Supreme Lodge Knights & Ladies of Honor v. Portingall

64 Ill. App. 283, 1896 Ill. App. LEXIS 899

• Court: Appellate Court of Illinois
• Decided: May 14, 1896
• Status: Published

Opinion

Mr. Presiding Justice Gary

delivered the opinion oe the Court.

The declaration is assumpsit upon a beneficiary certificate for $1,000 issued to Julia Portingall January 4, 1888, “ which sum shall at her death be paid to children John S. Portingall, Julia Portingall, Geo. W. Portingall.”

Julia, the mother, died October 26, 1889. John S. died August 28, 1892. Ho money has been paid.

The only question is, may these appellants recover $1,000 ?

When the mother died a right of action accrued to the three children, on which the three could only sue jointly; neither alone for a third. Am. Cent. R. R. v. Miles, 52 Ill. 174.

And one dying, the action must be in the names of the survivors, whether the ultimate right to the money be with them or not. An executor or administrator of the deceased can not be joined; nor sue alone for the share of the deceased. 1 Oh. PL, 11th Ed., 1828.

Whether the appellees have had a guardian to whom the money might have been safely paid, does not appear on this record, and no question can be made here on the assumption that there was no such guardian. By what arithmetic the counsel has found that the time from October 28, 1889, to January 25, 1896, was five years, one month, seven days, does not appear; in fact, as the contract was not affected by the statute of 1891 reducing the rate of interest from six per cent to five (Fireman’s Fund Ins. Co. v. Western Refrigerating Co., 58 Ill. App. 329) the $310 allowed as interest is quite tod little; but no cross-errors are assigned, nor did the appellees take any step in the Circuit Court to correct the error. The judgment is affirmed.