29 Ill. App. 546 | Ill. App. Ct. | 1889
On November 20, 1882, appellant was appointed administrator with the will annexed, of the estate of Hannebutt, deceased, and Louisa Bolling, sole legatee, having instituted proceedings against him in the County Court of Randolph county to compel him, as administrator, to make a settlement of said estate, he appeared and filed his report July 13, 1887, and among other items therein claimed and asked to be allowed as a credit §747.99, paid by him out of assets of said estate in his hands to the payees of a promissory' note for §600, dated August 8, 1882, payable one year after date, with eight per cent, interest, by said Hannebutt and himself,, which had never been tiled, or allowed as a claim against said estate. The County Court, by its order, allowed but §248 of the sum he so claimed as a credit, and he thereupon took an appeal to the Circuit Court, and there demanded a trial by jury, which was refused, and upon the hearing the court allowed him §248 as a credit, and disallowed the balance of the §747.99 so claimed.
But two errors are assigned, viz.: The refusal of the court to allow a trial by jury, and its refusal’ to allow appellant as a credit the whole sum of $747.99 paid by him on said note.
The County Court and Circuit Court, on appeal, determine cases of this character without a jury. The question here involved was one of law, not of fact; the amount paid by appellant out of assets in his hands as administrator was not in dispute, but it was denied he had a legal right to be allowed the whole amount as a credit. The Circuit Court did not err in refusing the demand for a jury trial. Heward v. Slagle, 52 Ill. 316; Mack v. Woodruff, 87 Ill. 574.
The court did not err, either, in allowing no more than §248 as a credit upon appellant’s account as administrator. This sum was paid on said note within the period of two years next after he took out his letters of administration, at the expiration of which period said note, never having been exhibited as a claim against said estate, was barred except as by the statute; the balance of the' sum claimed and disallowed was paid after that period of two years had' elapsed and was then wrongfully paid by appellant out of assets of the estate in his hands; he should have resisted the payment of it and insisted on the bar of the statute as a defense if it had been presented as a claim after the two years had expired. McCoy v. Monow, 18 Ill. 524; Unknown Heirs of Langworthy v. Baker, Adm’r, 23 Ill. 491.
Had appellant p>aid the whole sum before the two years liad expired a different question would be presented; but he is not entitled under the facts proven to a credit for a larger sum than the court allowed him. Harris v. Millard, 17 Ill. App. 513; Same v. Same, 119 Ill. 195.
The order of the Circuit Court is affirmed.
Order affirmed.
