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Kurth v. Forreston State Bank

OPINION FILED DECEMBER 30, 1952

FRED KURTH, ADMINISTRATOR OF ESTATE OF COLLIN L. ROBERTSON, DECEASED, PLAINTIFF-APPELLEE,

v.

FORRESTON STATE BANK, DEFENDANT-APPELLANT. CONSOLIDATED WITH APPEAL BY SAID FORRESTON STATE BANK FROM THE COUNTY COURT OF OGLE COUNTY TO SAID CIRCUIT COURT RELATING TO THE AUTHORITY OF COUNTY COURT TO REOPEN ESTATE OF COLLIN L. ROBERTSON, DECEASED, AND TO APPOINT SAID KURTH AS ADMINISTRATOR DE BONIS NON, FORRESTON STATE BANK, APPELLANT.



Appeal by defendant from the Circuit Court of Ogle county; the Hon. HARRY E. WHEAT, Judge, presiding. Heard in this court at the October term, 1952. Judgment reversed and cause remanded with directions. Opinion filed December 30, 1952. Released for publication January 16, 1953.

MR. JUSTICE ANDERSON DELIVERED THE OPINION OF THE COURT.

In January, 1950, Fred Kurth, plaintiff-appellee as administrator with the will annexed de bonis non of the estate of Collin L. Robertson, deceased, filed his suit at law in the circuit court of Ogle county, Illinois, against the Forreston State Bank, defendant-appellant, asking judgment against the defendant for $31,387 and interest.

In October 1949 prior to the filing of this suit the county court of Ogle county, Illinois, on petition, had issued letters of administration de bonis non to the plaintiff herein. The executors of the estate of Collin L. Robertson, deceased, had been discharged several years before this time. The purpose of the appointment of the administrator was to bring this suit. The defendant appealed to the circuit court of Ogle county from the county court order appointing the administrator de bonis non. The suit for the recovery of the money and the probate appeal were consolidated by order of the circuit court.

Subsequent to the filing of the original complaint the plaintiff filed an amended complaint for the recovery of money alleged due him. To this amended complaint the defendant filed an answer with various exhibits attached, and various affirmative defenses. The trial court held in substance that the plaintiff's amended complaint stated a cause of action, and the defendant's pleadings were not legal defenses to the cause of action. The defendant then elected to stand on its motion to strike the amended complaint, on its amended answer, and on special affirmative defenses. Defendant then made a motion for judgment on the pleadings in its favor. This motion was denied. Defendant, failing to answer further, the trial court entered judgment in favor of the plaintiff in the sum of $31,387 with interest at five per cent from April 15, 1948. The defendant-appellant has prosecuted this appeal.

The judgment was entered solely on the pleadings. The pleadings, for the purpose of this appeal, as a matter of law, are admitted to be true. Therefore it becomes necessary to analyze the pleadings to determine whether or not the judgment of the plaintiff is sustained by the admitted facts as disclosed by the pleadings.

The admitted facts are as follows: the defendant for many years prior to January 16, 1931, under a state charter, operated a banking business at Forreston, Illinois. On January 16, 1931, Collin L. Robertson was president of that bank. He had been president continuously for some years prior thereto. During the same time Herman Brandt had been cashier of the bank. Robertson had been active in the management of the bank, and had charge of the purchase and sale of its securities. He owned 171 shares of the bank's capital stock at a par value of $100 per share. He had purchased various bonds for the bank's investment account. It appears that these bonds had commenced to depreciate in value prior to August 1929, during which time and thereafter there was a world-wide depression. The bank was examined by the bank examiners under the supervision of the Auditor of Public Accounts of the State of Illinois on January 3, 1931. This examination disclosed that the bond account of the bank was carried on its books as having a value of $456,000. The examination disclosed that the bonds had depreciated in value so that their then market value was approximately $75,000 less than the value placed upon them by the bank. The Auditor of Public Accounts demanded that this depreciation be made good by the bank. It is apparent that if this depreciation had not been made good, the Auditor would have closed the bank. To make good this depreciation, Robertson signed a written memorandum, which is as follows:

"For the purpose of guaranteeing the creditors or depositors of the Forreston State Bank of Forreston Illinois against any loss in connection with and on account of Bond depreciation shown on issues as reflected in examination report of January 3rd, 1931. Should any loss be incurred, I hereby pledge assign and set over to Herman Brandt as Trustee for the sole purpose as herebefore set forth as follows:

"Two Thousand (2000) shares of Swift & Co. stock, numbered C24200 to C24219 inclusive.

"It is further agreed and understood that I have the right to substitute securities of any equal market value, at any time, should I so desire. Said securities to be held by said Trustee until such time as the Bond depreciation has appreciated to an amount sufficient to offset depreciation equal to the amount of this guarantee, or until such time as permission is given to the Trustee to surrender said guarantee to guarantor by the Auditor of Public Accounts.

"The above to be binding on my estate, heirs and assigns.

"Witness my hand and seal this 16th day of January, 1931.

Seal C.L. Robertson

"In presence of C.F. Robertson

"I hereby certify that I have received and hold the above mentioned securities as Trustee for the ...


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