Blair v. Sennott , 134 Ill. 78 ( 1890 )

Mr. Justice Scholfield

delivered the opinion of the Court:

This was a common law certiorari, issued by the circuit court of Cook county, bringing before that court the record of the probate court of the same county, ordering appellant to deliver to Martha Tafft, administratrix with the will annexed of the estate of Henry Tafft, deceased, certain moneys found to be in his hands, and belonging to that estate.

Some complaint is made of the failure of the probate court to make up the record, showing what actually transpired in the proceeding -before that court. If a court refuse to make a proper record, the remedy is by mandamus, and not by certiorari. Upon certiorari it can only be' inquired, first, has the inferior court exceeded its jurisdiction; and second, has it proceeded according to law. (Hyslop v. Finch, 99 Ill. 171 ; Donahue v. Will County, 100 id. 94; People v. Wilkinson, 13 id. 660; Doolittle v. Galena and Chicago Union Ry. Co. 14 id. 381; Miller v. Trustees of Schools, 88 id. 26.) And this- can only be determined from an inspection of the record. In no case can any fact be considered, whether consisting of evidence given upon the hearing, or of affidavits in support or denial of motions, unless it is lawfully a part of the record brought before the court. See cases cited supra, and Commissioners v. Supervisors, 27 Ill. 140; Gerdes v. Champion, 108 id. 137; Chicago and Rock Island Railroad Co. v. Whipple, 22 id. 105.

There is no mode by which the evidence given in a proceeding before the probate court can be lawfully preserved and made a part of the record. The remedy for error in rilling upon the evidence is by appeal to the circuit court. (Rev. Stat. 1874, chap. 3, sec. 124; Ennis v. Ennis, 103 Ill. 95.) And this is adequate and ample.

The first affidavit filed in this proceeding charged appellant with withholding the title to real estate. Subsequently, an amended affidavit was filed, charging him with having in his possession and refusing to deliver money which had come into his hands as an agent and attorney. The right to file an amended affidavit in such a proceeding is denied by appellant, and he also denies that the order directing him to deliver the money to the administratrix was made pursuant to the amended affidavit. We can not concur in either of these views. There is nothing in the statute from which it can be inferred that the power to institute the proceeding was intended to be exhausted by the first effort in that direction. We think, on the contrary, that the proceeding may be repeatedly instituted against the same party, where he is guilty, successively, of the acts specified in the statute as authorizing it to be instituted. And there can, therefore, be no reason why an administrator who discovers that he was misinformed and mistaken as to the facts when he filed an affidavit, should not be allowed to subsequently file an amended affidavit, setting up the facts correctly, allowing the party charged ample opportunity to answer the charge as thus amended. The proceedings before the court are, to a large extent, informal, and no technical, formal particularity is required in the orders of the court. It is enough, in cases like the present, that it can be seen, from the language of the order, that it is in the proceeding upon the amended order. The whole record must be considered, and it is not to be presumed that there was any other or different proceeding than it discloses. When the amended affidavit was filed, proceeding under the original affidavit was by that act abandoned. The order, therefore, being made subsequently to the filing of the amended affidavit, could only have reference to the amended affidavit. Moreover, its language is responsive to the amended affidavit, and entirely inconsistent with the original affidavit.

The substance of the amended affidavit is, that appellant, as the agent of Henry B. Tafft, deceased, in his lifetime loaned money for him, taking certain securities for its repayment; that since the death of said Tafft appellant has collected, on account of such loan and from such securities, the amount of such loan, and has the same in his possession, and refuses to deliver or pay it over to the administratrix, after demand made for that purpose. The court, in its order, finds that “said William T. Blair has in his possession the sum of $153, belonging to said estate,” which it orders him to “turn over to said Martha W. Tafft, administratrix with the will annexed of the estate of said decedent, within twenty-four hours,” etc. It shows that appellant was present in court when the order was made, and that it was made by the court after “having heard the evidence adduced and the arguments of counsel.” Counsel contend that the facts stated in the amended affidavit create merely the relation of debtor and creditor between the estate and appellant, and therefore bring the case within the ruling in Williams v. Conley, 20 Ill. 643, and Pahlman v. Graves, 26 id. 405.

The proceeding is under section 81, chapter 3, of the Revised Statutes of 1874, which, so far as affects the present question, reads as follows: “If any executor or administrator, or other person interested in any estate, shall state, upon oath, to any county court, that he believes that any person has in [his] possession, or has concealed or embezzled, any goods, chattels, moneys or effects, books of - account, papers, or any evidence of debt whatever, or titles to lands, belonging to any deceased person, * * * the court shall require such person to appear before it by citation, and may examine him on oath, and hear the testimony of such executor or administrator, and other evidence offered by either party, and make such order in the premises as the case may require. ” In our opinion this does not mean merely goods, chattels, moneys, etc., placed in the hands of the party charged by the deceased in his lifetime, but we think it includes also goods, chattels, moneys, etc., which belong to the estate of the deceased and which have come into the hands of the party charged since the death of the deceased. The language contemplates present ownership, and since a dead man can own nothing, “belonging to any deceased person” can only mean “belonging to the estate of any deceased person,”—and so we held in Steinman v. Steinman, 105 Ill. 348. Money of the principal in the hands of the agent is still the money of the principal, and the agent has no right to use it or pay it out for his own private purposes. While he has this money, he is not, technically, the creditor of his principal, but simply his trustee. (Mechem on Agency, sec. 780.) It is, in such case, therefore, always the legal presumption that the money in the hands of the agent is the identical money that he received, and he will not be heard to allege his embezzlement or breach of trust to escape a liability arising from that presumption. Mechem on Agency, sec. 785; Story on Agency, secs. 229, 230; Trustees v. McCormick, 41 Ill. 323; Cottom v. Holliday, 59 id. 176.

Thomas v. People, 107 Ill. 517, is not analogous to the present case. There the question was, whether a payment by a master in chancery of the distributive share of an heir-at-law in certain lands sold on partition to a person claiming to be administrator of such heir-at-law, the heir-at-law being alive, was such a payment as would discharge the master in chancery from liability, and it was held that it was not, because it is impossible that there can be an administrator of a living person—that the appointment of the administrator was a nullity, because the probate court had no jurisdiction to act in the case of- living persons. But here there is no question of the death of Henry E. Tafft, or of the lawful appointment of Martha W. Tafft as his administratrix, and there is therefore jurisdiction over the estate; and, as has been seen, the affidavit, in our opinion, sufficiently charges that appellant has money in his hands belonging to the estate, to give the court jurisdiction to inquire as to the truth of that charge, under section 81, chapter 3, of the Bevised Statutes of 1874, and there was jurisdiction of the person of appellant. Having jurisdiction of the subject matter and of the person, the same presumptions in favor of the correctness of the ruling of the probate court must be indulged as in favor of circuit courts, under like circumstances. Matthews v. Hoff, 113 Ill. 90; Barnett v. Wolf, 70 id. 76.

We find no reason justifying a reversal of the judgment below. It is therefore affirmed.

Judgment affirmed.