#### Fred W. Hapke, Adm’r, v. People of the State of Illinois, for use, etc.

Administration—Questions of Law and Fact—Trial by Jury—Administrator’s Account—Payment after Two Tears—¡Statutory Bar.

1. The question whether an amount paid by an administrator out of assets in his hands should be placed to his credit, is one of law and not of fact, and it should not be submitted to a jury.

2. In proceedings to compel an administrator to settle his account wherein he claimed as a credit an amount paid by him out of assets belonging to the estate upon a claim which had never been filed or allowed against it, this court sustains the order of the court below, allowingsuch portion of the payment as was paid within two years after the issue of letters of administration.

[Opinion filed January 10, 1889.]

Appeal from the Circuit Court of Randolph County; the Hon. Amos Watts, Judge, presiding.

Mr. John Miohan, for appellant.

Mr. H. Clay Hobneb, for appellee.

An administrator can not pay a claim after two years from grant of letters and get credit for it. Harris v. Willard, 17 Ill. App. 512; S. C., 119 Ill. 195.

*547A jury can not be insisted upon as a matter of right in an accounting in Probate Court. It is 66 the court ” that must adjust these accounts, and it acts as does a court of equity in these matters of accounting. Sec. 113 R. S., Ch. 3; Mack v. Woodruff, 87 Ill. 574.

In stating an account the Probate Court and the Circuit Court on appeal sit as courts of equity and a jury in stating such account would be as much out of place as in a partnership accounting. Mack v. Woodruff, 87 Ill. 574. The case cited by appellant from 52 Ill. 316 is governed by R. S. Ch. 3, Sec. 60; Heward v. Slagle, 52 Ill. 336.

The administrator must make every defense and must at his jDeril insist upon statutes of limitations. McCoy v. Morrow, 18 Ill. 524; Langworthy v. Baker, 23 Ill. 491. The case of Harris v. Millard, 17 Ill. App. 513, seems to be decisive of this case. The case appears also in 119 Ill. 195. The County Court and Circuit Court in this case were guided by that ease, and allowed the administrator credit for all that was .paid within two years (S248) and refused all payments afterward made ($499.99). If the payment of a few cents on a large claim could save the limitation we will soon find creditors getting a small payment within two years and holding back their claims to get the contract rate of interest where a judgment would cut them down to the legal rate. No one will contend that the administrator can pay off a claim that is actually barred when he pays it off, and get credit for it. He can not revive a dead claim. For a like reason a payment of part within" two years will not enable him to save the bar as to the residue.

The law requires more than simple notice to the administrator of the existence of the claim. This was the law prior to 1872. The act of 1859 (L. 1859, 93—4) was an abortive attempt to correct the delays growing out of the old law. See Wells v. Mills, 45 Ill. 35. The act of 1872 is imperative and bars all claims not “ exhibited to the court within two years,” etc. R. S. Ch. 3, Sec. 70. The object of this law is that there shall be an adjudication within two years or decisive steps taken by suing on the claim. See People v. Brooks, 22 Ill. App. 597. Notice to the administrator is no *548longer enough. His own claim is barred if he does not “ exhibit it to the court.” The language of Sec. 72, “ he shall tile his demands as other persons,” is very plain. See Harris v. Millard, 17 Ill. App. 512.

Green, P. J.

On November 20, 1882, appellant was appointed administrator with the will annexed, of the estate of Hannebutt, deceased, and Louisa Bolling, sole legatee, having instituted proceedings against him in the County Court of Randolph county to compel him, as administrator, to make a settlement of said estate, he appeared and filed his report July 13, 1887, and among other items therein claimed and asked to be allowed as a credit §747.99, paid by him out of assets of said estate in his hands to the payees of a promissory' note for §600, dated August 8, 1882, payable one year after date, with eight per cent, interest, by said Hannebutt and himself,, which had never been tiled, or allowed as a claim against said estate. The County Court, by its order, allowed but §248 of the sum he so claimed as a credit, and he thereupon took an appeal to the Circuit Court, and there demanded a trial by jury, which was refused, and upon the hearing the court allowed him §248 as a credit, and disallowed the balance of the §747.99 so claimed.

But two errors are assigned, viz.: The refusal of the court to allow a trial by jury, and its refusal’ to allow appellant as a credit the whole sum of $747.99 paid by him on said note.

The County Court and Circuit Court, on appeal, determine cases of this character without a jury. The question here involved was one of law, not of fact; the amount paid by appellant out of assets in his hands as administrator was not in dispute, but it was denied he had a legal right to be allowed the whole amount as a credit. The Circuit Court did not err in refusing the demand for a jury trial. Heward v. Slagle, 52 Ill. 316; Mack v. Woodruff, 87 Ill. 574.

The court did not err, either, in allowing no more than §248 as a credit upon appellant’s account as administrator. This sum was paid on said note within the period of two years next after he took out his letters of administration, at the *549expiration of which period said note, never having been exhibited as a claim against said estate, was barred except as by the statute; the balance of the' sum claimed and disallowed was paid after that period of two years had' elapsed and was then wrongfully paid by appellant out of assets of the estate in his hands; he should have resisted the payment of it and insisted on the bar of the statute as a defense if it had been presented as a claim after the two years had expired. McCoy v. Monow, 18 Ill. 524; Unknown Heirs of Langworthy v. Baker, Adm’r, 23 Ill. 491.

Had appellant p>aid the whole sum before the two years liad expired a different question would be presented; but he is not entitled under the facts proven to a credit for a larger sum than the court allowed him. Harris v. Millard, 17 Ill. App. 513; Same v. Same, 119 Ill. 195.

The order of the Circuit Court is affirmed.

Order affirmed.