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or because of inferior quality of coal, or want of profit to justify operation, is not involved in this appeal, and upon that question we express no opinion.

[5] The court did not err in its second and third conclusions of law. Jordan v. Indianapolis Water Co., 159 Ind. 337-347, 64 N. E. 680; McDowell v. Hendrix, supra, 67 Ind. 518.

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FRAUDULENT CONVEYANCES-RIGHTS OF CREditors.

The rights given by Statute of Frauds (Hurd's Rev. St. 1911, c. 59) §§ 11, 12, 13, 14, to set aside fraudulent conveyances by

The amount of damages allowed is in ac- decedents are merely cumulative remedies, and cordance with the facts found.

We find no error in the record. Judgment affirmed.

(258 I11. 564.)

UNION TRUST CO. v. SHOEMAKER et al. (Supreme Court of Illinois.

April 19, 1913. Rehearing Denied June 5, 1913.)

1. REPLEVIN (§ 124*)-BONDS-EFFECT. Where a firm of three partners brought replevin, giving a bond signed by all, the death of one of the partners pending the action will not relieve his estate from liability; for the object of the bond was to indemnify the party interested at the time the judgment should be rendered, and the possible power of amendment and substitution of the action in the name of the surviving partners must be regarded as within the contemplation of the obligor.

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 487-497; Dec. Dig. § 124.*] 2. PARTNERSHIP (§ 247*)—LIABILITY OF PART

NERS.

Where three partners executed a replevin bond in order to maintain an action in favor of the firm, and one of them died pending the action, the estate of the deceased partner may, in equity, be resorted to in the first instance; and consequently a suit to subject his estate to the payment of the bond is not in the nature of a creditor's bill, so as to require judgment and execution at law as a condition precedent to the suit.

[Ed. Note. For other cases, see Partnership, Cent. Dig. 88 524-528; Dec. Dig. § 247.*] 3. EXECUTORS AND ADMINISTRATORS (§ 202*) -PRESENTATION OF CLAIMS.

Despite the provisions of Administration Act (Hurd's Rev. St. 1911, c. 3) § 67, providing that a claim not due may be presented and allowed with a proper rebate of interest, a contingent claim on a replevin bond, executed by the deceased, which could not be deter mined until the action was disposed of, is not a claim which can be presented and allowed. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 730, 738745, 748, 754, 763; Dec. Dig. § 202.*] 4. WILLS (8 847*)-PRESENTATION OF CLAIMS -NECESSITY.

do not enlarge or limit the prior remedies of a creditor to subject property in the hands of heirs, devisees, or legatees to the payment of demands due from a debtor.

[Ed. Note.-For other cases, see Wills, Cent. Cent. Dig. §§ 1660, 16602; Dec. Dig. § 847.*] 6. WILLS (§ 847*) DEBTS LIABILITY OF HEIRS, DEVISEES, AND LEGATEES.

Where, owing to the decision in an action of replevin, the estate of one deceased became liable on a replevin bond after administration was had and the property distributed, the assets in the hands of heirs or legatees may, in equity, be subjected to the payment of the liability; the heirs and legatees being constructive trustees, and the remedy being either the ancient bill for discovery or a bill for account.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2159-2164; Dec. Dig. § 847.*]

Error to Branch D, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Charles, M. Walker, Judge.

Action by the Union Trust Company against Charles W. Shoemaker and others. A decree for plaintiff was affirmed by the Appellate Court (172 Ill. App. 365), and defendants bring error. Affirmed.

John T. Richards, of Chicago, for plaintiffs in error. Kraus, Alschuler & Holden, of Chicago (M. M. Riley, of Milwaukee, Wis., of counsel), for defendant in error.

