31 N.E.2d 786 | Ill. | 1940
August 31, 1929, the county court of Hancock county appointed Ellis E. Cox conservator of the estate of Mary E. Babcook, a distracted person. He filed his bond, received his letters and took over her property. Later, he invested $2057.44 in one of several notes secured by a first mortgage, and $2851.05 in a time-deposit certificate in a bank. These acts were never approved by the county court. Mary Babcook died testate, February 9, 1935. On June 6, of that year, Cox filed his final report in the county court in which he claimed credit for both items, commissions as conservator and for attorneys' fees. As executor of Mary E. Babcook's will, Earl B. Rice filed objections; they were sustained, in part, and Cox appealed to the circuit court of that county. On a trial de novo, that court sustained objections to the mortgage investment, to the certificate of deposit, to the conservator's commissions and to one-half the attorneys' fees. It ordered Cox to pay the executor, Rice, *359 $2057.44 "the amount invested in the mortgage note," $2851.05 "the amount of the certificate of deposit in the Dime Savings Bank," $100 which was half the attorneys' fees, and $4.40 "being the balance of moneys on hand as shown by his supplemental report." Cox paid $4.40 and, after this suit was filed, the $100. The court found that the mortgage had been foreclosed, the redemption period had expired and the property was being held in trust for all the noteholders by Fritz J. Reu. Cox was ordered to convey his interest in the mortgaged premises to Rice and, when this was done, he was to be allowed a credit of $1193.75. Cox made this transfer. There was no appeal from the circuit court's order.
On March 1, 1938, Rice served a written notice on Cox and demanded that Cox pay over all moneys which had come into his hands, as conservator, in accordance with the circuit court's order. Cox did not comply, and Rice petitioned that court for a rule on Cox to show why he should not be held in contempt. November 18, 1938, that court ordered Cox to appear and show cause. He answered and claimed that he did not have any of the property or money of the estate of his ward in his hands; that he had no personal estate of his own with which to pay the sums charged against him and that he could not be imprisoned for contempt because of section 12 of article 2 of our constitution. After a hearing, the court dismissed the petition and the court assessed the costs equally against the parties. Because a construction of section 12 of article 2 of the Illinois constitution is involved, Rice has appealed to this court.
Rice contends that punishment for contempt is authorized by sections 9 and 35 of the act relating to incompetents, etc. (Ill. Rev. Stat. 1939, chap. 86, pars. 9 and 35.) If the ward dies and an administrator is appointed section 9 provides that the conservator is "to deliver up to his successor all the goods, chattels, moneys, title papers and other *360 effects belonging to such deceased ward in like manner and subject to the same penalties as are provided in section 35." Section 35, in part, provides: "The court shall have power to compel the conservator * * * to deliver up to such successor all the goods, chattels, moneys, title papers and other effects in his custody or control belonging to the ward; and upon failure to so deliver the same, to commit the person offending to jail until he shall comply with the order of the court."
Cox argues that the sections do not apply to him because, when he answered the petition, he did not have actual possession of the money of the trust estate belonging to his ward, and it is, therefore, not in his "custody or control." His position also is that the statute should not be construed so broadly as to authorize a punishment for contempt in cases where the property is no longer in his actual possession and has not been wilfully and fraudulently disposed of, and where failure to comply with the order directing payment is due to financial inability to pay. He maintains that, in view of our holding in Bruner v. Wolford,
Rice insists that although Cox does not now have actual possession of the money, it had been in his custody and control, he had illegally expended it, and, in contemplation of law, it remained in Cox's custody and control.
It is not disputed that a conservator who fails to obey an order to deliver up money or effects in his custody and control can be punished for contempt. On the other hand, where one has never had actual possession or control over the assets of his ward or of the res of a trust, this court has held he cannot be so punished. (Tudor v. Firebaugh,
The next question is whether or not Cox is protected by section 12 of article 2 of our constitution. It provides: "No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud." The 1818 and 1848 constitutions of Illinois contained this same provision. (Mesirow v. Mesirow,
The order which dismissed Rice's petition is reversed, and this cause is remanded for such further proceedings as are consistent with the views above expressed.
Reversed and remanded, with directions.
Mr. JUSTICE SHAW, dissenting.
Mr. JUSTICE MURPHY took no part in this decision. *363