Potter v. Peeples

Citations

• 92 Ill. 430

Syllabus

<p>1. Surety—discharge under the act of 1877-—construction of the statute. The act of May 11, 1877, providing for the discharge of any surety on the bond of any “ trustee of any fund or property appointed by any court,” upon application by petition to the court in which such bond is filed, applies only to cases where the trustee shall be appointed by the court,—and was not intended to embrace cases where the trustee may be appointed by act of the parties, and gives bond with sureties that he will faithfully execute the trust.</p> <p>2. In this case several heirs of a deceased person, in the adjustment of a dispute betxveen them in respect to the division of the property, executed an agreement wherein it was provided that a certain portion of the estate should be placed in the hands of a trustee, to be held, used and controlled by him for the benefit of certain of the heirs named. The agreement further provided, that if the parties should be unable to agree as to who should act as trustee, the “judge of the Gallatin circuit court” should appoint the trustee. The parties failing to agree, the then presiding judge of that court made the appointment, the person appointed executing bond with sureties, which was filed in the office of the clerk of the court mentioned. It was held the appointment was not made by the court, in its judicial capacity; but by the judge of the court, in pursuance of the agreement of the parties, and therefore the case was not within the statute so as to enable the sureties to apply to the court for a discharge from their liability on the bond.</p>