Nevitt v. Woodburn , 56 Ill. App. 346 ( 1894 )

Mb. Justice Habkeb

delivered the opinion oe the Coubt.

The facts are undisputed that Ege was appointed executor of the estate of George W. Woodburn; that appellant became' surety on his bond; that Ege was found in default to the amount of §1,841; that no part of that sum has ever been paid; that Ege has been removed, and that appellee was appointed administrator de bonis non.

Humorous contentions, several of them extremely technical, are advanced by appellant. It is first insisted that the decree of the Circuit Court rendered in 1888, after the remanding order of the Supreme Court, does not bind appellant because the finding was not against Ege as executor. Bead by itself, the decree of 1888 does not find against Ege as executor, but plainly has that effect when read in connection with the former decree. It was proper to read them together. The latter is upon the same subject-matter as the former and is its successor.

Appellant makes the point that the declaration does not aver, nor does the evidence show that Ege was ordered to pay to appellee, administrator de bonis non. It was not necessary to so aver or make such proof. There was not an administrator de bonis non at the time the decrees were rendered.

The failure to aver an order upon Ege to pay over the amount' found due, and the failure to aver that a demand was made upon Ege or appellant to pay, were the points on which appellant based a motion in arrest of judgment. He urges those points vigorously in this court. The first point we have expressed ourselves upon. In proceeding under Sec. 115, Ch. 3, B. S., entitled “ Administration,” against a defaulting executor or administrator, it is necessary to aver and prove a demand. It is not necessary to do so, however, when proceeding under section 39 of that chapter, which reads as follows:

“ Sec. 39. In all cases where any such executor or administrator shall have his letters revoked, he shall be liable on his bond to such subsequent administrator or to any person aggrieved for any mismanagement of the estate committed to his care; and the subsequent administrator may have and maintain actions against such former executor or administrator for all such goods, chattels, debts and credits as shall come to his possession and which are withheld or have been wasted, embezzled or misapplied, and no satisfaction made for the same.”

This suit was instituted under that section. Appellee’s declaration, and the proofs offered by him, were sufficient to support a recovery.

The chief contention of appellant arises upon the alleged error of the Circuit Court in refusing to allow proofs under his sixth plea, showing that the money did not come to the hands of Ege as executor, but by virtue of his office as trustee, executing a power in the will to sell land. The elaborate argument of appellant’s counsel upon this contention is in the teeth of the doctrine of res adjvMcata. Appellant became bound to answer the default of Ege as executor, and the question of his liability was conclusively settled in the decree against Ege. It could not be again investigated in a suit upon the bond. When considered in connection with the former decree, which we have held it was proper to do, the decree found appellant’s principal in default to the amount of $1,841. To allow the proof offered, would permit him to deny the finding of a decree in full force against him.

It is insisted, also, that as Ege was discharged as executor “October 13, 1882, any judgment rendered against Ege thereafter would not conclude, in any way, the surety,” and that appellant is, therefore, not bound by the decree of 1888. The finding was concerning the defaults of Ege during the period of his executorship and during the time when appellant obligated himself by the bond to indemnify the estate. So long as the adjudication is confined to those acts of the principal for which the surety has become responsible, it is immaterial when it is had, provided it is not barred by the statute of limitation.

Appellant contends that as the decree in which Ege was found indebted to the estate in the sum of $8,-604.52 as executor was rendered “ October 9,” 1882, from which he did not formally appeal, and as this suit was not commenced until April 28, 1893, appellee is barred by the statute of limitations. There were other parties affected by that decree, and it was immaterial who prosecuted the appeal. The proceeding was Us pendens. The declaration counts on the amount found due in 1888, and the decree of 1882 was offered in evidence as explanatory of the first decree and really as a part of it.

The court took the same view in giving an instruction with reference to the statute of limitations, of which appellant complained. The instruction is right. Decree affirmed.