{
  "id": 5266252,
  "name": "In re Estate of George Wincox, Deceased",
  "name_abbreviation": "In re Estate of Wincox",
  "decision_date": "1899-12-05",
  "docket_number": "",
  "first_page": "613",
  "last_page": "623",
  "citations": [
    {
      "type": "official",
      "cite": "85 Ill. App. 613"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "77 Ill. 258",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        821830
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/77/0258-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T19:07:53.008228+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "In re Estate of George Wincox, Deceased."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding J ustic\u00e9 Horton\ndelivered the opinion of the court.\nWe 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. ,\nIt is contended on the part of appellant that the Circuit Court erred in setting this cause for trial out of its regular order. Ho statute is referred to and no case is cited to support this contention.\nThe 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., Ch. 110, Sec. 17.) Hnless 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. On the contrary, the conscientious judge who tried this case did his duty and should be commended therefor, not criticised.\nThere 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.\nOne of the items included in this appeal, and which was not allowed to appellant in his accounting, is the sum of $1,865 alleged by appellant to have been paid by him to Jennie Wincox as widow\u2019s award.\nAppellant 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\u2019s award or claims unless the law vested in him such authority.\nThe statute concerning the appointment of administrators to collect says that the appointment shall be \u201c to collect .and preserve the estate, of any such decedent until probate of his will, or until administration of his estate is granted.\u201d (Rev. Stat., Ch. 3, Sec. 11.)\nThe letters issued are that such an administrator may \u201c collect and secure \u201d the property of deceased \u201c so that the same \u201c may be preserved \u201d for those legally entitled thereto. (Sec. 12.)\nThe bond such an administrator is required by statute to give is conditioned that he shall \u201c deliver to the person or persons authorized by the court, as executor or administrator, to receive the same,\u201d all goods, etc., which shall come to his possession. (Sec. 13.)\nSec. 17 provides that:\n\u201c 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 when legal demand is made therefor, such persons so neglecting or refusing, * * * shall forfeit all claims to any commission for collecting and preserving the estate.\u201d\nTo what extent the Probate Court may authorize expenditures by an administrator to collect it is not important here to inquire, for the reason that that court did not enter any order authorizing appellant to make any expenditures whatever.\nNeither 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.\nMuch stress is placed upon the fact that appraisers were appointed by the Probate Court, who fixed the amount to be allowed as widow\u2019s 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\u2019s 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.\nAs we understand it the claim of appellant to be allowed $1,750 for attorney\u2019s 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\u2019s inventory was paid, $2,000, 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 indorsed. Whether these facts establish the crime of embezzlement, as urged by counsel for the administrator, we do not assume to determine.\nSaid $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\u2019s fees.\nIt seems that the whole amount of the proceeds of said note, except the $2,000 paid on account of M. Salomon\u2019s 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 repayment of said sum of $18,208.90, or any part thereof, or any security therefor. \u00a1Neither does it appear that he holds any note or security for the $2,000 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.\nIt was not error to disallow the claim of appellant as administrator for $1,000 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 (Oh. 3, Sec. 17) that \u201c 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 \u201d 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 any commissions.\nThe 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 can not be allowed in his accounting.\nThere 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\u2019s award $1,865, commissions to appellant $1,000, attorney fees $1,750, and claim of Mrs. Stowell $100. \u00a1Neither was there any error in charging appellant interest amounting to $1,534.25.\nIt is stated by attorney for appellant, in his printed argument, and it is emphasized by being there printed in italics, that \u201c not one cent has been unaccounted for.\u201d\nIt 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.\nThat argument is unique, when taken in connection with the facts of this case. The judgment of the Circuit Court is affirmed.",