DUNN, C. J. This case comes to this court through the allowance of a writ of certiorari petitioned for by Charles W. Shoemaker, individually and as executor of the will of Elizabeth Shoemaker, to review a

judgment of Branch D of the Appellate Court for the First District affirming a decree of the circuit court of Cook county against the plaintiff in error, individually and as executor, together with Charles D. Bull, for the sum of $20,276.66, being the balance due on a judgment for $39,381.45 recovered by defendant in error on December 29, 1905, in the circuit court of Gogebic County, in the state of Michigan, against Edgar R. Van Buren and Charles D. Bull, surviving partners of Walter Shoemaker, doing business under the firm name of Antigo Lumber Company.

As the Administration Act (Hurd's Rev. St. 1911, c. 3) provides no method for the allowance of claims due upon a contingency, section 70, which, prior to the amendment of 1903 (Laws 1903, p. 3), declared that all On December 2, 1890, Walter Shoemaker, claims not presented within two years from Charles D. Bull, and Edgar R. Van Buren, the granting of letters should be barred, ex-partners doing business as the Antigo Lumcept as to estates not inventoried or ас counted for, will not, where administration ber Company, began an action of replevin in was. had in 1900 upon the estate of one li- the circuit court of Gogebic county, Mich.,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

against Wilson R. Stubbings and John J. and personal estate of the value of $95,000. McLaughlin. The sheriff, under the writ, In the enumeration of this personal estate took possession of a large amount of lumber was mentioned an undivided one-half inand delivered it to the plaintiffs, having terest in the partnership of A. D. Marriott first, in compliance with the Michigan stat- & Co. of an estimated value of $50,000. On ute, taken from them a bond, signed by September 28, 1904, the final account of the Walter Shoemaker on behalf of himself and executors was filed and approved, and they his partners, and by D. L. Plumer and Wal- were ordered discharged. The widow and ter Alexander as sureties, in the sum of son took the residue of the estate in equal $40,000, conditioned that if Shoemaker, Bull, shares, which amounted to more than the and Van Buren should prosecute the replevin amount here sought to be recovered. This suit to effect, and if the defendants should bill to enforce the payment of the judgment recover judgment against the plaintiffs, then, was filed December 28, 1906, against Charles if the plaintiffs should return the property, W. Shoemaker and Elizabeth Shoemaker, if the return thereof were adjudged, and individually and as executor and executrix should pay to the defendants all such sums of the estate of Walter Shoemaker, and as might be recovered by the defendants Charles D. Bull and Edgar R. Van Buren. against them, the obligation was to be void; In October, 1907, Elizabeth Shoemaker died, otherwise to remain in full force and effect. leaving a will, which was admitted to proDuring the pendency of the replevin suit, on bate, in which she devised her estate to her February 19, 1900, the defendant in error, son, Charles W. Shoemaker, and named him the Union Trust Company, became the own as executor. Letters testamentary were iser of the interest of the defendants in the sued to him, her death suggested, and he cause of action and the property replevied, was made defendant in her stead, as execuand was made a party defendant. On Au- tor. On November 7, 1907, the defendant in gust 18, 1900, Walter Shoemaker died in error received from Plumer and Alexander, Chicago. His death was suggested of record, the sureties on the replevin bond, $25,000. and the replevin suit was afterward carried On January 24, 1908, Van Buren was dison in the name of Bull and Van Buren, as charged in bankruptcy. The decree found surviving partners. In December, 1905, the that Charles W. Shoemaker, individually and replevin suit was tried, and a verdict was as executor of the will of Elizabeth Shoerendered in favor of the defendant in error, maker, and Bull were severally liable for finding that it was the owner of the property the total amount due, and dismissed the bill and entitled to the benefit of any recovery as to Van Buren because of his discharge had. The defendant in error having, in ac- in bankruptcy, and as to Charles W. Shoecordance with the Michigan statute, waived maker, executor of the will of Walter Shoethe return of the property replevied and maker, because all the assets had been ac prayed for a judgment for its value, the dam-counted for and paid out under the order of ages were assessed by the jury at $39,381.45, the probate court of Cook county. and judgment was rendered in favor of the defendant in error for that amount. An execution was issued and returned unsatisfied, and thereupon, in pursuance of the Michigan statute, the sheriff assigned the replevin bond to the defendant in error, authorizing it and its successors and assigns to recover any amount due upon the bond.

