34 Ill. App. 658 | Ill. App. Ct. | 1890
Three grounds of reversal of the judgment of the Circuit Court are urged. The first is that the affidavits filed in support of the motion for judgment and against it, having disclosed a controversy in regard to the compromise of the plaintiff’s cause of action, the court should have required the defendants to plead the agreement upon which the motion was based, and thus make an issue which could have been submitted to a jury. This contention assumes that the agreement for the entry of judgment should be considered a release of plaintiff’s cause of action. This assumption does not seem to us to be well founded. Certainly the terms of the agreement do not warrant such an assumption. It might be contended that the agreement by a fair implication was a release of her cause of action except as to the amount for which the judgment should be entered. But we fail to see how the defendants could have framed a plea upon the agreement as it stands that would have presented any triable issue upon the motion of defendants based upon the agreement. The court could properly inquire, first, whether plaintiff had executed the agreement, and this being established, if it was claimed that the agreement had been obtained by fraud, the court might investigate that question and also the further question whether plaintiff, under the law, could make such agreement. When it was determined by the court that plaintiff executed the agreement and that she had the legal power to make it, and that it was not obtained by fraud, nothing remained but to enter judgment in accordance wdtli the terms of the agreement.
The second ground of reversal is that, conceding that the question was properly disposed of on motion, the court erred in not finding that the agreement was obtained by fraud, and therefore not binding on appellant. The statements of appellant in her affidavit which tend to show that she was overreached in the negotiation which resulted in her signing this agreement for judgment for 8200, are directly contradicted by James, Dawson and JErebs. We have carefully examined all the affidavits and are not able to say that the appellant was induced to enter into the agreement by fraud. Much that plaintiff claims that James said to her, was the mere expression of his opinion, and such expressions ordinarily do not amount to fraudulent representations, particularly when these opinions are as to matters of law. American Ins. Company v. Crawford, 7 Ill. App. 29; Fish v. Cleland, 33 Ill. 238.
The remaining ground upon which appellant seeks to reverse the judgment of the Circuit Court is, that plaintiff had not the power to make the agreement. In support of this proposition, appellant relies upon Sec. 83, Chap. 3, Starr & Curtis, p. 226. This section requires an administrator to secure an order of Probate Court, authorizing him to settle or compound claims due the estate, before he can legally proceed to do so. Does this section apply to cases like the one at bar? As we construe the statute under which this suit is brought, the.claim sought to be enforced here, is not a debt due to the estate. When recovered, the amount of the recovery does not become assets in the hands of the administrator to be distributed, as the other assets of the estate, “ but the amount recovered shall be for the exclusive benefit of the widow and next of kin of such deceased person.” The creditors of the estate of the deceased have no interest whatever in the amount of such recovery. Section 83 of the statutes in relation to the administration of estates, is applicable alone, as we view it, to claims due the estate, and which, when collected, belong to the estate, as assets, applicable to the payment of debts of the estate. As to the power of the plaintiff to settle the amount of her recovery as administratrix in this case, the case of Henchey, Adm’x, v. City of Chicago, 41 Ill. 136, seems to be conclusive. In that case it is said: “^Neither can we agree with appellant’s counsel in the position that the plaintiff had no power to make the stipulation by which the suit was dismissed. The statute vested in her as administratrix, the right of action and the legal title to whatever damages were recoverable. This, of necessity, gave her the legal right to control the prosecution and disposition of the suit. Whether the children, who, with herself, were interested in the distribution of whatever damages might have been recovered, can call her to account for any error of judgment she may have committed in making settlement, is to be decided when they make the attempt.”
This decision is binding upon us until overruled by the Supreme Court, or until the Legislature shall change the statute. The judgment of the Circuit Court is affirmed.
Judgment affirmed.
