15 Ill. 159 | Ill. | 1853
In September, 1836, Whitney was appointed administrator of the estate of Pease, and gave a bond as such administrator in the penalty of thirty thousand dollars, with the complainant Wood, and Alexander, the ancestor of the defendants, and two others, who are insolvent, as his sureties. In May, 1847, Whitney exhibited his administration account to the probate court, from which it appeared there was due and owing from him as administrator to Nathaniel Pease, Jr., one of the heirs of the intestate, $5,870.14, which sum the administrator was adjudged to pay to Pease as heir. Whitney having neglected to pay the money, Pease instituted a suit upon the administration bond, against Wood as surety, and in June, 1848, recovered a judgment against Wood for $6,248.39 damages and costs. This judgment Wood paid off, partly in money, and the balance by giving to Pease his own notes, secured by mortgages on real estate, upon which payment Pease entered satisfaction of the' judgment.
In May, 1837, Whitney was also appointed guardian of Nathaniel Pease, Jr., and as such, executed his bond in the usual form, in the penalty of forty thousand dollars, with Wood and two others as sureties.
In October, 1840, Whitney rendered an account of his guardianship, from which it appeared that there was then a balance against him, and in favor of his ward, of $8,158.80 of the moneys which he had received as administrator, after the payment of all debts against the estate. The ward attained his majority in January, 1844, after which he cited the guardian before the probate court, who, in obedience to such citation, appeared before said court, and rendered an account of his guardianship. The court then found and adjudged the guardian to be indebted to the ward, in the sum of §6,915.74; and the court adjudged the guardian to pay that amount to the ward. The order made against Whitney, in 1847, as administrator, and in favor of the heir, and the order made against him in 1844, as guardian, and in favor of the ward, were for the same moneys which had come to his hands as administrator, as a part of the estate of the intestate, and which belonged to the heir as a portion of his distributive share of the estate, after the payment of the debts.
This bill is filed by Wood against the hens of Alexander, to compel them to make contribution for the amount which Wood has paid as cosurety with Alexander, upon the administration bond. The heirs resist this claim for contribution, upon the ground, first, that although the money was received by Whitney as administrator, yet it was retained by him as guardian, he having been at the time both administrator and guardian, and that Wood fraudulently suffered the judgment to go against him upon the administration bond, in order to compel contribution out of the estate of Whitney, all of his cosureties upon the guardian bond being insolvent. It is also alleged that the order of the probate court made in 1847, against the administrator, was fraudulently obtained for the same purpose. Second, it is insisted that the notes and mortgage given by Wood to Pease in satisfaction of the judgment, did not amount to a payment, for which he has a right to call upon a cosurety for contribution. The charge of fraud is not, in our judgment, sustained by any proof in the record. So far from Wood having been guilty of a fraud in procuring the order of the probate court against the administrator, in 1847, it does not appear that he had any thing to do with that proceeding, or knew any thing of it, either at that time, or subsequently, till the institution of the suit upon the administration bond. And so far as we may judge from the - record of that suit, it seems to have been defended with energy,,and in. good faith. No fraud having been proved, the question must, be determined in the first place upon effect to be given to the judgment of the probate court, entered in 1847, against the administrator, ordering him to pay over the money in his hands to the heir. That that judgment was binding and conclusive upon the administrator himself, there can be no doubt, for he was a direct party to it, and was before the court at the time, and the court had competent and indeed exclusive jurisdiction to pronounce that order or judgment. The effect of that order upon the sureties of the administrator, ■ must depend upon our statute. Section 126 of our statute of wills, provides, “ If any executor or administrator shall fail or refuse to pay over any moneys or dividends to any person entitled thereto, in pursuance of the order of the court-of probate lawfully made, within thirty days after demand made for such moneys or dividends,” the .executor or administrator may be attached ; “ and moreover such failure or refusal on the part of such executor or administrator, shall be deemed and taken in law, to amount to a devastavit, and an action upon such executor’s or administrator’s bond, and against his or their securities, may be forthwith instituted and maintained, and the failure, aforesaid to pay such moneys