136 Ill. App. 161 | Ill. App. Ct. | 1907
delivered the opinion of the court.
The pivotal question in this cause is: Was the appointment of Casazza administrator by the Probate Court of Cook county void or only voidable?
The ground on which the excluded evidence was rejected and the jury prevented from taking it into account, was that the appointment was void; that Casazza while holding.it was as truly a stranger to the estate and claim now sued on as any man in the street who might have assumed to act.
If the appointment were only voidable, it is plain that the rulings on the admission of the offered evidence were erroneous. A question is indeed raised in argument whether the release or acquittance by an administrator whose appointment was voidable, and who was afterward superseded by another administrator who brought the suit, could be in any event shown under the general issue, but we see no merit in the contention that it could not. The law allows, in an action on the case, the proof of a release or acquittance by the plaintiff before the action was commenced.. The plaintiff in this action acted in a representative capacity. If he had a predecessor in office, either de facto or de jure, whose acts were under the law valid, the release of that predecessor, if made in good faith while he was acting, was competent and material in evidence. It could be shown under the general issue, and in the absence of other controlling reasons to the contrary would be a protection to the defendant. People v. Cole, 84 Ill., 327; C., B. & Q. R. R. Co. v. Gould, 64 Iowa, 343; Bradley v. Missouri Pacific Ry. Co., 51 Neb., 653.
We have not in this case any doubt that the evidence offered tended to prove that Casazza was the predecessor in office of Wolf rum. It may be conceded, for the sake of argument, that there is nothing in the evidence in contradiction of the presumption raised by the revocation of the letters, that his original appointment was erroneous, although there is at least a serious question raised by the appeal and the subsequent order of the Circuit Court on the motion of appellant dismissing “the suit.” The “suit” could hardly be anything but the petition to revoke the letters. That petition being dismissed, in what situation were the letters to Casazza left, and who was afterwards the administrator of the estate % It is needless, however, to discuss this question, for in any event the appointment erroneously of Casazza and its subsequent revocation, if it was merely voidable, left all Casazza’s acts, done in good faith and within the powers granted by his appointment, valid. The appellee in argument practically concedes this, but insists that the appointment was void. We do not agree with him. Administration granted on the estate of a live man would be absolutely void, but letters of administration granted by a Probate Court of Illinois for one county in the State, based on a petition which contained all necessary allegations to justify the appointment, including the residence of the deceased in the given county, and on an order of the Probate Court finding that all the allegations of the petition are true, are not void, although the petition in its allegations and the order in its finding concerning the residence of the deceased in the given county, are incorrect and the order therefore erroneous and revocable on a proper showing.
We hold with Judge Pleasants in Wackerle v. People, 65 Ill. App., 423, speaking for the Appellate Court in the Third District: “County” (or Probate) “courts have jurisdiction over estates in general. Whether a particular county court has jurisdiction of a particular estate is a question of fact to be determined by that court, and when once determined the judgment is conclusive and cannot be questioned in a collateral proceeding.”
This also is the reasonable doctrine we think held in Bostwick v. Skinner, 80 Ill., 147; Smith v. Smith, 168 Ill., 488, and Salomon v. The People, 191 Ill., 290. And so also in other States: Bolton v. Schriever, 135 N. Y., 65; Eller v. Richardson, 89 Tenn., 575; Irwin v. Scriber, 18 Cal., 504; Kling v. Connell, 105 Ala., 595.
We do not deem it necessary to discuss the other assignments of error. For the errors indicated the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
