delivered the opinion of the court.
The issue raised by the special pleas of appellees concedes that appellants were and are entitled to a judgment against any of the assets of the estate of Duncan S. McBean, deceased, which had not been inventoried or accounted for by appellees as executors. Counsel for appellants, however, admitted in open court that there is no estate of Duncan S. McBean, deceased, which has not been and is not inventoried or accounted for by the defendants, and thus in effect said that they waived and were not seeking a useless judgment against uninventoried or subsequently discovered assets, but they claimed and now claim the right to a judgment against the defendants, appellees, to be paid out of the money and property of said estate which they allege in their replication to defendants’ second plea to the original declaration has been set apart and reserved by the defendants from the estate of McBean, deceased, to pay the damages, interest and costs due by reason of the failure of title to the judgment assigned by McBean to Pearson. By defendants’ demurrer to that replication defendants admit that they have “set apart and reserved from the estate of said Duncan S. McBean, deceased, a sufficient amount of money and property belonging to said estate to pay the damages, costs and interest by reason of the failure of the title to said judgment.”
It appears from the pleadings that on May 18, 1891, Duncan S. McBean, appellees’ testator, executed and delivered to appellants’ testator an assignment of the judgment in question. On May 25, 1898, Duncan S. McBean having died, letters testamentary in his estate were granted to appellees and they proceeded with the administration, causing adjudication to be entered in the Probate Court, and an inventory and appraisal of the estate to be filed, and accounted for all the estate within two years from the granting to them of the letters.
Within one year from the granting of the letters, May 13, 1899, Ida E. Schmidt filed her bill making appellants’ testator and appellees parties defendant, and on June 13, 1902, obtained a decree setting aside the assignment of the judgment; and appellants commenced this action October 6, 1902. It also appears that appellees have a sufficient amount of undistributed assets of the estate of McBean in their hands to pay the damages, costs and interest sued for in this action.
The question presented and argued is, can appellants maintain this action for a recovery of the money paid by Pearson to McBean against appellees to the extent of the money or personalty remaining in their hands, or have they lost this right of action, except as to estate afterwards discovered and not inventoried, by reason of their failure to present the claim as provided in section 70, chapter 3, Hurd’s Bevised Statutes, in force at the time of the commencement of this action.
The able and exhaustive brief and argument filed in this case by counsel for appellants presents, we think, all the law bearing upon the case as announced in the decisions of this State fairly and clearly, but we are unable to yield assent to some of the conclusions drawn from the authorities-cited.
Counsel for appellants urge that inasmuch as neither Pearson in his lifetime, nor appellants as his executors, could have sustained any claim in the Probate Court against the estate of Duncan S. McBean, or have maintained any action at law against the executors of that estate until the decree was entered in the Superior Court, June 13, 1902, section 70 of chapter 3, Hurd’s Revised Statutés, should not be so construed as to bar a recovery against the McBean estate except as to assets not inventoried or unaccounted for, because of the admitted fact that appellees hold in trust, as executors of the McBean estate, sufficient personal property of such estate to satisfy appellants’ claim, and which at common law should be applied in satisfaction thereof. It is contended that such a construction, in view of the fact that there are undistributed assets in appellees’ hands, and of the contingent character of the claim of appellants, and of the full knowledge of all the facts discovered to appellees in the litigation in the Superior Court, would be inequitable and unjust.
We do not think that the fact that there were undistributed assets in the hands of appellees as executors of the McBean estate is material. The operation of the statute is not affected by that fact. The limitation of the statute depends upon the lapse of time after letters testamentary were issued, and is not suspended by the non-distribution or the reservation of money or property of the estate in the hands of executors or administrators. Cunningham v. Stanford (N. J.), 54 Atlantic Rep., 245.
This precise question was presented to this court in Morse v. Gillette, 93 Ill. App., 23, 30, and was decided adversely to appellants’ contention.
The knowledge, of appellees that the claim here in controversy was made in the cause in the Superior Court in which the decree was entered setting aside the assignment of the judgment, did not take the case out of the statute requiring claims or demands to be exhibited against the estate within two years from granting of letters. Morse v. Pacific Ry. Co., 191 Ill., 356, 361.
The main question presented and argued by appellants as to their right to maintain this action against appellees for the recovery of any other judgment than that corresponding to the common law judgment of quando acciderint, notwithstanding the bar of section 70 of chapter 3 of the statutes, we regard as settled in Stone v. Clark, 40 Ill., 411; Snydacker v. Swan, 154 id., 220; Rassieur v. Jenkins, 170 id., 503; Morse v. Gillette, 191 id., 371, and Morse v. Pacific Ry. Co., supra.
The judgment of the Superior Court is therefore affirmed.
Affirmed.