8 Ill. 490 | Ill. | 1846
The Opinion of the Court was delivered by
On the 16th of November, 1844, the Probate Justice of Hancock county allowed a claim in favor of David Wallace against the estate of Moses J. Wallace, for $194-50. Welch, the administrator, prosecuted an appeal to the Circuit Court, where the cause was submitted to a jury, and a verdict returned in favor of Wallace for $255. A judgment was then entered, that Wallace recover of Welch, as administrator, the amount of the verdict and costs, and that he have execution therefor “against the goods, chattels, rights, credits and effects in the said administrator’s hands to be administered.”
Welch has prosecuted an appeal to this Court.
The appellant insists in the first place, that the Circuit Court had no jurisdiction of the case, because no bill of exceptions was taken to the decision of the Probate Justice, as was required by the law in force at the time the decision was made and the appeal taken. It does not lie in his mouth to make this objection. If a bill of exceptions was necessary in order to render the appeal complete, it was his duty to have obtained it. He ought not to be permitted to take advantage of his own wrong. The omission to take a bill of exceptions might have been a sufficient cause for a dismissal of the appeal, but it was for the appellee to urge the objection. He chose to waive his privilege, and the appellant has no cause for complaint.
It is contended that the judgment for costs was erroneous. The 95th section of the 109th chapter of the Revised Statutes, requires the administrator to fix on a term of the Probate Court for the settlement of all claims against the estate, and give notice thereof; and provides, that the estate shall be answerable for costs on all claims presented at or before said term, but not for the costs on those exhibited afterwards. There is nothing in this case which shows that the administrator ever appointed a time for the adjustment of the claims against the estate, or gave any notice to the creditors to present them. In the absence of proof, the presumption is that the demand in question was exhibited in due time, and that the estate was liable for the costs of establishing it. If the facts of the case relieved the estate from the payment of costs, it was the duty of the administrator to have made them known.
It is insisted that the Court erred in awarding execution on the judgment. This position must be sustained. The judgment was clearly erroneous in awarding execution against the estate of the decedent. Under our statute, the proceeds of an estate are to be distributed ratably among the creditors who establish their demands in proper time. The recovery of the judgment only establishes the debt of the creditor. He is not entitled to execution. One creditor is not allowed by obtaining a judgment to absorb the assets to the exclusion of others, who may not be so fortunate as to establish their debt as early. A certain time is to be given the creditors within which to make proof of their claims, and then a dividend of the assets is to be declared, in which all of such creditors are to share. See Greenwood v. Spiller 2 Scam. 502; Burnap v. Dennis, 3 do. 478; McDowell v. Wright, 4 do. 403, Powell v. Kettede, 1 Gilm. 491.
The judgment of the Circuit Court will be reversed, with the costs of this appeal, and a judgment will be entered in this Court in favor of Wallace and against Welch as administrator, for the amount of the verdict and the costs before the Probate Justice, and in the Circuit Court, to be paid in the due course of administration.
Judgment reversed.
