31 Ill. App. 394 | Ill. App. Ct. | 1889
Balthaser Schneider died testate in 1884, and by his will left a legacy to appellee of §1,000. Rudolph Graffenreid was appointed the executor of • the will of Schneider. There came into his possession as executor a certificate of deposit issued by the banking house of F. Byhiner & Co., of Highland, to Schneider, for $1,800, dated January 4, 1884, due three years after date with six per cent, interest.
In January, 1885, Graffenreid, as executor of Schneider, made an arrangement with appellee by which he transferred to her this certificate of deposit by indorsing it “ without recourse,” as executor, taking appellee’s receipt for the $1,000 legacy and receiving from her $800 in cash. In April, 1885, the firm of F. Byhiner & Co. failed and made an assignment. This suit was brought by appellee, against Budolph Graffenreid in his lifetime to recover back from him the $800 paid by her to him on the certificate. Originally the suit sought to recover from Graffenreid as executor of Schneider, but as it now stands the recovery is sought from Graffenreid personally, or rather from his estate.
Some of the questions now made on the record before us were decided by this court at its February term, 1887, in this same case. It was then held that the transfer of the certificate of deposit was a nullity, and that appellee took no title to the certificate. Graffenreid v. Kundert, 23 Ill. App. 440.
It was also held that appellee had no claim for the $800 paid by her, against the estate of Schneider; that the transaction between Graffenreid and appellee in no way bound the estate of Schneider, and that Graffenreid was acting in this matter entirely without authority of law as such executor, and consequently the only liability growing out of the transaction attached to Graffenreid personally. As Graffenreid had no right to receive the $800 which he got from appellee, it would seem to follow as a matter of law that appellee should have the right to recover it back.
Without entering into the details of the evidence, we think it sufficiently appears that appellee was induced to take the certificate and pay the $800 upon the assurance of Graffenreid that he would make it good to her.
The error assigned as to the improper admission of testimony is not well taken. It seems to us to have been sufficiently shown that the witness not only remembered what the deceased witness testified to on the point to which inquiry was directed, hut was able to state his evidence on this point quite fully. It was not necessary that she should be able to state that she remembered the substance of all his testimony in the case.
This may be limited to the testimony upon some particular subject about which the deceased witness testified. 1 Green-leaf on Ev., Sec. 165. Furthermore this testimony was proper to prove an admission of Graflienreid. That the admission was made on the witness stand does not require it to he proved otherwise than if it had been made elsewhere.
The proposition of law which the trial court refused to hold was properly refused in view of the former decision of this court. We adhere to the views in that opinion expressed.
The dividends paid to appellee by the assignee of the bank on this certificate belonged to the estate of Schneider, and appellee is responsible to that estate for them. The appellant has no right or interest whatever in them.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