[1] Walter Shoemaker having died before judgment in the replevin suit, no judgment was rendered against him or his estate. It is insisted that therefore the judgment was not evidence against his estate of any liability, and that the circuit court erred in considering it. The basis of this proceeding was the bond, which was conditioned for the Walter Shoemaker left a will, by which he devised the residue of his estate to his payment of all such sums of money as might be recovered against the plaintiffs in the rewife, Elizabeth, and his son, Charles W. plevin suit. The judgment was evidence Shoemaker, in equal shares. On September 28, 1900, the will was admitted to probate that it was recovered in that suit, and was in the probate court of Cook county, Illinois, properly received and considered as fixing and letters testamentary were issued to the the amount which the bond bound the plainwidow and son. Notice to creditors was pub-maker did not change the liability of his es

tiffs to pay.

The death of Walter Shoe

lished, fixing the November term, 1900, as the time for the presentation of claims. No tate upon the bond. That was the same as claim was presented by the Union Trust his liability would have been if he had lived. Company or by its assignors, and no suit The judgment was rendered, not in favor of was brought by either against the executors the original defendants or against all the origprior to their discharge. On February 18, inal plaintiffs as individuals, but in favor 1901, the executors filed an inventory, show. of a substituted defendant and against the The substitution ing certain real estate in Ridgeland, Ill. surviving partners only. of the value of $1,000, an undivided one-half of the defendant in error was in accordinterest in certain real estate in South Da-ance with the statute. The plaintiff in the kota, of unknown value, the other undivided replevin suit was the partnership known as one-half being owned by A. D. Marriott, the Antigo Lumber Company. After Shoewho was the partner of Walter Shoemaker, maker's death the plaintiff was still in court

in the person of the surviving partners. | tor, unless he finds estate of the deceased The bond was given in contemplation of the not inventoried or accounted for. Stone v. ordinary course of judicial proceedings, Clarke, 40 Ill. 411; Dugger v. Oglesby, 99 in which the court may permit amendments Ill. 405; Snydacker v. Swan Land & Cattle changing the parties or otherwise amending Co., 154 Ill. 220, 40 N. E. 466; Mackin v. the proceedings, provided no new cause of Haven, 187 Ill. 480, 58 N. E. 448; Pearson v. action is introduced. The object of the bond McBean, 231 Ill. 536, 83 N. E. 173. That was to indemnify the party actually interest- Shoemaker's liability on the bond was coned at the time judgment should be rendered tingent is manifest; for there could be no against the wrongful prosecution of that sup- breach of the condition until judgment in posed cause of action, and the possible exer- the action, which was not until more than cise of the power of amendment and sub- two years after distribution and settlement stitution of parties must be regarded as of the estate. within the contemplation of the obligors when it was executed. Hanna v. International Petroleum Co., 23 Ohio St. 622; Becovitz v. Sapperstein, 46 Ind. App. 339, 92 N. E. 551; Bierce v. Waterhouse, 219 U. S. 320, 31 Sup. Ct. 241, 55 L. Ed. 237. The judgment in favor of the defendant in error was a breach of the bond, for which the obligors, including the estate of the deceased principal, were bound to answer.

[2] It is contended that equity is without jurisdiction of the bill, because it is in the nature of a creditor's bill or a bill of discovery, which will not lie until the remedy at law has been exhausted by the procuring of a judgment and execution. The bill is not, however, of that character, but is an original proceeding against the estate of a deceased partner to enforce his liability upon a partnership contract, in which case the estate is primarily liable in equity, which may be resorted to in the first instance. Doggett v. Dill, 108 Ill. 560, 48 Am. Rep. 565; Mason v. Tiffany, 45 Ill. 392; Ladd v. Griswold, 4 Gilm. 25, 46 Am. Dec. 443; Nelson v. Hill, 5 How. 127, 12 L. Ed. 81.

