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31 Ill. App. 394

Graffenreid v. Kundert

Appellate Court of Illinois

Decided June 15, 1889

Appellate Court of Illinois · decided 1889-06-15

<p>Administration—Acceptance by Legatee of Certificate of Deposit—Cash Balance—Guaranty by Executor—Failure of Bank—Executor's Liability —Evidence of Deceased Person at a Former Trial.</p> <p>1. Where a legatee has accepted from the executor a certificate of deposit belonging to the assets of the estate, and paid a balance thereon iii cash, upon the failure of the bank before the maturity of the certificate, a recovery may be had from such executor of the balance so paid.</p> <p>2. In an action brought to recover such balance this court holds that the transaction in question was made upon the assurance of the executor that he would guarantee its safety; that testimony as to his evidence upon a former trial, he having died in the meantime, was properly admitted; and that dividends paid by the assignee of such bank to the legatee on the certificate in question, belong to the estate of her testator and not to her.</p> <p>3. An admission of a deceased witness upon the stand does not require to be proved otherwise than if it had been made elsewhere.</p>

Cited by 2 later decisions — most recently October 1977

2 state decisions

Relies on Grafenreid v. Kundert

Good law ✅— No negative treatment on recordhow we know

Decided 1889-06-15

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Reeves, J.

¶1Balthaser Schneider died testate in 1884, and by his will left a legacy to appellee of §1,000. Rudolph Graffenreid was appointed the executor of • the will of Schneider. There came into his possession as executor a certificate of deposit issued by the banking house of F. Byhiner & Co., of Highland, to Schneider, for $1,800, dated January 4, 1884, due three years after date with six per cent, interest.

¶2In January, 1885, Graffenreid, as executor of Schneider, made an arrangement with appellee by which he transferred to her this certificate of deposit by indorsing it “ without recourse,” as executor, taking appellee’s receipt for the $1,000 legacy and receiving from her $800 in cash. In April, 1885, the firm of F. Byhiner & Co. failed and made an assignment. This suit was brought by appellee, against Budolph Graffenreid in his lifetime to recover back from him the $800 paid by her to him on the certificate. Originally the suit sought to recover from Graffenreid as executor of Schneider, but as it now stands the recovery is sought from Graffenreid personally, or rather from his estate.

¶3Some of the questions now made on the record before us were decided by this court at its February term, 1887, in this same case. It was then held that the transfer of the certificate of deposit was a nullity, and that appellee took no title to the certificate. Graffenreid v. Kundert, 23 Ill. App. 440.

¶4It was also held that appellee had no claim for the $800 paid by her, against the estate of Schneider; that the transaction between Graffenreid and appellee in no way bound the estate of Schneider, and that Graffenreid was acting in this matter entirely without authority of law as such executor, and consequently the only liability growing out of the transaction attached to Graffenreid personally. As Graffenreid had no right to receive the $800 which he got from appellee, it would seem to follow as a matter of law that appellee should have the right to recover it back.

¶5Without entering into the details of the evidence, we think it sufficiently appears that appellee was induced to take the certificate and pay the $800 upon the assurance of Graffenreid that he would make it good to her.

¶6The error assigned as to the improper admission of testimony is not well taken. It seems to us to have been sufficiently shown that the witness not only remembered what the deceased witness testified to on the point to which inquiry was directed, hut was able to state his evidence on this point quite fully. It was not necessary that she should be able to state that she remembered the substance of all his testimony in the case.

¶7This may be limited to the testimony upon some particular subject about which the deceased witness testified. 1 Green-leaf on Ev., Sec. 165. Furthermore this testimony was proper to prove an admission of Graflienreid. That the admission was made on the witness stand does not require it to he proved otherwise than if it had been made elsewhere.

¶8The proposition of law which the trial court refused to hold was properly refused in view of the former decision of this court. We adhere to the views in that opinion expressed.

¶9The dividends paid to appellee by the assignee of the bank on this certificate belonged to the estate of Schneider, and appellee is responsible to that estate for them. The appellant has no right or interest whatever in them.

¶10The judgment of the Circuit Court is affirmed.

¶11Judgment affirmed.

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