Union County IL Archives Court.....Thornton, V Smiley 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 27, 2008, 11:23 pm

Source: Reports Of Cases Illinois
Written: 1819-31

December Term 1820, VANDALIA

John Thornton and others, Appellants, v. George Smiley and John Bradshaw, 
Appellees.

APPEAL FROM UNION.

If one of two administrators, loans the money of the estate, he does it upon 
his own responsibility, and an action to recover it back, should be brought in 
his own name alone.

Smiley and Bradshaw, executed their note to Hezekiah West, as administrator of 
the estate of Weaver, deceased, for a sum of money, to recover which this 
action was brought in the name of said West and John Thornton and Mary his 
wife, late Mary Weaver, who were joined with West, in the administration on 
the estate of Weaver. The money was loaned by West alone, to Smiley and 
Bradshaw, and the note executed to him alone as administrator. An objection 
was made by defendants to the improper joinder of parties, which the court 
sustained, and gave judgment for the defendants. To reverse which, the 
plaintiffs appealed.

Opinion of the Court. The court knows of no power in the administrator, by 
virtue of the trust conferred on him by law, to loan the money belonging to 
the estate; if he does it, he acts upon his own responsibility, and renders 
himself liable to the estate. The note was made to West alone, and for that 
reason, the suit should have been commenced in his name, and a joinder of his 
co-administrators was improper, as no right of action, to recover the amount 
of the note, existed in them. Without determining any other question, for this 
ground alone, the court affirms the judgment. (a) (1)

Judgment affirmed.

------------------
(a) Vide Toller's law of executors, page 480. where it is declared, that in 
equity, an executor may be compelled to pay interest, if he suffers the money 
of the estate to lie idle in his hands. This would seem to authorize a loan, 
or any other investment of the trust money. An administrator is not liable to 
pay interest upon assets in his hands, unless under special circumstances. 
Dexter v. Arnold, et al, 3 Mason, 248. 

(1) Admitting that the administrator had no right to loan the money, how could 
the defendant take advantage of it? He executed his note to the plaintiff as 
administrator, and to him it was immaterial whether he was liable to the 
administrator personally, or in his representative character. Persons 
interested in the estate might, perhaps object that the administrator had 
transcended his duty, and might hold him responsible for it; but if they are 
content with his actions it is not easily perceived how the defendant can 
complain. In Marsh et al, v. The People, 15 Ill., 284, it was held that when 
three were appointed administrators, each was liable for the acts of the 
others. If we are right in the proposition that the defendant could not object 
that the note was not the property of the estate, then it would follow that 
each being liable for the acts of all the others, all would have a right to 
join in an action for the recovery of the money.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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