[3] Walter Shoemaker's estate having been finally settled more than two years before the filing of this bill without any claim having been presented against his estate, plaintiff in error insists that the claim is barred by section 70 of the Administration Act (Hurd's Rev. St. 1911, c. 3), except as to property not inventoried. That section, prior to its amendment in 1903 (Laws 1903, p. 3), by its seventh clause, provided that all demands not exhibited within two years from the granting of letters should be barred, except as to estate not inventoried or accounted for. Section 67 provides that a claim not due may be presented and allowed, with a proper rebate of interest. This section refers only to claims on which there is an absolute liability, though the time of payment is postponed, but has no reference to claims dependent upon a contingency which may or may not ripen into a liability. The holder of a claim of the latter class is not a creditor of the estate under the statute, and cannot have his claim allowed. If his claim remains contingent during the whole of the two years allowed for the exhibition of claims against the estate, he cannot participate in the distribution by the administra

[4] It does not follow, however, because the claim may not share in the distribution by the administrator, that the holder is barred from pursuing the assets, real or personal, into the hands of the heirs, devisees, or legatees. Such conclusion would follow if the claim had been of such a character that it could have been presented to and allowed against the administrator. The law having given a remedy in such case, it must be pursued. But the limitation established by section 70 of the statute is not a general limitation upon all remedies against the property of deceased persons. The Administration Act is a specific act adopted for the particular purpose of facilitating the early settlement of the estates of deceased persons. Waughop v. Bartlett, 165 Ill. 124, 46 N. E. 197. Demands against such estates must be exhibited within two years from the grant of administration; but where the demand is of such a nature that it is during all of such period of two years merely a contingent liability, and not a fixed obligation of the estate, it cannot be allowed or considered in the settlement of the estate by the administrator. This limitation, which has been reduced to one year by the amendment of 1903, does not, however, apply to actions against heirs, devisees, or legatees to subject property of the estate received by them to the payment of contingent liabilities of the deceased. Such actions, if otherwise maintainable, are subject only to the general statute of limitations. Ryan v. Jones, 15 Ill. 1; Dugger v. Oglesby, supra; Snydacker v. Swan Land & Cattle Co., supra; Mackin v. Haven, supra; Morse v. Pacific Railway Co., 191 Ill. 356, 61 N. E. 104.

[5] Sections 11, 12, 13, and 14 of our statute of frauds (Hurd's Rev. St. 1911, c. 59) provide certain remedies for creditors against the heirs and devisees of deceased persons, but they were not available to the defendant in error, because there was no deficiency of personal assets. This suit is not brought and could not be maintained under those sections or either of them. If maintainable at all, it is under the original jurisdiction of the court of chancery over the estates of deceased persons, whereby that court could reach property that should be applied to the payment of debts. The remedies given by the statute were intended to enlarge, and not

to take away or limit, the remedies thereto- [ of equity; but where distribution had been fore existing. Former remedies were not superseded, but additional and cumulative remedies were created. Mackin v. Haven, supra. If creditors had the right, in the absence of the statute, to compel legatees to refund, the statute has not deprived them of that right.

*

[6] On this subject it is said by Justice Story (1 Eq. Jur. § 92): "Legatees are always compellable to refund in favor of creditors, because the latter have a priority of right to satisfaction out of the assets." And again (volume 2, § 1251): "Another illustration of implied trusts may be found in the common case of a suit in equity by a creditor of an estate to recover his debt from legatees and distributees who have received payment of their claims from the executor acting by mistake, but bona fide and without fault, before a due discharge of all debts. * He has a clear right in equity, in such case, to follow the assets of the testator into their hands as a trust fund for the payment of his debt. The legatee and distributee are in equity treated as trustees for this purpose, for they are not entitled to anything, except the surplus of the assets after all the debts are paid." In Noel v. Robinson, 1 Vern. 90, and Newman v. Barton, 2 Vern. 205, it is stated that the common justice of the court will compel a legatee to refund, and that a creditor shall follow the assets in equity into whosoever's hands they come. The administration and settlement of estates is an acknowledged branch of jurisdiction of courts of chancery in appropriate cases. Vansyckle v. Richardson, 13 Ill. 171; Vanmeter's Heirs v. Love's Heirs, 33 Ill. 260; Elting v. First Nat. Bank, 173 Ill. 368, 50 N. E. 1095. It is an established doctrine of equity that creditors who have not been guilty of laches may pursue the assets into the hands of the distributees, where distribution has been made without discharging their debts. Public Works v. Columbia College, 17 Wall. 521, 21 L. Ed. 687; Williams v. Gibbs, 17 How. 239, 15 L. Ed. 135; Continental Nat. Bank v. Heilman (C. C.) 81 Fed. 36; David v. Frowd, 1 Myl. & K. 200; Sawyer v. Birchmore, 2 Myl. & Cr. 612.

