48 Ill. App. 220 | Ill. App. Ct. | 1892
Opinion of the Court.
This was an action of debt on a bond given by Ochiltree as administrator of the estate of Ouster. The suit was against the administrator and his sureties for the use of the heirs of the decedent, jointly.
The case was tried by the Circuit Court, a jury being waived, and judgment was entered for the defendants. It appears that this bond was given on the 20th of November, 1865; that at the August term, 1872, of the County Court, the administrator presented his report, showing a balance in his hands of $1,228.50, which was approved by the court and distribution thereof between the widow and heirs was thereupon ordered; that the administrator paid out accordingly to all the heirs a part of their shares, and all except two in full; that no further steps were taken until the October term, 1891, when the administrator presented his final report and asked to be discharged. In this report it was stated that his former reports had all been taken from the files, but that the record of the report of 1872 appeared in book 8, page 1892. of the County Court records, and the order of distribution thereon; that all debts and claims against the estate had been paid, and asking to be discharged; whereupon objections were filed on behalf of the heirs, and such proceedings were had that the County Court found the administrator was chargeable for moneys which he had received and failed to pay over on various accounts, in the total' sum of $1,072.98, and ordered him to pay the same to the heirs within thirty days.
Of this sum $46 was due B. Custer and $130.54 due W. C. Custer on the order of distribution of the August term, 1872.
It appeared that no money had been collected by the administrator since the making of his report in 1872.
The question presented is whether an action can now be maintained upon the bond against the principal and sureties for and on account of the moneys not reported, but collected, if ever, prior to the report of 1872.
The Circuit Court solved this in the negative, and we are inclined to agree with that conclusion. More than sixteen years elapsed from the making of the report in 1872 to the bringing of the present suit. If the administrator was ever in default he was so when he filed his report in 1872, and-he was then liable to an action on his bond. He had collected the money and failed to account for it.
It is suggested, however, that the administrator was a trustee and as such precluded from the defense of the statute of limitations. This report of 1872 was equivalent to an open denial that any more was due—a repudiation of liability in respect to all matters not reported; and if the proceeding were in a court of equity, such a denial would require the heirs to proceed to assert their adverse rights. Quayle v. Guild, 91 Ill. 378.
But the doctrine of exemption of trusts from the operation of the statute of limitations is not recognized in proceedings at law.
Strictly speaking, a trust, in its, technical sense, is known only in equity. To exempt a trust from the bar of the statute it must be of the kind belonging exclusively to the jurisdiction of equity. "Whenever a so-called trust matter is cognizable at law it is not withdrawn from the operation of the statute but is subject thereto. Angell on Limitations, sections Nos. 166 and 178; The Gov., etc., v. Woodworth et al., 63 Ill. 254; Haywood v. Gunn, 82 Ill. 385. The judgment will be affirmed.