Curry v. People

Citations

• 54 Ill. 263

Syllabus

<p>1. Pleading—description of instrument sued upon. In pleading written instruments, they may be described according to their legal effect.</p> <p>2. Same—in suit against a part of severed, obligors in an administrator's bond. Under the sixty-ninth section of the statute of wills, suits on administrators’ bonds may be against all or any one or more of the obligors named therein; so in an action on such bond signed by four parties, and but two are sued, it is only necessary to describe it in the declaration as having been executed by the defendants, that being the legal effect given to the bond.</p> <p>3. Variance between allegations and proofs—waiver. In an action for the use of a creditor, upon an administrator’s bond, the claim was described in the declaration as having been allowed in the probate court in favor of such creditor, when the record given in evidence showed the allowance was in favor of another person for the use of the creditor: Hdd, that while there might be a technical variance, it was waived by a failure to object to the testimony on the trial.</p> <p>4. Devastavit by an administrator—evidence thereof. Where an administrator, on the sale of property belonging to the estate, received the notes of the purchasers with security, and it resulted that the principals and sureties were insolvent, this will show, prima facie, that the administrator had neglected his duty, and was guilty of a devastavit.</p> <p>5. Same—who may have a remedy therefor. In an action upon an administrator’s bond, at the instance of a creditor, a prima facie right of recovery exists, if it appear that the person for whose use the suit is brought holds a claim against the estate, and that the administrator has been guilty of a devastavit to the extent of such claim. It is not essential to such right of recovery that the creditor shall prove there were no assets to which he could resort for the satisfaction of his claim.</p> <p>6. Nor are the court prepared to hold that, even if t