In re Estate of Wincox , 186 Ill. 445 ( 1900 )

Per Curiam:

In deciding this case the Appellate Court delivered the following opinion:

“We shall not attempt to consider in detail, and severally, each of the numerous points presented by counsel for appellant or to pass upon them seriatim.

“It is contended on the part of appellant that the circuit court erred in setting this cause for trial out of its regular order. No statute is referred to and no case is cited to support this contention. The trial court may, in its discretion, for good and sufficient cause shown, direct that a case shall be advanced and tried out of the regular order in which it may be placed upon the docket. (Rev. Stat. chap. 110, sec. 17). Unless it appears that there has been an abuse of such discretion which works manifest injustice, it will not be interfered with by a reviewing court. (Clark v. Marfield, 77 Ill. 258). It does not appear in the case at bar that any injustice was done to appellant by advancing this case. * * *

“There is no such accounting in this cause as that it was error not to refer the case to a master. There was, in fact, no accounting. The only question upon the appeal was as to whether five specified items should be charged to appellant in his accounting. There was no question as to the amount of each of said items or as to what they were for.

“One of the items included in this appeal, and which was not allowed to appellant in his accounting, is the sum of $1865, alleged by appellant to have been paid by him to Jennie Wincox as widow’s award. Appellant was appointed administrator to collect. He was not authorized by order of the probate court to pay any or either of the items which he now claims should be allowed to him. He had no authority as to payment of widow’s award or claims unless the law vested in him such authority. The statute concerning the appointment of administrators to collect says that the appointment shall be ‘to collect and preserve the estate of any such decedent until probate of his will or until administration of his estate is granted. (Rev. Stat. chap. 3, sec. 11). The letters issued are that such an administrator may ‘collect and secure’ the property of deceased ‘so that the same may be preserved’ for those legally entitled thereto. (Sec. 12). The bond such an administrator is required by statute to give, is conditioned that he shall ‘deliver to the person or persons authorized by the court, as executor or administrator, to receive the same,’ all goods, etc., which shall come to his possession. (Sec. 13). Section 17 provides that ‘on the granting of letters testamentary or of administration the power of such collector so appointed shall cease, and it shall be his duty to deliver, on demand, all property and money of the deceased which shall have come to his hands or possession * * * to the person or persons obtaining, such letters; and in case any such collector shall refuse or neglect to deliver over such property or money to his successor whpn legal demand is made therefor, such person so neglecting or refusing * * * shall forfeit all claims to any commission for collecting and preserving the estate. ’

“To what extent the probate court may authorize expenditures by an administrator to collect it is not importaut here to inquire, for the reason that that court did not enter any order authorizing appellant to make any expenditures whatever. Neither under the statute nor by order of court was appellant authorized to disburse any part of the estate. He was, by his appointment and under the statute, just what he calls himself in his account filed in the probate court: an administrator to collect, and only that. When he assumed the right to pay out any money belonging to said estate he did so at his peril.

“Much stress is placed upon the fact that appraisers were appointed by the probate court who fixed the amount to be allowed as widow’s award, which was approved by that court. But that was not an award to any particular person. It does not purport to be an award to said Jennie Wincox. Appellant,must have known that the claim that she was the widow of said George Wincox was being contested by the heirs. It would appear from his affidavit that Moses Salomon, brother of and attorney for appellant, knew that the claim of said Jennie Wincox that she was the widow of said George Wincox was based upon an alleged common law marriage. But as appellant had no right or authority to pay a widow’s award to anybody, it is, as affecting this case, immaterial whether said Jennie Wincox was or was not the widow of George Wincox. It follows that the trial judge did not err when he refused to hear testimony upon the question as to whether said Jennie Wincox was such widow.

“As we understand it, the claim of appellant to be allowed $1750 for attorney’s fees is for that sum alleged to have been paid to Moses Salomon. We notice in this record that when the $20,000 note described in appellant’s inventory was paid, $2000, part of the proceeds, was applied in part payment of a personal debt due from said attorney to H. H. Walker. The balance of $18,208.90 was paid by three checks, all payable to the order of said attorney, M. Salomon, and by him endorsed. Whether these facts establish the crime of embezzlement, as urged by-counsel for the administrator, we do not assume to determine. Said $20,000 note had not matured. Said attorney negotiated for the payment thereof and received all the proceeds. Appellant had no right or authority whatever to sell said note or accept payment thereof prior to maturity. This said attorney must, of course, have known to be the law. There was no error in refusing to allow appellant said attorney’s fees.

“It seems that the whole amount of the proceeds of said note, except the $2000 paid on account of M. Salomon’s personal indebtedness, viz., $18,208.90, went to the corporation known as the Chicago Architectural Iron Works. Of that corporation said attorney, Moses Salomon, is president, appellant Joseph Salomon is vice-president, and Leo Salomon, another brother, is secretary and treasurer. All three are directors and stockholders. We do not find from the record that appellant holds any obligation executed by said corporation for the re-payment of said sum of $18,208.90, or any part thereof, or any security therefor. Neither does it appear that he holds any note or security for the $2000 paid on account of an individual debt owing by said attorney, Salomon, or that said attorney has ever executed any note or other evidence of indebtedness, or given any security for the payment of said sum to appellant or to said estate. While such facts would not affect the question as to the legal liability of appellant, they have a bearing upon the question of allowing commissions.

“It was not error to disallow the claim of appellant, as administrator, for $1000 commissions. To have allowed him commissions upon money wrongfully collected and appropriated, in the manner shown by this record, would have been wrong. The statute provides (chap. 3, sec. 17,) that ‘in case any such collector shall refuse or neglect to deliver over such property or money to his successor when legal demand is made therefor’ he shall forfeit all claims to any commissions. Demand was made upon appellant by his successor and appellant neglected to deliver or pay over as the statute required. He thus forfeited all claim to auy commissions.

“The same record of the probate court which shows the appointment of appellant also shows that the order theretofore entered allowing the claim of Mrs. Stowell for $100 was vacated and set aside, and yet it is here contended that appellant has paid that claim and that it should be allowed to him. Attorney for appellant, in his printed argument, refers to the pages in the record showing that this claim was, filed and afterward allowed, but fails to note the fact that the order allowing such claim had been vacated. Appellant should not have paid it, and such payment cannot be allowed in his accounting.

“There was no error by the trial court in disallowing each and every of the four items alleged to have been paid out by appellant, viz.: For widow’s award $1865, commissions to appellant $1000, attorney’s fees $1750, and claim of Mrs. Stowell $100. Neither was there" any error in charging appellant interest amounting to $1534.25.

“It is stated by attorney for appellant in his printed argument, and it is emphasized by being there printed in italics, that ‘not one cent has been unaccounted for.’ It seems to be the idea of the writer of the argument for appellant that because it is shown when the appellant permitted a portion of said estate to "be abstracted, and by whom and how, and when he had illegally used and misappropriated the balance, therefore he was not guilty of any culpable misconduct. * * *

“The judgment of the circuit court is affirmed.”

We concur in the foregoing views expressed by the Appellate Court and in the above conclusion reached by that court. Accordingly, the judgment of the Appellate Court is affirmed.

Judgment affirmed.