delivered the opinion of the Court:
The bill in this case, filed February 26, 1877, alleges that James McConnell, father of the complainant, died January, 1867, testate, leaving a large estate; that, under his will, the personal estate, after the payment of debts, etc., was bequeathed to the children; that the defendant, the widow of said James McConnell, took one U. S. government six per cent gold interest bond, of the denomination of $1000, belonging to ■cue estate, and never accounted for the same; that complainant had, by assignments, acquired the interests of the other legatees in and to the personal estate; that the executor had settled the estate, and this bond was not needed to pay debts, etc., and seeks to charge defendant with the value thereof, and also to enjoin four suits which the defendant was prosecuting in the same court, against complainant, upon money demands, in order that the amount due complainant on account of the bond, when ascertained, might be set off against the claims in said suits. A temporary injunction was granted.
It was set up in defence that the bond had been applied by the defendant in part payment of a promissory note for $1500 which had been given by the testator, in his lifetime, to one Josiah Marvin.
On final hearing the circuit court dissolved the injunction and dismissed the bill. On appeal to the Appellate Court for the Third District the decree was affirmed. The complainant sued out this writ of error.
The plaintiff in error does not deny the well settled doctrine that an executor de son tort of a solvent estate may discharge himself, even against the demand of the rightful executor, by proving debts paid to the amount of the goods received which had belonged to the deceased. See Weeks v. Gibbs, 9 Mass. 72; Reagan v. Long, 21 Ind. 264; Tobey v. Miller, 54 Me. 480; 1 Williams on Exrs. 267.
But it is claimed that the evidence did not sufficiently establish the existence of the note, or that the bond was applied toward the payment of it.
Without reviewing the evidence in detail, we think it sufficient to say, that we have carefully examined it upon the points wherein it is claimed to be deficient, and the proof shows to our satisfaction the existence of this note as a debt against the estate, and that the bond in question was paid upon it.
The payee of the note testifies to the giving of the note, and that it was paid to him in April, 1867. Another disinterested witness, through whom the payment of $1000 on the note was made, testifies to making such payment, and that it was made with this bond. There is other corroborative evidence that the bond was paid upon the note. There appears nothing contradictory. It is objected that the note itself is not produced. But it could not be expected that a paid note would be preserved for such a length of time after its payment, so as to enable it to be produced in evidence.
Upon the dissolution of the injunction the circuit court awarded the defendant $100 as damages sustained by the injunction. This is complained of as of too large amount. The allowance appears to be warranted by the evidence, and we do not regard it unreasonable.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.