        "type": "majority",
        "author": "Mr. Presiding J ustic\u00e9 Horton"
      }
    ],
    "attorneys": [
      "Frank A. Whitney, attorney for appellant.",
      "Bulkley, Gray & More, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "In re Estate of George Wincox, Deceased.\n1. Practice\u2014Advancing Oases on ilie Docket.\u2014A trial court may, in its discretion, for good and sufficient cause, direct that a case be advanced and tried out of the regular order on the docket \u2019(R. S., Oh. 110, Sec. 17), and unless it appears that there has been an abuse of discretion working manifest injustice, it will not be disturbed by a reviewing court.\n2. Administration of Estates\u2014Power of Administrators to Collect. \u2014An administrator to collect of the estate of a deceased person, is authorized only to collect and secure the property of the deceased until letters testamentary or of administration are issued.\n3. Same\u2014Power to Pay Debts and Claims.\u2014An administrator to collect has no authority to pay a widow\u2019s award, undertaker\u2019s services, attorney fees, physician\u2019s bills or the like, as charges against, the estate he represents.\n4. Same\u2014Authority.\u2014An administrator to collect has no authority except to collect and preserve the estate of the deceased until the probate of his will or until administration is granted.\n5. Same\u2014No Power to Discount Notes.\u2014An administrator to collect has no right or authority to sell notes of the estate, or to accept payment thereof before maturity.\nProceedings in Probate.\u2014Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.\nAffirmed.\nOpinion filed December 5, 1899.\nStatement.\u2014George Wincox died intestate December 10, 1893. Pending a contest over the validity of an alleged will made by the deceased, one Albert Ellinger, was, March 20, 1894, appointed administrator to collect of the estate by the Probate Court of Cook County, and he having resigned, the same court, December 1, 1894, appointed Joseph Salomon in his placeas administrator to collect, and letters were issued to Joseph Salomon that day.\nFebruary 8, 1897, Jesse Holdom was appointed administrator in due course by said Probate Court, and letters of administration \u25a0 issued to him. March 4, 1897,, Joseph Salomon, as administrator to collect, filed in said Probate Court his account with said estate, which is as follows: To the Hon. C. C. Kohlsaat, Judge of said Court:\nThe following is a full, true and complete account of all the receipts and expenditures of Joseph Salomon, administrator to collect:\nReceipts.\ncash.\nThis administrator charges himself as follows :\nReceived from Albert Ellinger, administrator to\ncollect....................................$ 6,857 02\nNOTE.\nReceived note mentioned in inventory in item 1. 20,000 00 Received five coupon notes thereto attached____ 3,000 00\nTotal.................................$29,857 02\nExpenditures.\nWidow\u2019s award paid Mrs. Jennie Wincox,\n(voucher 1)................................ $1,855 00\nRogerson & Son, undertakers,................. 145 00\nStenographer (voucher 3).. '.................. 5 00\nBulkley, Gray & More (vouchers 4, 5 and 6)..... 122 51\nMary \u00d3hman, nursing deceased (voucher 7).... 235 00\nPhysician in last illness....................... 20 00\nMrs. Stowell................................. 100 00\nAdministrator............................... 1,000 00\nAttorney\u2019s fees, subject to court\u2019s order......... 1,750 00\nTotal expenditures............ $5,030 65\nRecapitulation.\nTotal receipts...............................$29,857 02\nTotal expenditures......... 5,030 65\nBalance...............................$24,826 37\nRespectfully submitted,\nJoseph Salomon.\nThe above was duly verified by said Joseph Salomon.\nObjections to said account were filed by the heirs January 28, 1898. An order was entered by the Probate Court reciting that it appeared from the account of Joseph Salomon that there was due from him the sum of $24,826.37, and it was ordered that the said sum of $24,826.37, so admitted to be due, be paid to Jesse Holdom, administrator, upon demand, and that the further hearing upon the objections to the balance of the account be continued. From this order no appeal has been taken or prosecuted. February 9, 1898, the Probate Court, after hearing all of the parties in interest on the objections filed to said account, made the following order :\n\u201c And now, on this day, pursuant to the order entered herein on the twenty-eighth day of January, A. D. 1898, came on for further hearing the objections filed herein to the final account of Joseph Salomon, administrator to collect de bonis non of said estate, all parties being