67 Ill. App. 659 | Ill. App. Ct. | 1896
delivered the opinion of the Court.
We do not understand that the truth of the matters set forth in the statement of the claimant is disputed, save the concluding statement as to there being due, etc.
It is urged by the appellant that the defalcation of Jay J. Bead occurred prior to the execution of the bond in question, and that therefore the sureties upon said bond are not liable.
Bot only the recitals in the bond, but the condition thereof, plainly show that the bond was intended to be security for all moneys and property which then was in possession of the assignee, or might come into his possession, and that the assignee, Jay J. Bead, should in all things discharge his duties as assignee, pursuant to any and all orders which the County Court of Cook County had theretofore entered or might thereafter enter, and obey and carry out all orders of said County Court which had been theretofore or might thereafter be made.
It is therefore quite immaterial whether said Jay J. Bead had, at the time of the making of this bond, actually in his hands, custody and possession, moneys and property of the estate, or whether he had theretofore, in violation of his duty and the orders of the County Court, disposed of the same.
The bond was intended to be and is a surety that he should pay over and account for all moneys which, at the time of the execution of the bond, he ought to have had in his hands as such assignee, as well as all that should thereafter come into his hands.
It is also urged that the bond is not such a one as is prescribed by the statute, and therefore such portions of it as provide for the due execution of orders theretofore made are invalid.
The bond was voluntarily given. The position as assignee which Mr. Bead then held was not one to which he had title by virtue of an election by the people, or by appointment, having a definite term of office, and from which he could only be removed by proceedings in the nature of an impeachment. It was the right and the duty of the County Court, if at any time it became satisfied that the bond the assignee had already given was insufficient, to require him to give a new one, and such new bond can not be considered, because its terms are in excess of those prescribed by statute, as having been something illegally exacted from Mr. Bead, and consequently something upon which neither he nor his sureties are liable. Wolfe v. McClure, 79 Ill. 564; Todd v. Cowell, 14 Ill. 72; Decker v. Judson, 16 N. Y. 439; Scofield v. Churchill, 72 N. Y. 565.
The sureties on the bond are concluded by the findings of the County Court as to the amount unaccounted for that came to the hands of the assignee, and which he was ordered by the County Court to pay over, and the sureties are not entitled to have such matter re-tried. Housh v. The People, 66 Ill. 178; Gillett v. Wiley, 126 Ill. 310; Frank v. The People, 147 Ill. 105; People v. Seelye, 146 Ill. 189; Kalleman v. Estate of Guthrie, 142 Ill. 357; Ammons v. The People, 11 Ill. 6; Fogarty v. Ream, 100 Ill. 366.
The order of the County Court made July 12, 1892, commanding Jay J. Bead to pay to the claimant the sum of $6,654.29, was one in which the sureties upon the bond of Bead had an interest—were, in the language of the statute, “ aggrieved ” thereby—-and were therefore entitled to appeal therefrom. Weer v. Gand, 88 Ill. 490.
Appellant can not, in this proceeding, litígate a matter upon which there was an order of the County Court from which he could have appealed.
Counsel for appellant urge that the assignee having paid a judgment described as the Kusworm judgment, without an order of court therefor, and not being allowed the amount so paid, and it being admitted that such judgment was a proper claim to the extent of $1,500, he, the assignee, is entitled to be allowed, as against the estate, a claim to the extent of $1,500; that is to say, that as, but for the payment made by him, there would have existed against the estate a claim for $1,500, which he has disposed of, he is entitled to an allowance to the extent of whatever dividend would have been due upon such claim for $1,500.
We think counsel for appellant is right as to this, and upon an examination of the abstract of record, we find that such allowance was made, the finding being that after crediting the assignee with this $1,500, he owed the amount • which the County Court ordered him to pay.
The judgment of the Circuit Court is therefore affirmed.
