| Ill. | Jun 16, 1880
delivered the opinion of the Court:
Appellant, by his counsel, insists that, under the statutes of Indiana, no right of action was vested in him, as administrator,' to receive any part, of the fund in question. As to that part of the fund paid on account of the death of Lucinda M. Regan, we think the right of action, by the Indiana statute, was placed in appellant, and it is only as to this part of the fund he is charged by the decree. On this ground he has no just cause to complain.
Appellant also contends that, inasmuch as he did not in fact himself receive any part of this fund, and had no active agency in the bringing of the suit, or otherwise in the procurement of the fund, he can not properly be charged with any part of the money received by Marshall H. Regan. We think otherwise. The right of action for its recovery was in him; the suit was begun and conducted in his name, and with his knowledge and consent, and the settlement was accomplished with his knowledge and approbation, and he destroyed the right of action by his own release, executed under his hand and seal, and the money, by his acquiescence, was placed in the hands of Marshall H. Regan. It was the complainants’ money—a trust fund—and they were minors. The acts of Regan, in this regard, must be considered the acts of Perry, as between complainants and himself, and Perry thereby became bound to see to it that this portion of the fund should be placed in their hands, or in the hands of their lawful guardian. Regan evidently assumed to act as their guardian. Hot having lawful authority to act as such, the receipt of the fund by him did not discharge Perry from his responsibility. In equity he stood as security, to these children, that the trust thus assumed by Regan Avould be faithfully fulfilled. The money in Regan’s hands was a trust fund, and as to the children of his deceased Avife he became, by the receipt of the money, a trustee. The mere fact that Regan assumed the trust, (not being lawfully authorized to do so,) did not relieve Perry from his responsibility.
It is insisted Regan was the natural guardian of his infant children, and as such had lawful right to the custody of their money. As to the control of the person of a minor, the father is guardian by nature. As to the estate of the minor, the father has no poiver, without an appointment, and in this way security is provided for the faithful performance of that trust. Perry, in permitting this fund to go into the hands of Regan, without his being appointed guardian in the proper way, could not relieve himself from ultimate responsibility.
This, however, was a trust fund in the hands of Regan,— he actually took the money, and Perry did not derive any pecuniary benefit therefrom. Justice and equity demand that (while the rights of the children of Lucinda M. Regan should be protected,) care be taken to do no injustice between Perry and the legal representatives of Marshall H. Regan, deceased, so far as the same can be done without impairing the rights of the children. The fact that her heirs are also his heirs, interested iu the protection of his estate, enhances the necessity of this care.
In so far as concerns that part of the fund paid on account of the death of Mrs. Regan, we think the estate of Marshall H. Regan should be charged therewith, as trust funds in his hands at the time of his death, and the payment thereof to complainants, by his legal representatives, out of the assets of the estate in the class of preferred claims, should have been first ordered by the decree, and in default of such payment Perry ought to have been required by the decree to pay the same; and the decree should have, in such case, provided for the reimbursement of Perry, for such payment, out of the funds of the estate which ought to have been applied to the discharge of this claim. In other words, the decree ought to have declared the right of Perry to be subrogated to the rights of the complainants, in case of the payment to them by him of this claim; and the decree ought to have provided for the enforcement of such right. Perry had a right to claim, in this suit, this partial protection by a marshalling of the equities. This was not done, and for this reason the decree, as against appellant, must be reversed, and the cause remanded with directions to the circuit court to enter a decree in conformity to these views.
The order striking from the files the cross-bill is also set aside, and Perry should have leave (although not essential) to amend the same so as to state the relief sought more specifically.
Appellees insist, under cross-errors assigned, that Perry ought to be charged, also, with that part of the fund paid on account of the death 'of Marian Pegan. It is insisted, it matters not whether Perry had or had not a right of action vested in him for the recovery of that fund, that, having chosen to intervene in a fiduciary capacity, and by that mode of proceeding having obtained the fund for the use of the children of M. H. Pegan, it does not lie in his mouth to di-‘ vest himself of the responsibility incident to such attitude, by saying he had no lawful right to sue for or receipt for the money. Assuming this to be sound, we think his duty in that regard was fully performed. It seems plain, under the Indiana statute, that in case of the death of a minor, by the wrong of a railroad company, the right to recover and to receive compensation for such wrong is placed in the father of such minor, if the father be in esse. Perry, then, if chargeable for this part of the fund, was responsible that it should reach the hands of these complainants, or the hands of some one authorized by law to receive the same for them. The fund was created by the statute of Indiana. The same power which created the fund directed its payment to the father, to inure to the next of kin, under the law of descents in Illinois. The moment that part of the fund reached the hand of the father, the supposed liability of Perry ended, for Pegan was, by the Indiana statute, the true and lawful custodian of that fund.
Other exceptions are taken to other parts of these proceedings, but these are all we deem it necessary to notice.
Decree reversed.
Mr. Justice Craig, dissenting.