or dividend, shall be a sufficient breach to authorize a recovery thereon.” If we are to give any force to language, this statute certainly makes that order as conclusive against the security, as against the administrator himself. That judgment or order is made evidence of a devastavit, if not complied with, and entitles the person in whose favor it is made, to recover upon the bond against both principal and security. The suit upon the bond is a collateral action, founded as well upon that judgment as upon the bond itself, and when the judgment is offered in evidence like any other judg.ment of a court of competent jurisdiction, it cannot be inquired into by those affected by it, except for fraud. Although Wood was not a party directly to that proceeding, yet he was bound by it, for the simple reason that he agreed to be bound by it when he entered into the bond; for the law said, if he entered into the bond, he should be bound by it. This answers every objection of hardship or injustice which might appear to exist, by holding him concluded by a proceeding which he was not notified to defend. (By entering into the bond, he not only assumed that the administrator should act with fidelity and discretion in the management of the estate, but he also took the responsibility that he should properly defend any proceeding against him which might be instituted in the probate court. The administrator might do or omit a thousand acts for which the security would be liable, but of which he might be entirely ignorant, or if known, he might be unable to control in the least degree. The hardship in the one case, is no greater than in the other. If he was not willing to take the responsibility of the administrator’s conduct and discretion to that extent, he should not have become his security. While the security is bound by the judgments of the probate court against his principal, if he thinks those judgments are unjust, he is, by the 138th section of the same statute, allowed to take an appeal to the circuit court. And that was the remedy which should have been adopted by the securities in this case, if they thought the order against the administrator was not warranted by law. It is unnecessary to say, in this collateral proceeding, whether the order made three years before, directing Whitney to pay over to the infant this same money as guardian, would have constituted a good defence to the proceeding in 1847, against him as administrator. That defence was not interposed, and the judgment is as conclusive, upon both the administrator and his securities, as if it had never existed. It was too late for Wood to make it, when sued upon the bond, as the court then decided, and it is too late now for the heirs of his cosecurity to make it, when they are sued for contribution. If any doubt could be entertained as to the true construction of our statute, the’ great number of decisions in other States upon similar statutes, referred to upon the argument, would settle it beyond controversy. But the statute is too plain to require authority, or to admit of doubt. The only remaining question is whether Wood has paid this judgment in such a way, as to entitle him to call upon the heirs of his cosecurity for contribution for the whole amount of that judgment. The judgment was for $6,248.39 and costs. He paid down in cash, $103.25, gave one note for $700.00, payable in April, 1849, and notes for the balance payable in eleven equal annual instalments, abundantly secured by mortgage upon real estate, and which notes have been paid as they have respectively fallen due. This was accepted by the judgment creditor, as a full payment of the judgment, and a receipt to that effect was given, and satisfaction of the judgment entered of record.
We consider it too well settled by authority, to admit of question at this day, that where one person is obligated to pay money for the use of another, a payment made in any mode, either property, or negotiable paper, or securities, if such payment is received as a full satisfaction of the demand, it is equivalent to, and will be treated as a payment in cash. Upon this point, a bare reference to a very few of the many authorities with which the books abound, will be sufficient. Wetherby v. Mann, 11 John. 518; McMillan v. Crofton, 6 Greenleaf, 307; Randall v. Rich, 11 Mass. 494; Pearson v. Parker, 3 N. H. 366; Atkinson v. Stewart, 2 B. Monroe, 343. There are a few decisions which would seem to conflict with this rule, but they are overborne by such a weight of authority, that the principle may be consider as firmly settled. Where the payment is received as a complete satisfaction, and the debt-or obligation is extinguished, it is a matter of no moment to the person to whose use the payment was made, whether it was made in money, property, or obligations. The benefit to him is the same, and his obligation to refund should be the same.
No other questions being raised as to the correctness of this decree, and these being decided in favor of the complainant, the decree must be affirmed.
Decree affirmed.