Curry v. Mack

Citations

• 90 Ill. 606

Syllabus

<p>1. Surety—released by failure to present claim against estate of principal. The statute of March 4, 1869, which provides that the surety upon a joint note shall be released by a failure of the holder to present the same to the proper court for allowance against the estate of the principal, upon his death, within two years after the grant of letters, i’s not a mere statute of limitation, but enters into and forms a part of the contract.</p> <p>2. Same—what law governs as to mode of presentation. Where the principal in a joint note executed while the act of March 4, 1869, was in force, dies before payment and after the mode of presenting claims for allowance against estates has been changed, the holder must present the note for allowance against the estate of the principal, in accordance with the later law, within two years after the grant of letters, or the sureties on the note will be released.</p> <p>3. Judgment—conclusive only upon parties and privies. A judgment of the county court allowing a claim against an estate, to be paid in the due course of administration, is conclusive only on the parties to it that the claim was presented within two years after the grant of letters, but is not upon the sureties to a note which is thus allowed, and they may show that it was not, in fact, presented to the court within that time, and thus discharge themselves from liability.</p> <p>4. Where the record of the county court shows that a copy of a note was filed as a claim against an estate with the clerk on December 9, 1874, more than two years after the grant of letters, and the recital in the judgment of its allowance is, that the claim filed of that date was presented, this will show that this was the time when the claim was first presented, and the sureties will be released, under the act of 1869, in the absence of any other evidence as to.the time of presentation.</p>