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Henry J. Ross vs William A. Grimshaw

Source: Reports Of Cases Illinois
Written: 1849

Robert R. Greene, administrator de bonis non of Henry J. Ross, v. William A.

Appeal from Pike.

1. Executor — service to, for estate; claim, against estate. When a person
renders services for the benefit of the estate of a decedent, at the instance
of the executrix thereof, his claim for compensation is not a personal demand,
against the executrix; but, on the death of the executrix, may be enforced
against the estate, for the benefit of which the services were rendered.

2. Same. The acts of an executrix, rightfully done in her official character,
are landing on the estate which she represents.

This was a suit commenced by the appellee before the court of probate of Pike
county, against the appellant, to recover twenty-five dollars, claimed as a
fee, for prosecuting a suit, in the name of Hopestill Ross, as executrix of
Henry J. Ross, deceased, against certain parties by the name of Tucker and
Sealey. A judgment was recovered on that suit, against Tucker and Sealey, and
the money collected upon it was paid to the appellant as the administrator de
bonis non (the executrix having died) of the estate of the said H. J. Ross.
Before the probate court, the appellee recovered a judgment for the value of
his services, from which an appeal was taken to the circuit court of the
county; in which court a trial was had before Minshall, judge, and a jury,
resulting in a verdict for the appellee for the same sum of twenty-five
dollars; upon which a judgment was entered, directed to be levied of the goods
and chattels, etc., in the hands of the appellant to be administered, and for
costs. From this judgment of the circuit court, an appeal is taken to this

Wm. Thomas, for appellant, made the following points in argument: The right of
action upon the note of Tucker and Sealey was in Hopestill Ross. She, alone,
could maintain an action for the recovery of the money due thereon. 1 Chitty,
38; 2 H. Blackstone, 563, note a; M'Henry v. Ridgely, 2 Scam., 310; M'Connell
v. Thomas, ibid, 314; 2 Starkie, 318; 3 East, 400 to 409. If Hopestill Ross
had died, before judgment against Tucker and Sealey, the right of action upon
the note would have survived to the executor, and not to the administrator of
H. J. Ross. Toller on Ex., 431-2; 1 Williams on Ex., 556, 643, 656-7. Upon the
death of Hopestill Ross, her executor alone could proceed by scire facias,
upon the judgment. Toller on Ex., 441, 448, 450; 2 Saunders, 72 n.

Although it may be true, that if the note of Tucker and Sealey had been given
for a debt due to, or a liability in favor of H. J. Ross, in his life time, or
for a liability to the executrix, in her fiduciary right, a special action
might have been sustained in the name of the administrator de bonis non, yet
no such state of fact exists, or was pretended in this case. Catherwood v.
Charband, 8 Eng. Com. Law Rep., 46; King, etc. ex., Stephenson v. Thorn, 1
Term Rep., 487; Carne and wife v. Watts, 6 East, 408.

No evidence was given in respect to the solvency or insolvency of the estate
of H. J. Ross, and the judgment should have been made payable in the course of
administration, and not out of goods, etc., in the hands of appellant, to be
administered. Peck, Adm. etc., v. Stevens, 5 Gilman, 127. The judgment for
costs is erroneous. Rev. Laws, 558, sec. 101.

R. S. Blackwell, with whom was J. Grimshaw, for appellee:

The bill of exceptions is defective. It does not purport to contain all of the
evidence. 5 Gilm., 298. The exceptions were not taken at the time of the
trial. 3 Scam., 63. The record read by appellee in the court below, and
objected to by appellant, is not set out in the bill of exceptions. 5 Gilm.,
209. An administrator or executor can not retain under our laws. R. S., 561,
sec. 121. Paschall v. Hailman, 4 Gilm., 297, 301. The executor of Mrs. Ross
did not thereby become executor of the estate of Henry J. Ross. R. S., 541,
sec. 22. An administrator de bonis non possesses the same powers and rights,
and is subject to the same liabilities, as the original administrator. R. S.
1833, 636, sec. 71; Toller on Ex'rs, 243; Floyd v. Breckenridge, 4 Bibb, 14;
Bacon's Ab., title "Ex. and adm.," B 2 and 3. There is such a privity in law
between Grimshaw and Greene as will support this action. Hirst v. Smith, 7 D.
& E., 182. The judgment for costs in this cause is correct. Welch v. Wallace,
3 Gilm., 490; R. S., 556, sec. 95. There is no award of execution in this
case. The word levied means paid. 3 Gilm., 490; 5 ibid, 127.

If the judgment is informal, the proper judgment will be entered up in this
court. 1 Scam., 55, 110; 3 Scam., 63, 478; 1 Gilm., 491; 3 Gilm., 490.

Treat, C. J. It satisfactorily appeared in evidence, that the services of the
appellee were rendered for the benefit of the estate of Henry J. Ross. He was
retained by the executrix of the estate to prosecute a suit on a note made
payable to her, as executrix. The suit was brought and a judgment obtained in
her favor, as executrix. After her death, the judgment was collected, and the
money paid over to the appellant, as the administrator de bonis non of Henry
J. Ross. He treated the proceeds of the recovery as assets of the estate. It
is clear, therefore, that the note was, in fact, the property of the estate,
and did not belong to Mrs. Ross, in her individual right. The services were
performed for the estate, and not for Mrs. Ross personally. The estate
received the benefit of the services, and ought to make the proper
compensation. The appellee was employed on behalf of the estate, and had the
right to look to the estate for payment. The fact that he was retained by the
executrix, makes no difference. Her acts, rightfully done in her official
character, are binding on the estate, and any liability arising therefrom can
be enforced against the appellant. As the representative of the estate, he is
bound by the lawful acts of the executrix, in respect to the estate.

The judgment is not erroneous. It does not, as in the case of Peck v. Stevens,
5 Gilman, 127, and the cases there cited, award execution against the effects
of the estate. Nor is the appellant personally responsible for its payment. It
only liquidates and establishes a demand against the estate, which he is
required to pay in the due course of administration.

The judgment of the circuit court must be affirmed, with costs.

Judgment affirmed.


Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.