, “We promise to pay,” upon the death of one of the joint makers, a joint action can be maintained against the three survivors. It is contended by appellants that “ by operation of law the death of one joint obligor eo instcmti destroys a joint obligation and a joint recovery can not be sustained.” IVe have been referred to no authority which sustains the contention of appellants. The rule as to suits against joint contractors, one of whom is dead, is that the suit should be against the survivors only and that the administrator of the deceased promisor should not be joined. Ballance v. Samuel, 3 Scam. 380; Powell et al. v. Kettelle, 1 Gilm. 491.

In respect to joint and several" contract, the estate of the deceased obligor is not discharged, and his administrator may be sued at law, but he should not be -joined with the survivors because the judgment against the survivors is de bonis propriis, while against the administrator it is de bonis testatoris. Ballance v. Samuel, supra. The liability to be sued on a joint contract passes on the death of one obligor to the survivors, and adheres on each subsequent death to the remaining survivor or survivors. Dicey on Parties to Actions, 238.

The reason for not bringing suit against Campbell, the deceased maker, was set forth in the declaration, and in this respect the case differs from Cummings v. The People, 50 Ill. 132.

The action was properly brought and the judgment of the Superior Court will be affirmed.

Judgment affirmed.

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Waterman, P. J.

The question presented in this case is whether, in the case of a promissory note signed by four parties, reading, “We promise to pay,” upon the death of one of the joint makers, a joint action can be maintained against the three survivors. It is contended by appellants that “ by operation of law the death of one joint obligor eo instcmti destroys a joint obligation and a joint recovery can not be sustained.” IVe have been referred to no authority which sustains the contention of appellants. The rule as to suits against joint contractors, one of whom is dead, is that the suit should be against the survivors only and that the administrator of the deceased promisor should not be joined. Ballance v. Samuel, 3 Scam. 380; Powell et al. v. Kettelle, 1 Gilm. 491.

In respect to joint and several" contract, the estate of the deceased obligor is not discharged, and his administrator may be sued at law, but he should not be -joined with the survivors because the judgment against the survivors is de bonis propriis, while against the administrator it is de bonis testatoris. Ballance v. Samuel, supra. The liability to be sued on a joint contract passes on the death of one obligor to the survivors, and adheres on each subsequent death to the remaining survivor or survivors. Dicey on Parties to Actions, 238.

The reason for not bringing suit against Campbell, the deceased maker, was set forth in the declaration, and in this respect the case differs from Cummings v. The People, 50 Ill. 132.

The action was properly brought and the judgment of the Superior Court will be affirmed.

Judgment affirmed.

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44 Ill. App. 114, 1891 Ill. App. LEXIS 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-catlin-illappct-1892.

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