39 Ill. 251 | Ill. | 1866
delivered the opinion of the Court:
This was an action of debt brought by the plaintiffs in error, as distributees of the estate of David H. Post, against the defendants in error, as securities upon the bond of Marshall S. Corey, who was administrator of Post. The declaration averred that on the 19th day of April, 1861, Corey exhibited his account for settlement, that he showed in his hands for distribution the sum of $1,767.69, that the County Court thereupon ordered him to pay one-third thereof to the widow, and the sum of $235.69} to each of the five heirs, and that the same was unpaid. The declaration also averred that Corey had died previous to the commencement of the suit, and that no administration had been granted on his estate. The defendants demurred, the demurrer was sustained, and judgment for costs rendered against the plaintiffs, who thereupon sued out their writ of error.
The defendants urge two objections to the declaration: first, that it fails to aver a demand on the administrator, and, secondly, that it does not aver the tender to the administrator of a refunding bond. j
It is true, the one hundred and twenty-sixth section of the statute of wills requires a demand to be made before the administrator is chargeable with a devastavit, but that statute must not receive a construction, the effect of which would be to discharge the securities of a delinquent administrator, merely as a consequence of his death. Such, certainly, could never have been the intention of the legislature. The statute must receive a sensible construction, even though such construction qualifies the universality of its language. When it directs that a demand shall be made upon an administrator by a person entitled, under the order of the court, to money in his hands, it must be considered as having reference to cases where there is an administrator in being upon whom the demand can be made. The demand is, in most cases, a matter of form, intended to protect parties from needless costs, and its requirement by the law was not designed to be used by the securities as a shield from liability after a demand had become impossible. The law is not so unreasonable as to require the performance of impossibilities as a condition to the assertion of acknowledged rights, and when legislatures use language so broad as apparently to lead to such results, the courts must say, as they have always said, that the legislature cannot have intended to include those cases in which, by the act of God, a literal, obedience to their mandate has become impossible. “ The law itself, and the administration of it,” said Sir William Scott, as quoted in Broom’s Maxims, page 181, “ must yield to that to which every thing must bend—to necessity. The law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases.” The objection to the declaration, founded on the failure to make a demand, was not well taken.'
The second objection springs from the failure to give a refunding bond. The one hundred and twenty-ninth section of the statute of wills provides that “ administrators shall not be compelled to pay legatees or distributees, until bond and security be given by such legatees or distributees to refund the due proportion of any debt which may afterward appear against the estate, and the costs attending the recovery thereof. Such bond shall be made payable to such executor or administrator, and shall be for his indemnity, and filed in the court of probate.”
Section one hundred and thirty, after directing what proceedings shall be taken on these bonds in case the necessity of refunding shall arise, concludes as follows: “And in all cases where there may be no bond, an action of debt may be maintained against such distributee or legatee.” This last clause shows, very clearly, that the legislature, without undertaking to define the cases in which a bond might not be given, still contemplated that such cases might arise. In the case before us, a compliance with the statute has become impossible, by the act of God. Shall it then be said that these distributees must lose what is legally their due, and what the Probate Court has ordered to be paid to them ? They are in no default. There is no person in being to whom the bond can be given. There is not even an administrator of the deceased administrator. It is a case clearly within the principle already stated, where, in the forcible language of the learned judge already quoted, “ the law itself, and the administration of it must yield to that to which every thing must bend—to necessity.” The declaration avers that administration was granted on the 20th of June, 1856, and that the administrator’s report, made on the 19th of April, 1861, showed that all the debts were paid, and that there was a balance in his hands, of which the sum of $235.69 belonged to the present plaintiff, to whom the court ordered it to be paid. All creditors are barred by the two years’ statute of limitations, except those under disabilities. Should any of this class hereafter appear they will have their action of debt against the distributees under the clause of section one hundred and thirty already quoted. It cannot be claimed that these sureties can again be made liable for any money they may pay under the order of the Probate Court against their principal. The only persons who can possibly be prejudiced by the want of a bond, are creditors under disabilities who have not proved their debts, and the chances are, of course, very slight, that any such creditors are in existence. Where the report of the administrator shows the payment of the debts, and a balance in his hands belonging to the distributees, and the court orders its payment, the legislature can never have intended that they should lose their rights, because the death of the administrator renders it impossible to give him a bond. Any other construction of the statute would amount to a denial of justice. We hold the declaration good.
Reversed <md remanded.