present in court, as heretofore recited in the said order of January twenty-eighth, aforesaid, and the court having diligently examined said account and heard oral and documentary evidence in relation to the several items thereof on the part of the said administrator as well as said objectors, and also having heard the arguments of counsel for the respective parties in interest, and the court, being now sufficiently advised in the premises, finds there is no evidence in this cause tending to show that said deceased left a widow him surviving; that the evidence does show that said Joseph Salomon has mismanaged said estate and its assets, sold the note of Kathrina Chatroop for $20,000, with its unpaid interest coupons, long before maturity, and on or about December nineteenth, A. D. 1895, and appropriated the proceeds thereof, together with the other money appearing from his account to have been by him received from Albert Eliinger, the former administrator-to collect, of said estate, to the individual use of himself and his attorney, Moses Salomon, and is not by reason thereof, entitled to any allowance for either administrator\u2019s commissions or attorney\u2019s fees, and that the same ought not to be allowed, and that said Joseph Salomon, by reason of the premises hereinbefore recited, and the statutes of this State governing like cases,-is chargeable with interest on all of said moneys from the time the principal note of Kathrina Chatroop for $20,000 matured, viz., February eighth,' A. D. 1897.\n\u201c The court further finds that as to the items of eighteen hundred and sixty-five dollars ($1,865), alleged to have been paid to one calling herself Jennie Wincox, as a widow\u2019s award, the item of one hundred dollars ($100) to Mrs. Stowell, and one thousand dollars ($1,000) retained by said Joseph Salomon as and for his fees and commissions as administrator, and the item of seventeen hundred and fifty dollars ($1,750), alleged to have been paid for fees of the attorney of said Joseph Salomon be and the same are disallowed, and the objections filed thereto sustained, and thereupon it is ordered that said items of $1,805, $100, $1,000 and $1,750, aggregating the sum of $4,715, be charged by said administrator against himself in a new account to be filed by him herein instanter, with interest thereon from February eighth, A. D. 1867, at the lawful rate of five per cent per annum, and said administrator failing so to do, the court doth here state such account for him and charges said items, aggregating said sum of $4,715 against him, said Joseph Salomon, together Avith interest thereon at the rate aforesaid, and doth find-that said Joseph Salomon, as such administrator of said estate, has now in his hands, of moneys belonging to said estate and Avhich are legally chargeable against him as such administrator, as folloAvs:\n\u201cAmount shown due by account filed and ordered by the court to be paid on January 28, 1898. .$24,826 37 Items to Avhich objections have been sustained as\naforesaid...........1...................... 4,715 00\nInterest on both of said amounts, aggregating $29.541.37, at five per cent per annum from February 8, 1897, to date.................. 1,477 06\nMaking a total amount of.................$31,018 43 which the court finds said Joseph Salomon as such administrator is chargeable with, and which sum is rightfully and equitably due from him to the estate of said George Win-cox, deceased. And as to the remaining objections filed herein the same are hereby overruled and disallowed.\n\u201c It .is therefore ordered by the court that said Joseph Salomon do pay forthwith unto Jesse Holdom, administrator of the-estate of said George Wincox, deceased, the said sum of six thousand* one hundred ninety-two and 6-100 dollars ($6,162.06) and that upon paying the same, together with said sum of $24,826.37, found due by order of January 28, 1898, aforesaid, and ordered thereby to be paid, he be discharged from further liability and the sureties on his official bond be released.\n\u201cThereupon the said Joseph Salomon prays an appeal to the Circuit Court of Cook County as to the items of $1,865, $100, $1,000 and $1,750, to Avhich the objections were sustained as aforesaid, and the item of $1,477.06 of interest, all of said items aggregating the sum of $6,192.06, Avhich is allowed on said Joseph Salomon giving bond with sufficient surety, to be approved by the court, in the penalty of twelve thousand three hundred and eighty-four dollars and twelve cents ($12,384.12), within twenty days from this date.