Colton v. Field, Leiter & Co. , 131 Ill. 398 ( 1889 )

Mr. Justice Baker

delivered the opinion of the Court:

The words of the written instrument under seal, which seems to have been signed by all the creditors of the estate of Thomas except three, were : “We do, each and every of us, respectively, approve the course of said Colton, as aforesaid, in the management of the said estate, and release the said John B. Colton from further liability as such executor on account of our respective claims against said estate of E. F. Thomas, deceased.” These creditors had received only forty-six and five-eighths per cent of their respective debts, and the language used did not necessarily and absolutely imply an intention to release the estate from liability for the residue of such debts. That which they expressed by the terms they employed was not that they released the estate, or released Colton as executor of the estate, but that they released “the said John B. Colton from further liability as such executor.”

The primary consideration in construing an instrument of writing, is to ascertain the intention of the parties. Each clause and provision in the writing is to be read in the light of all the provisions and recitals contained in the instrument. Here, the recitals are, in substance, that the executor, at the request of creditors representing three-fourths in number and amount of the liabilities of the estate, procured the order of the county court permitting him to continue the business for the time necessary for the advantageous sale of the goods on hand, and that the goods procured by him were purchased in accordance with the wish of said creditors; and further, that he had rendered his final account, which had been approved by the county court, and a final order entered discharging him from further liability thereunder. These recitals are followed by the statement, that in consideration of the premises, and of the unusual exertions of said Colton, and of his personal risk of extra trouble and personal loss in acting as he had, they, such creditors, approve of said Colton’s management of the estate, “and release the said John B. Colton from further liability as such executor.”

At the time the instrument was signed, the condition of affairs was this: that appellees, who were two of the creditors of the estate, and whose objections to the report of the executor had been overruled in the county court, had taken an appeal to the circuit court, where the matter of such objections was then pending for a hearing thereon de novo, and appellees were insisting, not only that Colton should be charged with the ten per cent profit realized by him from the goods he furnished to the estate store, and with the $147.06 of eompensasation in excess of the statutory commissions, but also that he should forfeit and lose the whole of the $21,173.32 charged by him for the goods.

These circumstances, as well as the recitals in the writing itself, are proper to be considered in arriving at a conclusion in respect to the intent of the parties when they used the language they did. The creditors who. used that language were, at the time, standing in an attitude antagonistic to appellees, and were hostile to the accomplishment of the objects they had in view. On the other hand, they approved of the course of Colton, and in consideration- of what they regarded his “unusual exertions” in their behalf, and of the “personal risk” and danger of “personal loss” he had thereby assumed, they signed the instrument. It is manifest they did this for the purpose of assisting him in procuring from the circuit court an order in affirmance of the order which had already been made in the county court approving his final account and report,'and discharging him as executor. The object which they had in view was not to release the estate from the residue of the indebtedness due them. If that had been their intention, they could readily have expressed it in plain terms in the writing, or else have signed receipts in full. Their intention was merely to release the said John B. Colton from further personal liability in his capacity of executor. It can not be presumed they contemplated the relinquishment of any , right that might otherwise accrue to them from the possible disclosure of after-discovered assets; and it would be unreasonable to suppose it was their intention, that in the event the court determined that Colton was liable for the whole $21,-173.32, then that the whole of that amount should be, in the first place, applied to the payment in full of the claims of appellees, and the residue, if any, distributed to the heirs of the estate.

In the trial courts, the appellant made a claim that the instrument of writing in question was an equitable assignment to him, personally, of the unpaid claims held by the creditors signing it, and the same view is urged here. Taking this claim of appellant as a basis, appellees insist that if the creditors who executed the writing intended and attempted thereby to assign their claims to Colton, such assignment would not inure to his benefit, "but to that of the estate. The instrument contains no words of conveyance or transfer. Its language is, “we approve of the course of said Colton,” and “release the said John B. Colton from further liability.” Neither of these expressions is effective to work an assignment of a property right. The word “release” quite frequently imports a conveyance, but never when used in connection with the word “from,” and affirmed with reference to the releasee. The creditors did not intend by the writing which they executed, to assign to Colton their respective claims against the estate, and enable him to hold and enjoy, as such assignee, any future dividends that might arise from subsequently discovered assets, or otherwise. Their sole object was to aid him in securing a release from a personal liability, but their acts were wholly ineffectual to accomplish this, or in any way to either increase or diminish the amount for which he was personally responsible.

The claim is also made by appellees, that by their diligence, and through their exertions, and at their expense, this fund of $3879.34 has been discovered and made available as assets to the creditors of the estate, and that therefore they are entitled to have their claims paid in full before there is any distribution made to the other creditors. The rule of equity upon which this contention is based does not apply to proceedings in the county court for the settlement of the estates of deceased persons. The act in regard to the administration of estates provides for the division of demands against them into classes, and that when the estate is insufficient to pay the whole of the demands, they shall be paid commencing with the first class, and that the demands in any one class shall be paid pro rata; and further provides, that if the assets are “not sufficient to pay the whole of the debts, the moneys * * * shall be apportioned among the several creditors pro rata, according to their several rights, as established by this act.” (Rev. Stat. chap. 3, secs. 70, 71, 112.) These statutory provisions are mandatory, and binding upon the courts, and in the distribution of these assets of the estate of the deceased there can lawfully be no preference of one creditor over another of the same class.

We think the cross-error is well assigned. The costs that accrued in this proceeding prior to the time the cause was brought back to the county court after the first judgment of reversal in the Appellate Court, were occasioned by the attempt of appellant to secure a final discharge, without accounting for all the assets with which he was lawfully chargeable, and he should in justice pay the costs of that litigation, individually, and it makes no difference in regard thereto that appellees did not sustain all their objections made to his report. The costs that have accrued since the time above mentioned, have been caused by the attempt of appellees to absorb all or the greater portion of the assets then reported, and should, be charged to them.

The judgments of the Appellate and circuit courts are reversed, and the cause remanded to the circuit court, with directions to enter an order in conformity with the views herein expressed. Judgment reversed.