Wolf v. Beaird

Citations

• 123 Ill. 585
• 15 N.E. 161

Syllabus

<p>1. Action—to recover back money paid by mistake. Money paid by one to another by a mutual mistake of facts in respect to which both were equally bound to inquire, may be recovered back in assumpsit, under the count for money had and received.</p> <p>2. Same—oyer-payment by an executor or administrator—as, being in excess of pro rata distributive share. Where an administrator or executor, under the honest belief that the estate is solvent, pays a creditor in excess of his pro rata distributive share, he may recover back the over-payment in an action for money had and received for the use of the estate, and, after final settlement, for his own use. In such case it matters not to the defendant whether the plaintiff sues in his representative capacity or in his individual name.</p> <p>3. A recovery of an over-payment made by an executor, after his final settlement, will be for his own use, although he may have sued in his representative capacity. If sued by the heirs of the testator, he can plead as a set-off the sum advanced by him to the estate to make up the over-payment.</p> <p>4. Before the expiration of two years from the grant of administration upon an estate, the executor paid a claim in full, in the belief that the estate was solvent, and in ignorance of the existence of two other large claims, which, within the two years, were presented and allowed. On final settlement it was found that the assets would pay only sixty-one per cent of the seventh class claims. The creditor so paid in full died testate, and the executor of the first estate, in his representative capacity, filed his claim against the estate of the latter to recover back the over-payment. Before the final hearing of this claim, on appeal, the executor of the first estate made a full settlement of his administration, and was discharged: Held, that his right of action accrued upon his payment of the claim in full, and that upon his final settlement the over-payment was recoverable for his individ