\u201d\nA trial was had in the Circuit Court before Judge Clifford, without a jury, June 30, 1898, and the Circuit Court entered the following order :\n\u201c Now on this day, this cause coming on to be heard before the court without a jury, and the court having heard oral and documentary evidence on the part of all the parties to said cause, and also having heard the arguments of counsel for the respective parties in interest, and being now sufficiently advised in the premises, finds as a matter of law that the said item of $1,865, alleged to have been paid to one calling herself Jennie Wincox, as a widow\u2019s award, is not a proper credit in the account of the appellant, Joseph Salomon, administrator to collect, of the estate of George Wincox, deceased, and that therefore it is not necessary to hear evidence or pass upon the question of whether or not the said George Wincox left a widow in the person of the alleged Jennie Wincox, or whether or not said administrator to collect has paid said sum or any part thereof to the alleged Jennie Wincox. The court declines to hear any evidence and pass upon the question whether Jennie Wincox was the. widow of George Wincox.\n\u201c And the court further finds from the evidence introduced that said Joseph Salomon, appellant and administrator to collect, of the estate of George Wincox, deceased, has mismanaged said estate and its assets, disposed of the note of Kathrina Chatroop for $20,000, bearing six per cent interest, with its unpaid interest coupons, long before maturity, at a discount, and on or about December 19,1895, appropriated the proceeds thereof, together with other money, appearing from his account to have been received from Albert Ellinger, former administrator to collect of said estate, to the individual use of himself and his attorney, Moses Salomon, and of the Chicago Architectual Iron Works, a corporation in which they are officers and stockholders, and is not by reason thereof entitled to any allowance for either administrator\u2019s fees, commissions or attorney fees, and that the same ought not to be allowed, and that said Joseph Salomon, by reason of the premises hereinbefore recited, and the statutes of this State governing like cases, is chargeable with interest on all of said moneys from the time the principal note of said Kathrina Chatroop for $20,000 matured, viz., February 8, 1897.\n\u201c It is therefore ordered by the court that the finding and judgment of the Probate Court of Cook County, Illinois, be and the same is in all respects affirmed, and the said appellant, Joseph Salomon, administrator to collect, of the estate of George Wincox, deceased, is hereby ordered to account for and pay over to the appellee, Jesse Holdom, administrator of the estate of George Wincox, deceased, the following sums of money, viz.: $1,865 alleged to have been paid to a woman, calling herself Jennie Wincox; $1,000 claimed by said appellant for fees and commissions as administrator to collect; $ 1,750 claimed to have been paid for attorney\u2019s fees; $100 alleged to have been paid to Mrs. Stowell; together with interest upon all of said items from February 8, 1897, to date, and also upon the sum of $24,826.37 ordered by the Probate Court of Cook County to be paid by said administrator to collect on January 28,1898, and not appealed from, at the rate of five per cent per annum from February 8, 1897, to the date of said order, viz., January 28, 1898, said interest, all told, amounting to the sum of $1,534.25.\n\u201c It is therefore ordered by the court that the said Joseph Salomon, administrator to collect, of the estate of George Wincox, deceased, do forthwith pay unto Jesse Holdom, administrator of the estate of George Wincox, deceased, the said sum of $6,249.25, together with the costs.of this appeal in this behalf expended, to be taxed, and that this order be certified to the Probate Court of Cook County.\n\u201c Motion for new trial overruled^ and exception.\n\u201c And the said Joseph Salomon 'excepts to the foregoing and prays an appeal.\n\u201c Thereupon the said Joseph Salomon prays an appeal from the judgment of this court charging him with' said items of $1,865, $100, $1,000, $1,750, and the said interest item of $1,534.25, aggregating the sum of $6,249.26, to the Appellate Court of Illinois, within and for the First District thereof, which is allowed upon the said Joseph Salomon giving bond in the penal sum of $8,000, with sureties to be approved by the court, within twenty days from this date, together with his bill of exceptions herein, within sixty days from this date.\u201d\nFrom this last order this appeal is prosecuted.\nThe Circuit Court, on motion of the attorneys for Jesse Holdom, administrator, set the cause for hearing in ad- . vanee of many other cases then upon the docket of said Circuit Court.\nBefore the trial of said cause was commenced appellant moved the court to refer the same to a master in chancery to take an accounting, which motion was denied.\nThe Circuit Court also declined to hear testimony upon the question as to whether one Jennie Wincox was the widow of deceased.\nFrank A. Whitney, attorney for appellant.\nBulkley, Gray & More, attorneys for appellee."
  },
  "file_name": "0613-01",
  "first_page_order": 623,
  "last_page_order": 633
}