98 Ill. 332 | Ill. | 1881
delivered the opinion of the Court:
Anna J. Cassell, as surviving executrix of Joseph J. Cassell, deceased, filed an account for about eight thousand dollars in the county court of Morgan county, against the estate of Charles Cassell, her late co-executor, and asked that it might be allowed as a sixth class claim. It is claimed by her, that while he was acting with her as co-executor of Joseph Cassell’s estate, moneys belonging to the estate came into his hands, as such executor, to the amount of the claim, which have never been accounted for, either by him in his lifetime or by his legal representatives since his decease.
The claim was allowed by the county court, but on appeal was disallowed by the circuit court, and on appeal to the Appellate Court the judgment of the circuit court was reversed, and the case now comes here on a writ of error from the Appellate Court.
If the facts are as claimed by defendant in error it is clear beyond question that the account was properly allowed by the county court as a sixth ' class claim, for the moneys in his hands as executor were clearly held by him in trust for the benefit of creditors and distributees under the will, and never having accounted for them, the case is brought within the express provisions of the statute specifying what shall constitute sixth class claims.
Plaintiff in error, on the other hand, denies that the moneys unaccounted for by him came into his hands as executor of Joseph Cassell, deceased, but claims that the moneys in question were collected by him as rents of certain property belonging to his mother, two sisters, and himself, which they respectively acquired through the will of the said Joseph Cassell, and over which he had no power or control in his character of executor. If the facts are as'claimed by plaintiff in error, it is equally clear that the claim was improperly allowed against his estate as a sixth class claim.
So far as we are able to discover from the record before us this whole controversy turns upon a pure question of fact, namely, whether the moneys unaccounted for by Charles Cassell and upon which the claim sought to be allowed against his estate as a sixth class claim is based, belonged to Joseph Cassell’s estate, and as such came to the hands of Charles Cassell as his executor.
This question is one which the law has not authorized us to determine, and we could not undertake to do so Avithout disregarding the express provisions of the statute. Section 89 of the present Practice act, provides, “ The Supreme Court shall re-examine cases brought to it by appeal or writ of error as to questions of law only, and no assignment of error shall be allowed which shall call in question the determination of the inferior or Appellate Courts upon controverted questions of fact, in any case except those enumerated in the preceding section.” It is clear from this section of our statute that this court is not permitted to pass upon controverted facts, with certain exceptions not embracing this case.
Where, as in the present case, it appears from the record that there is a contrariety of evidence tending to establish two distinct and opposite states of fact, which Avould respectively require different and opposing judgments, as the one .or the other might prevail, and the judgment of the Appellate Court simply reverses the judgment of the trial court, Avithout reciting in its judgment or final order the facts as found by the Appellate Court, and no error of law is pre-sented by the record, such judgment will necessarily be erroneous. For in such case, if the Appellate Court finds the facts in the same way the lower court did, it should affirm its judgment, and not to do so would be error. But if, on the other hand, it finds the opposite state of facts, it should recite in its final order or judgment the facts thus found, so that this court could then say, as matter of law, whether the facts as found warranted the judgment rendered, and to not do so is error.
Under such circumstances, this court is unable to determine whether the error consists in not having affirmed the judgment of the lower court or in having neglected to recite in its judgment its findings with respect to the facts.
For the error indicated the judgment of the Appellate Court is reversed, and the cause remanded, with directions to the Appellate Court, if it shall find the facts as found by the circuit court, to affirm the judgment of that court, but that if it finds the facts different from the facts as found by that court, to then render such judgment, upon the facts thus found, as the law shall require, and recite the same-in its final judgment, as directed by the statute.
Judgment reversed.