21 Ill. App. 283 | Ill. App. Ct. | 1886
We think the court erred in excluding from the jury the report made by Mrs. Foyles on the 12th of January, 1884. It tended to show that originally the mother intended to charge her daughter Huella for board at the rate of fifty cents per week, and if such was her intention and she actually furnished her daughter with such board, at reasonable prices, it would have been pro tanto a payment to her daughter of which the sureties upon her bond could avail themselves, notwithstanding the mother might afterward desire to be charged with it solely for the purpose of enabling her daughter to recover from the sureties.
There being a plea charging fraud in the settlement, claimed to be conclusive as to the guardian and sureties, all evidence tending to show such fraud was competent.
The order of the Probate Court finding the amount due from the guardian, while generally conclusive upon such guardian and the sureties, like everything else may be impeached for fraud. Amimon v. People, 11 Ill. 6; Ralston v. Wood, 15 Ill. 159. Under the same plea we think the evidence offered as to the financial condition of the family should have been admitted.
We think Seago, the surety, was a competent witness for all purposes and that he is not excluded either by the second section of chapter 51 or the first exception to said section. Appellee Keddish was in no sense suing as an heir. She was seeking to recover from her guardian and Seago the surety upon the guardian’s bond, which was a contract entered into after her money and property had descended from her father and become vested in her as her own property. Whether the funds that passed into her guardian’s hands came from her father by descent or was the gift of some living friend or relative, or the wages of her own labor, could not make the slightest change in her rights. Her claims upon the guardian and sureties and their obligations to her would be precisely the same in either case; so that in no sense can it be said she was suing as an heir.
But it is insisted that the first exception to Sec. 2, Chair. 51, prevents Seago from testifying to facts occurring before appellee attained her majority.
This exception must be construed in connection with the second section and it will be observed that it is not every guardian that can avail himself of the provisions of section two, for it is only where a guardian or trustee “of any su: h heir ” sues or defends that the adverse party, or person directly interested, is prevented from testifying. To make this section available, the ward, whom the guardian represents, must be an heir, one seeking to enforce or recover some right claimed by inheritance from some deceased person. It follows, therefore, that the first exception means when the guardian of a ward who is an “heir of any deceased person,” sues or is sued, as a party or interested person, may not testify to facts occurring before such ward attains majority.
Because of the refusal by the Circuit Court to permit this testimony to go to the jury, the judgment of the Circuit Court will be reversed and the cause remanded.
Meversed cmd remanded.
