12 Pac. 382, in discussing the effect of our statute amending the common-law rule, and of the right of an executor de son tort to be credited with payments which he may have made that are tantamount to a due administration of a decedent's estate, says: "The person who intermeddles with the goods of the deceased is now only responsible to answer in an action to the rightful executor or administrator. And whether we consider the intermeddler as an executor de son tort or as a wrongdoer, the liability to respond to the rightful executor or administrator is the same, and unaffected, and the law unchanged. The fiction of office may be gone, but the unauthorized act of intermeddling remains, to be dealt with judicially, according to the principles of right and justice, as applied by the law in such cases. Now, from the fact that the intermeddler with the goods of a deceased is only liable to respond to the rightful executor or administrator for the value of the goods, etc., it by no means follows, if what he did was of benefit, and not injury, to the estate-as the payment of funeral expenses, or debts of the deceased, or charges such as the rightful representative might have been compelled to pay-he would not be allowed to show the same in mitigation of damages in an action of trover, instituted by such executor or administrator. In thus com- LA W pelling him to account with only the rightful representative the stat- WHERE EX D ST ute does not purport or undertake to deprive him of any proper or COLISHED legitimate defense. The title of executor de son tort may be repudiated, but the justice of the law will remain, to distinguish between acts which are beneficial and those which are injurious to an estate." We think Slate had an adequate remedy, in the law action instituted by Henkle against him, to recoup against the claim for damages caused by his intermeddling all payments made by him that necessarily conduced to the benefit of his mother's estate. There are some items, however, in his claim, as disclosed by the cross-bill, that could never have been of any advantage thereto. Thus the sums paid to, MS the surety company for responsibility assumed on Slate's undertaking. and also the appraisers' and justice's fees [for administering oaths to appraisers]./\The sum paid on account of attorney's fees was no advantage, unless the service rendered was in preserving the property of the estate; certainly not in the ordinary settlement thereof, or in defending in the former suit. The sum of $100 claimed by Slate [for services performed in caring for the decedent's property from May 6, 1900, to March 3, 1902] should not be allowed, unless his service, like that of his attorneys, was performed in preserving or caring for the property, resulting in a benefit thereto. He is not entitled to any sum whatever as administrator's fees, and if the county court appointing him had allowed and he had secured the sum prescribed by law as compensation in such cases, as he was only a de facto representative of the decedent's estate the de jure administrator could have recovered such fees from him, for the rule is almost universal that COULD SAME WHICH NOT an officer de facto is liable to an officer de jure for emoluments of office after ouster. Throop, Pub. Officers, §§ 256, 523, 663. * * In the case at bar Slate was interested in the estate of his mother. and therefore not a volunteer, and, as he could have interposed the defense indicated in the law action, an error was committed in overruling the demurrer. The decree will therefore be reversed, the demurrer sustained, and the cross-bill dismissed.** IN SOLVENT RECOVER DIFFERENCE SUPPOSITION - CATER SECTION 6.-REFUNDING BY CREDITORS HELD WOLF v. BEAIRD et al. (Supreme Court of Illinois, 1888. 123 Ill. 585, 15 N. E. 161, 5 Am. St. Rep. 565.) MAGRUDER, J. Edward J. French died testate on March 3, 1880. This will was admitted to probate in the county court of Richland county, and letters testamentary were issued to the appellant, John Wolf, as the executor thereof, on March 8, 1880. The county court allowed two claims against French's estate, one on May 18, 1880, and another on August 17, 1880, in favor of John B. Gharst. During the first year of the administration Wolf had money enough on hand to pay in full all the claims filed against the estate before the end of that year. He paid Gharst 30 per cent. of his two claims on August 17, 1880, and he paid him the balance of such two claims on October 15, 1880. On the latter date Gharst's total claim against the estate was paid in full. At the time Wolf paid Gharst's claim in full, he and Gharst both believed that French's estate was solvent, and would not only be able to pay all the debts, but would have a surplus for the heirs. Both parties acted in good faith, the executor in paying, and the creditor in receiving, the full amount of the claim. If the claims