made another creditor could not ask for a return of the money or a proportional part from the distributees if he had received notice of the proceedings, or had been guilty of laches or unreasonable delay. Public Works v. Columbia College, supra. No question can exist of the validity of the excuse for the failure of the defendant in error to present its claim to the administrator before distribution, or of the equity of the position that the legatee, who is a volunteer, should not retain the property of the estate while a creditor goes unpaid.

Since the personal property received by each of the legatees exceeds the amount of the decree, it is unnecessary to consider the questions argued in regard to the real estate in Illinois and South Dakota. The decree was right. It is affirmed. Decree affirmed.

(88 Ohio St. 61)

HUPP et al. v. HOCK-HOCKING OIL &
NATURAL GAS CO.
(Supreme Court of Ohio. May 6, 1913.)

(Syllabus by the Court.)

1. CONSTITUTIONAL LAW (§ 14*)-CONSTRUC

TION.

Such interpretation will be given to a provision of the Constitution as will promote the object of the people in adopting it, when such object is clearly indicated in the context, and to this end narrow and technical definitions of particular words will be disregarded.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 11; Dec. Dig. § 14.*] 2. COURTS (§ 203*)-APPELLATE COURTS-JuRISDICTION-REVOCATION BY CONSTITUTIONAL AMENDMENT.

Rights to invoke the jurisdiction of courts of review, which are secured to litigants by valid laws in force during the progress of a litigation, will not be held to have been afterwards revoked by amendment, unless by express language or by provisions from which it must follow by necessary implication that such result was intended.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 203.*]

3. COURTS ($ 240*)-APPELLATE COURTS-JU

RISDICTION-REVOCATION BY CONSTITUTION-
AL AMENDMENT.

The amendments-sections 2 and 6 to ar-
ticle 4 of the Constitution-adopted September
the same election, went into effect January 1,
3, 1912, and which, by the schedule adopted at
1913, do not revoke the jurisdiction of the
Supreme Court to review cases decided by the
circuit courts prior to January 1, 1913, in
which the petition in error
Supreme Court after that date in accordance
was filed in the
with the laws in existence at the time of the
decision by the circuit court.

Although no action at law lies, or ever did lie, against distributees of personal property, whether legatees or heirs, for a debt of the ancestor, the ancient remedy by a bill in equity for a discovery, if necessary, and an account of assets received applicable to the payment of the decedent's debts, still continues. This jurisdiction had its origin not only in the general authority over trustees [Ed. Note.-For other cases. see Courts, Cent. and trusts, but in the imperfect and defec- Dig. §§ 708-711, 715, 716; Dec. Dig. § 240.*] tive power of the ecclesiastical courts. It Error to Circuit Court, Hocking County. was sufficient that a debt existed against the Action between one Hupp and others and estate of a decedent, and that there was the Hock-Hocking Oil & Natural Gas Comproperty which should be applied to its pay-pany. From an adverse judgment, the parment to justify the interposition of the court ties first named bring error, and defendant *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

in error moves to dismiss. ruled.

