59 Ill. App. 236 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
This was a claim filed against the estate of Benjamin F. Bliss, deceased, by appellees, residuary legatees of Bussell Bliss, deceased.
Benjamin F. Bliss was the executor of the estate of Bussel Bliss, deceased, and had settled the entire estate and made report from time to time which had been approved by the Probate Court, but he had never been discharged by such court, and having died, appellants were commissioned as his executors. The appellees’ claim was for $1,500. This case was first tried in the Probate Court of La Salle County, and taken by appeal to the Circuit Court, and by their further appeal the case is brought to this court. Benjamin F. Bliss, executor, filed his inventory and three reports, and a supplemental report, and on or about the 14th day of December, 1890, departed this life. His sons, George F. Bliss and Bussell D. Bliss, were duly appointed executors of their father’s will, and George F. Bliss was appointed administrator de bonis non, with will annexed, of the estate of his grandfather, Bussell Bliss, deceased. Appellees filed their claim in the Probate Court of La Salle County, N ovember 3, 1892, for the sum of $1,532.32, against the said appellants, George F. Bliss and Bussell D. Bliss, executors of the last will and testament of Benjamin F. Bliss, deceased, in and by which they sought to recover for moneys not accounted for by Benjamin F. Bliss, as executor of the last will and testament of Bussell Bliss, deceased. The Probate Court allowed the claim. The cause was appealed to the Circuit Court, where it was tried by the court without the intervention of a jury, under the 42d section of the practice act, and by that court allowed, and judgment was rendered June 11, 1894, for the sum of $1,244.90, in favor of appellees.
Appellants have assigned errors in this court against the allowance of such claim, and appellees, cross-errors, because the allowance was not enough.
No written propositions of law were submitted to the court by either party while it was on trial. By the last report made by Benjamin F. Bliss, executor of Bussell Bliss, deceased, the executor showed a balance in his hands of $590.35, and asked for an order to distribute all of the said balance except $150, which he desired to retain for costs and expenses of administration. By a supplemental report of April 7, 1888, he showed that he had distributed $440.35, retaining the $150 ordered to be retained by the court. This last sum he had on hand when he died, and the administrator de bonis non accounted for that sum.
The appellees on the trial offered and read in evidence the inventory and the several reports of Benjamin F. Bliss, executor of the Bussell Bliss estate, which had been adjudicated upon by the Probate Court, and then over the objections of the defendants sought to contradict them for the purpose of establishing their claims against the appellants. This is one of the main errors relied upon by the appellants to reverse the judgment of the court below, claiming that the approval by the Probate Court of the above named reports, and the orders made in the Probate Court on the different settlements, were final and conclusive judgments, and so far are res adjudicata as to the appellees’ claim herein, because, as they claim, they are collateral judgments as to the relief sought in this case, and can not be surcharged.
We do not concur with the appellants in this contention. Benjamin F. Bliss had never been discharged, and had he lived he could not have been until the legatees had been paid, and they would have had the right to contest any application of his for a discharge and final settlement, and would have had a right to go through his annual reports, and have surcharged them if they were erroneous, and those reports and the approval thereof, would have only been prima facie evidence of their correctness.
The executor de bonis non could not do this because he is only administrator of the remaining estate, nor had he anything in his hands out of which to pay appellees.
Benjamin F. Bliss having died, if appellants had gone into chancery to attack these reports in a direct proceeding, which might have been done according to law, the reports would have stood only as prima facie evidence, and no question could have been raised as to the right of attacking them.
Instead of proceeding in chancery, or suit on his executor’s bond, the residuary legatees have filed their claim against the B. F. Bliss estate. Eaney v. Kirkpatrick, 14 Ill. 1. The Probate Court has equitable jurisdiction of claims, and can do what a court of equity might have done, that is, look through those accounts current, and surcharge them, allowing them to stand as prima facie correct. The approval of those reports in the Probate Court was ex parte, and so as against appellees do not have the force of final judgments.
Neither the Probate nor Circuit Court erred in correcting the accounts. Bond v. Lockwood, 33 Ill. 212; Long v. Thompson, 60 Ill. 27. The judgment rendered against the appellants by the Circuit Court is made up of a number of different items, and the evidence we regard sufficient to sustain the finding of the court. We will not undertake an examination in detail touching the different items, and we think the ruling of the court in excluding other items claimed by appellees is also sustained by the evidence. We therefore find against appellees on cross-errors assigned.
Finding no error in the record the judgment of the court below is affirmed.