hereafter mentioned, which were not known to exist. at that time, had not been filed, the surplus would have amounted to $1,800. Two large claims were allowed against the estate, one on June 20, 1881, in favor of Robert Allyn, trustee, and another on June 21, 1881, in favor of Lucy French, which made the estate insolvent as to the payment of claims of the seventh class. By the allowance. of these latter claims, the assets were so reduced that the estate was 20 In Bradley v. Com., 31 Pa. 522 (1858), it was held that letters of administration issued on a bond executed by only one surety, when the law required two or more, were void, and that the woman acting under them "became administratrix of her own wrong." But see Steele v. Tutwiler, 68 Ala. 107 (1880). only able to pay 61.72 per cent. of the claims of the seventh class, to which the Gharst claim and the Allyn and Lucy French claims all belonged. It thus turned out that Gharst had been overpaid by the amount of the difference between 100 per cent. and 61.72 per cent. Gharst died testate on September 4, 1881, and the appellees are the executors under his will. Wolf, as executor of the estate of E. I. French, deceased, filed a claim against Gharst's estate, in the county court of Richland county, for the excess of the amount so paid to Gharst over the pro rata share to which he was properly entitled. On June 20, 1882, this claim of Wolf against Gharst's estate was allowed by the county court, and an appeal was taken to the circuit court, where the case was tried before the circuit judge, without a jury, by agreement. The circuit court ordered that the claim be allowed as a seventh class claim, to be paid in due course of administration, and directed that its order be certified down to the county court for payment. The case was then taken by writ of error to the Appellate Court, which, at its February term, 1886, reversed the judgment of the circuit court, and remanded the cause. A second trial was had before the circuit judge without a jury, at the November term, 1886, which resulted in a judgment in favor of appellant against appellees. This judgment has been brought before the Appellate Court a second time, and has been again reversed. It now comes before us by appeal from the Appellate Court, and upon certificate that the case involves a question of law of such importance, on account of collateral interests, that it should be passed upon by the Supreme Court. Both Wolf and Gharst knew, or were bound to know, that, under the law, Gharst could not lawfully receive his claim in full out of the assets of the French estate, unless those assets were sufficient to pay all claims of the same class with his own. There was a mutual mistake of facts in respect to which both parties were equally bound to inquire. They both believed that the assets were sufficient to pay the claims in full, and acted upon such relief; but both were mistaken in regard to the fact. "Money paid by one party to another, through a mutual mistake of facts, in respect to which both were equally bound to inquire, may be recovered back." Bank v. Bank, 1 Hill (N. Y.) 287; Wheadon v. Olds, 20 Wend. (N. Y.) 174. "The count, for money had and received, is also maintainable for the recovery of money paid under a mistake, on the part of the payer, of a material fact." 2 Chit. Cont. (11th Ed.) 928; 1 Chit. Pl. 355; Bank v. Mitchell, 88 Ill. 52; Stempel v. Thomas, 89 Ill. 147. Wolf was mistaken in a material fact. If he had not been mistaken in the fact, which he supposed to exist, that the assets were sufficient to pay the claims in full; in other words, if the assets had been sufficient to pay the claims in full, he would have been liable to pay Gharst the 38.28 per cent. so paid to him by mistake. The filing of HERE COMINAL AS EXE the claim by Wolf against Gharst's estate was in the nature of an equitable action for money had and received, or money paid under a mistake of fact. If Wolf could have brought an action of assumpsit against Gharst in the latter's lifetime, for the excess of the payment over the proper pro rata share, then a claim for such excess was a proper claim to be filed against Gharst's estate, so far as the nature of the demand is concerned. It was held in Rogers v. Weaver, 5 Ohio, 536, that an administrator, who, under the supposition that the estate was solvent, had paid a creditor beyond his distributive share, might, upon final settlement, recover back the difference in an action for money had and received. See, also, Walker v. Hill, 17 Mass. 380. When this case was tried a second time before the circuit judge, at the November term, 1886, it was proven, that appellant had filed his final report, as executor, on July 15, 1886, and had been discharged by the county court. The order of the county court, entered at date, found that the assets were only adequate to pay 61.72 per cent. of the claims of the seventh