Wells v. Miller , 45 Ill. 33 ( 1867 )

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action of assumpsit brought by Wells & Sears against Mercie H. Miller, administratrix of Joseph C. Miller, deceased, to recover a balance due them for lumber sold. The defendant resisted the allowance of the claim, on the ground that it had not been exhibited within two years after letters of administration had been granted.

The 116th section of the statute of Avills provides, that the manner of exhibiting claims may be by serving a notice of such claim on the executor or administrator, or by presenting them the account, or filing it in the court of probate. It appears by the proof that a copy of the account was furnished to Seymour, the son-in-law of defendant, who called upon the plaintiffs, at her request, to procure a copy, and that subsequently she requested Rucker, her attorney for the estate, to see plaintiffs in regard to a settlement. He did see them, and a copy of the account was again furnished to him. We are of opinion that this Avas a sufficient presentation of the account, within the meaning of the statute. The administratrix was fully informed of the precise amount and character of the claim, and a copy of the account was twice furnished her through her agent. The claim was not, therefore, barred by the lapse of the two years.

The act of February 21, 1859, is quoted by the counsel for the administratrix, as applicable to this case, but that act clearly creates no new rule in this regard. It provides that Avhenever a person having a claim against an estate, fails to present it at the term of the court selected by the administrator, it shall be the duty of such person to file a copy Avith the county clerk, with an order for summons to the administrator. The act then directs the suit to be docketed and heard at the return term, unless continued for cause shown. But no time is prescribed within which the claim shall be filed Avith the county clerk, and even if we were to assume that the legislature intended the claim should be filed at the next term after that selected by the administrator, the law does not declare the consequence of a failure to file it. But we have no right to assume this, as the legislature has not said it. Neither have we any right to say that the claim shall be barred undqr this' act if not filed at a particular time, or what shall be the consequences. The act is very imperfect. We cannot say whether the penalty for not filing was designed to be loss of the debt, or only its postponement to other claims, or perhaps the payment of all costs by the claimant. It would be pure legislation in us, if, in the absence of any direction in the act as to the time when the claim should be filed with the county clerk, and as to the penalty for not filing it, we should undertake to say when it must be filed, and that, if not then filed, it shall be barred ; and, in doing this, establish an entirely different rule from that laid down in the statute of wills.

As the legislature has framed the act of 1859, it is simply directory as to the mode of prosecuting a claim in the County Court. It does not either directly, or by implication, repeal the 116th section of the statute of wills, nor does it oust the Circuit Court of its jurisdiction over suits against executors and administrators, to be determined according to the provisions of that statute. The running of the two years’ limitation may still be prevented by presenting the claim or account to the administrator.

It follows from what we have said that this judgment, instead of directing payment to be made out of assets to be thereafter discovered and inventoried, should have been for payment in due course of administration. What the due course of admintration would be in a case of this character, is a question not presented by this record, nor argued by counsel} and not free from difficulty. The judgment must be reversed and the cause remanded.

Judgment reversed.