39 Ill. 14 | Ill. | 1865
delivered the opinion of the Court:
John M. Rotan died in 1837, leaving a widow, Cynthia, and four children, namely: John M. Rotan, Byron Rotan, Susan Jane and Nancy Rotan, all under age at that time. Their mother, Cynthia, married Willis Smith, and in 1847 he was appointed guardian of these children, and executed a bond with John Lynch, Charles M. Smith, Samuel Craig, Solomon Smith and John Hammers, securities, in the sum of twelve hundred dollars. Money belonging to these children came to the hands of Willis Smith as their guardian, amounting to four hundred and fifty-eight dollars and thirty cents. The guardian removed to Missouri with the children, and died there in 1850. In January, 1848, he made a settlement with the Probate Court of Marion county, in which he had allowances made him, and a balance appeared against him as guardian of about.three hundred and forty-four dollars. He left no property in this State, and made no other settlement. Susan Jane Rotan died in 1854, before she arrived at full age, unmarried and without descendants. Of the sureties in the bond, Samuel Craig and John Hammers were dead. The bill was filed against the surviving sureties for a discovery and an account, and to relieve against the settlement made by Willis Smith with the Probate Court, on the allegation that fraudulent claims were allowed thereat, and the prayer is for a decree for the amounts respectively due complainants.
The court, on the hearing, decreed in favor of the complainants, the sum of five hundred and ninety-seven dollars. From this decree the sureties prosecute this writ of error. •
Two principal errors are relied on, one going to the jurisdiction of the court and the other as to the parties.
Upon the first point, we are satisfied the bill will he for the purposes sought by it. It was said by this court, in the case of Grattan v. Grattan, 18 Ill. 171, that courts of equity have a. paramount jurisdiction in cases of administration and the settlement of estates, and may control courts of law in their action in the settlement and distribution of estates, and refer to 1 Story’s Eq. Jur. chap. 9, and Williams on Exrs. 1239, 1240. And it was also held that they had a similar and plenary jurisdiction over the persons and estates of infants, and would, in the exercise of that jurisdiction, cause to be done whatever might be necessary to preserve their estates, referring to 2 Story’s Eq. Jur. chap. 35, and Cowls v. Cowls, 3 Gilm. 435.
When the charge is, as in this bill, of a maladministration of the estate of these complainants when infants, a court of equity ought to have jurisdiction to inquire into it, and correct the errors, the more especially when it is alleged the proceedings by the guardian were in fraud of the rights of his wards.
The objection as to the parties, the omission to make the personal representatives of the deceased sureties, Craig and Hammers, parties defendant to the bill, is well taken.
In the case of the People for the use, etc. v. Lott and others, 27 Ill. 223, which was a bill filed by the distributees of the estate of P. Jarboe deceased, against the surviving administrator of the estate, the objection was made that the biE was defective for the want of proper parties. The representatives of the deceased sureties, having been omitted, as in this case, it was held that it was defective for that reason. We said the representatives of the deceased sureties have a direct interest in being heard in the adjustment of the administrator’s accounts, as they would be liable to contribute in their representative character, for their proportion of any sum found remaining in the hands of the administrators, or misapplied or wasted by them. With only a portion of the parties to the bond or their representatives before the court, a decree doing foil and complete justice to the several parties could not be rendered. The same rule must apply to the sureties on a guardian’s bond and their representatives, and for the same reasons.
This objection is in time, under the authority of the case of Prentice v. Kimball, 19 Ill. 322. There it was held, that it was the usual and better practice, where the want of proper-parties is apparent on the face of the bill, to take advantage of it by demurrer or motion to dismiss, or, if not patent, by plea or answer. Where the parties omitted are mere formal parties and not indispensable to a decision of the case upon its merits, it will be too late to make the objection at the hearing, but where the rights of parties not before the court are intimately connected with the matter in dispute, so that a final decree cannot be made without materially affecting their interests, the objection may be taken at the hearing, or on appeal or on error.
On the other point, we do not consider it was-necessary to take out letters of administration on the estate of Susan Jane Rotan, as she died in her minority at an age incapable in law of contracting debts, and her share, on her death, vested immediately in her next of kin entitled thereto. Cross v. Carey, 25 Ill. 564; Riley v. Loughrey, 22 id. 97.
As to the fraud charged in the settlement by Willis Smith with the court of probate, we see nothing in the record justifying the charge. There is nothing apparent there to destroy its credit. The sum of one hundred and five dollars alleged to have been chargeable against one of the heirs only, may have been chargeable against the entire fund. This was a question for that court. If the settlement with that court was fair, and we see nothing to impeach it, it cannot be overhauled here in the absence of any proof of fraud. The court had competent jurisdiction of the subject, and of the person, and however erroneous its decisions may be, they must stand until reversed by a superior court. We do not find in the record any data, by which we can adjust the accounts and claims set up, but must leave the adjustment to the parties themselves.
For the want of proper parties the decree is reversed, and the cause remanded with leave so to amend the bill as to make the representatives of the deceased sureties parties.
Decree reversed.