“A

Motion over- Under the authority therein conferred, section 12250, General Code, was enacted: judgment rendered or a final order made by a circuit court or a judge thereof, court of common pleas or a judge thereof, probate court, insolvency court or a superior court or a judge thereof, may be reversed, vacated or modified by the Supreme Court, on a petition in error, for errors appearing on the record.” Pertinent parts of the amended sections 2 and 6 are as follows: "Sec. 2. All cases pending in the Supreme Court at the time of the adoption of this amendment by the people shall proceed to judgment in the manner provided by existing law. "Sec. 6. * * The Courts of Appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective Courts of Appeals, and the Supreme Court, as now provided by law, and cases brought into said Courts of Appeals after the taking effect hereof shall be subject to the provisions hereof, and the circuit courts shall be merged into, and their work continued by, the Courts of Appeals. *

The original action was commenced in the common pleas of Hocking county, and passed to judgment in that court in April, 1912. The case was appealed to the circuit court, where judgment was rendered December 30, 1912. Plaintiffs in error filed their petition in this court February 17, 1913, to reverse the judgment of the circuit court. Defendant in error has filed its motion to strike from the files and dismiss the petition in error, "for the reason that the Supreme Court has no jurisdiction to review the judgment of the circuit court of Hocking county entered therein on December 30, 1912, this proceeding in error not having been commenced prior to January 1, 1913." A number of similar motions in other cases have been filed, in which the same question raised in the motion in this case is presented. All of these motions are considered together. The various counsel in the different cases have submitted briefs touching the question involved, all of which have been considered. W. E. Sykes, of Marietta, H. M. Whitcraft and C. V. Wright, both of Logan, A. D. Metz, of Wooster, J. W. Campbell, of Cambridge, Joseph P. Owens, of Bluffton, J. J. Weadock, of Lima, Welty & Downing, of Bluffton, Thomas E. Powell and Edward T. Powell, both of Columbus, E. L. Mills, of Canton, Carl Norpell, of Newark, David Fording, of Alliance, Armstrong, Light & Shappell, of Lima, and M. B. & H. H. Johnson, of Cleveland, for plaintiffs in error. M. A. Daugherty, of Lancaster, B. F. McDonald, of Newark, Walter C. Ong, of Cleveland, Charles E. Ballard, of Springfield, George W. Mannix, Jr., and D. W. Bowman, both of Greenville, W. N. King, of Lima, E. D. Davis, of Columbus, Joseph Gallagher, of Smithville, Joseph O. Fritz, of Wooster, Grosvenor, Jones & Worstell, of Athens, Sheets & West, of Columbus, and Owen & Ware and Waite & Deaton, all of Urbana, for defendant in error.

JOHNSON, J. (after stating the facts as above). The ground of the motion is that the amendments, sections 2 and 6 to article 4 of the Constitution, adopted by the people at the election held in September, 1912, and which, by the schedule adopted at the same election, went into effect January 1, 1913, deprive this court of jurisdiction to review cases decided by the circuit court prior to January 1, 1913, in which the petition in error was filed in this court after that date. Prior to the adoption of the amendments referred to, section 2 of article 4 of the Constitution contained the provision: "It [the Supreme Court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, and such appellate jurisdiction as may be provided by law."

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The schedule provides: "The several amendments passed and submitted by this convention when adopted at the election shall take effect on the 1st day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith, shall continue in force until amended or repealed: Provided that all cases pending in the courts on the 1st day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law. Any provision of the amendments passed and submitted by this convention and adopted by the electors, inconsistent with, or in conflict with, any provision of the present Constitution, shall be held to prevail."

It is insisted that inasmuch as the judgment of the circuit court was rendered prior to January 1, 1913, and the petition in error was not filed in this court before that date, it was not then a "pending case," and, therefore, not within the saving provision of section 6, that: "All pending cases and proceedings in the circuit court shall proceed to judgment and be determined by the respective Courts of Appeals, and the Supreme Court, as now provided by law." Was it the intention of the people, when they adopted the amendments above referred to, to withdraw from the Supreme Court jurisdiction to review judgments, such as described, and which it exercised under original section 2 and section 12250, General Code, above quoted?

[1] The duty of the court, and its only proper purpose, in the construction of these amendments, is to ascertain and give effect

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