class; that the estate was insolvent as to those claims; that Wolf had paid 61.72 per cent. upon all the claims of the seventh class; and the final report was by such order confirmed and the estate declared to be settled. Hence it appeared affirmatively that appellant had advanced out of his own pocket the 38.28 per cent. overpaid to Gharst. Otherwise he could not have settled all the seventh class claims at 61.72 per cent. of their amounts. It is claimed that appellant could only sue in his individual capacity, and not as executor, for the overpayment to Gharst, and that he could not bring suit until he had advanced money enough out of his own means to make up to the French estate the amount of such overpayment, the amount which was paid to Gharst by mistake, having been the money of the estate and not his own money. Upon these grounds it is urged that when the claim was first filed in the county court, in 1882, the cause of action was not ripe for suit. When the claim was presented to the county court, in June, 1882, Gharst's estate owed the amount which had been overpaid to him in his lifetime. Whether Gharst's estate then owed that amount to appellant, as executor, or to appellant, as an individual, or to the other creditors. of the French estate, matters not, so far as the existence of the indebtedness was concerned. The debt existed to somebody, and the same debt existed all the way through up to the last trial in November, 1886. It could make no practical difference to the Gharst estate who owned the claim against it. As Gharst had received more money than hel ought to have had, his estate was liable to refund the amount. This liability remained the same from the beginning to the end, whatever variations there may have been in the ownership of the claim, or in the form of the evidence, by which it could be substantiated. In ad judicating upon the claim, the county court was possessed of an equi table jurisdiction. Dixon v. Buell, 21 Ill. 203; Hurd v. Slaten, 43 Ill. 348. Equity disregards mere matters of form, and looks at the substance. It is said that when the claim was filed against Gharst's estate, the county court had not declared the French estate insolvent, and had not, by an order fixed the amount of the dividend or pro rata percentage belonging to the creditors. Nevertheless the amount of such percentage was capable of ascertainment, in June, 1882. The proof showed at that time the assets of the French estate, the amount of Gharst's claim, and the amounts of all the other claims, including those filed in June, 1881. From these data it was easy to figure the amount of the percentage the creditors were entitled to and the amount of the overpayment to Gharst. The subsequent order made on July 15, 1886, was more certain and definite evidence, but after all it was only evidence of what already existed. When the appeal was taken to the circuit court, the trial in the latter court, in November, 1886, was de novo, and it was proper to introduce then as evidence the order of July 15, 1886, though the same evidence had not yet come into existence in 1882. Thorp v. Goewey, 85 Ill. 611. It is said that this claim was improperly filed by Wolf, as executor of the estate of E. J. French, deceased. The money was paid to Gharst after the death of French. The law created an implied contract on the part of Gharst with Wolf to pay back the excess. An executor or administrator may sue, either in his representative or in his personal character, on contracts made with him after the death of the deceased. Dicey, Parties, 233. Where the indebtedness thus grows out of a contract with the executor, he may sue in his own name; or if the word "executor" or "administrator" is used after his name, it will be regarded as merely descriptive of the person, and as being immaterial. Laycock v. Oleson, 60 Ill. 30. The legal title to the money paid to Gharst was in Wolf. Neubrecht v. Santmeyer, 50 Ill. 74; Walker v. Craig, 18 Ill. 116; Makepeace v. Moore, 5 Gilman,.474. The right of action was in Wolf. The statute does not require any written pleadings in the case if a claim be presented to the county court. Thorp v. Goewey, supra. If the right of action was in Wolf, as trustee for the French estate, upon the trial, in 1882, but was in Wolf, as an individual, in 1886, by reason of his advance to the French estate of the money overpaid to Gharst, this change could make no difference to the Gharst estate. Wolf was still the legal claimant, whether claiming for himself or in trust for another. He could not charge the French estate with any of the costs or expenses of prosecuting the claim against the Gharst estate, even though he sued as executor, because he was suing to recover back money improperly paid out by himself. Although the judgment entered by the court in November, 1886, was in favor of Wolf, as executor, he was entitled to the money in his несо |