214 Ill. 323 | Ill. | 1905
delivered the opinion of the court:
In the present case we pass no opinion upon the merits of the controversy, or upon any of the questions involved and discussed by counsel, as the writ of error must be dismissed because the judgment of the Branch Appellate Court, here sought to be reviewed, is not a final judgment.
Under section 90 of the Practice act a party to such a cause as the one at bar can only remove the same from the Appellate Court to the Supreme Court by appeal or writ of. error, “if the judgment of the Appellate Court be that the order, judgment or decree of the court below be affirmed, or if final judgment or decree be rendered therein in the Appellate Court, or if the judgment, order, or decree of the Appellate Court be such that no further proceedings can be had in the court below, except to carry into effect the mandate of the Appellate Court.” (3 Starr & Curt. Ann. Stat. —2d ed.—p. 3153). An examination of the judgment of the Appellate Court here shows that it fails to come within either of the three classes specified in the statute. It does not affirm the judgment of the circuit court, but partly affirms and partly reverses it, and remands the cause to the circuit court “with directions to that court to ascertain and allow jointly the fees of the three executors of the estate of Edward P. Griswold, deceased, for their services as such,” etc. The judgment of the Appellate Court is not final, nor can it be said that no proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court. When the case goes back to the circuit court, and in the event that one or more of the three executors do not waive and relinquish his or their right to compensation, it must be ascertained by the circuit court what fees should be jointly allowed to the three executors. To determine this matter may require a further hearing before the circuit court, and the rendition of a new order by that court as to the fees of the executors.
Section 133 of the Administration act provides that “executors and administrators shall be allowed as compensation for their services a sum not exceeding six percentum on the amount of personal estate, and not exceeding three percentum on the money arising from the sale of real estate, with such additional allowances for costs and charges in collecting and defending the claims of the estate and disposing of the same, as shall be reasonable.” (1 Starr & Curt. Ann. Stat.—2d ed.—p. 348). It is a matter peculiarly within the province of the probate judge to determine the proper amount of compensation to be allowed'to an administrator or executor for his services, provided the amount does not exceed the percentage specified in the statute. In Askezv v. Hudgens, 99 Ill. 468, we said (p. 470) : “And when such judge, in view of all circumstances, has exercised his judgment in the matter, and determined what is the proper compensation to be allowed to the administrator for his services, it should be a plain case of the wrongful exercise of judgment which would justify another court in increasing such allowance.”
By the order of the circuit court, from which an appeal was taken to the Appellate Court, defendant in error, Smith, as one of the executors of the estate, was allowed the sum of $2000.00, but the two other executors, the widow and the son, were not allowed anything. The judgment of the Appellate Court directs that the circuit court shall ascertain what fee shall be jointly allowed to all of the three executors, holding that the circuit court erred in making- a separate finding for fees in favor of defendant in error alone, who was but one of three executors. Upon consideration of the question what fee should be allowed the three executors, the circuit court might be inclined to change the allowance of $2000.00 to Smith alone. The receipts and disbursements, as shown .by the final account of the executors, amounted to $128,893.09. Six per cent of this amount would be $7733.58, one-third of which would amount to $2577.86. In'allowing Smith $2000.00, the circuit court allowed him more than $500.00 less than one-third of six per cent. It was evidently the judgment of the circuit court that the fee to be allowed should be less than six per cent upon the amount of the receipts and disbursements. But whether, upon a further consideration of the matter, the circuit court would allow each of the three executors $2000.00 does not appear, and cannot be made to appear until a further hearing is had. “When the compensation is made in the form of commissions on the value or amount of the estate, the rate of the commissions is not ordinarily affected by the number of the executors or administrators, but the amount which may be allowed will be divided among them, and, as a general rule, an equal division will be made. There is, however, no rule of law or equity, which declares that co-representatives, without regard to the time spent, responsibility assumed, or service rendered, are entitled to an equal pro rata share of the statutory fees.” (17 Am. & Eng. Ency. of Law, —2d ed.—p. 633).
It has been said that a judgment or decree is final when it terminates the litigation between the parties, so that, when affirmed by the reviewing court, the court below has nothing to do but to execute the judgment or decree it had already entered. It cannot be said here, in view of the action required to be taken by the circuit court when the case is remanded to it, that that court will have nothing to do but to execute and carry into effect the mandate of the Appellate Court. As a general rule, where the judgment of the circuit court is reversed and the cause is remanded, no appeal lies from the Appellate Court to the Supreme Court, as such judgment is in no sense final; and this is equally true where the judgment of the circuit courtis partly affirmed and partly reversed by the Appellate Court, as the statute has not authorized an appeal or writ of error where a decree is affirmed in'part or reversed in part. (Gade v. Forest Glen Brick Co. 158 Ill. 39, and cases there referred to; Callahan & Son v. Ball, 197 id. 318).
It is true that the judgment of the Appellate Court gives to the present plaintiffs in error an option to decide whether or not they will waive and relinquish their respective rights to the fees to be allowed, or to any part thereof; but the case must go back to the circuit court, because it is there only that the option so conferred can be exercised. (Gade v. Forest Glen Brick Co. supra.)
We are of the opinon that the judgment of the Appellate Court in this case is not such a judgment, under the provisions of section go of the Practice act, as warrants an appeal therefrom to this court, or a review thereof by writ of error issued from this court.
Accordingly, the present writ of error is dismissed.
Writ dismissed.