Munford v. Miller. mony. Disregarding this wholly incompetent testimony, there is no evidence whatever to show McIntyre did not own the land in section thirteen mortgaged to Mrs. Miller, or that it is not of amply sufficient value to secure her debt. If her claim is not lost by means of the alleged mistake, it is wholly immaterial that it is secured by a lien upon a different tract of land from that she intended to secure a lien upon. If there has been no injury, there can be no cause of action. And there is no presumption of law that McIntyre gave a mortgage upon lands to which he had no title. It was also error to permit the plaintiff below and her husband to testify to the conversation that took place between them prior to the execution of the mortgage. Waiving all questions of interest and identity, neither husband nor wife could, at common law, testify to conversations occurring between them, and this on grounds of public policy. 1 Greenl. Ev. 254, 334, et seq. And this same public policy is recognized by the proviso to section five of our present statute in regard to evidence. It expressly provides "that nothing in this section contained shall be construed to authorize or permit any such husband or wife to testify to any admissions or conversations of the other, whether made by him to her or by her to him, or by either to third persons, except in suits or causes between such husband and wife." The further fact, that the conversation was in the absence of the defendant below, would clearly exclude both husband and wife from testifying in regard to it. As, however, the litigation was concerning the separate property of the wife, the husband was a competent witness to show the fact of agency, and all other matters within his knowledge, excluding only such conversations as the policy of the law precluded him from disclosing. The second instruction given for defendant in error, was argumentative; it singled out some of the many circumstances in the case, and called the special attention of the jury to them; and it invoked attention to at least one fact of which there was no legal proof in the record. The third instruction was to the effect that although the defendant may have made the mortgage from McIntyre to plaintiff, and delivered the same to plaintiff, and plaintiff had re VOL. VII. 5 Munford v. Miller. ceived the same, that would not bar her from recovering, unless she received the same, knowing it to be upon the wrong land. To one familiar with the land intended, the mistake was patent upon the face of the mortgage. Mrs. Miller was bound to exercise ordinary care and diligence. Were the relative positions of the respective parties to the transaction of of such character as would permit Mrs. Miller to take the mortgage from the defendant without any examination whatever, and yet hold her guiltless of contributory negligence? Did she have a right to rely upon the correctness and validity of the mortgage? The answer to this would depend upon the position in which they stood towards each other; and there was a conflict in the testimony upon that point, which the jury should have settled. The instruction should have required ordinary care from plaintiff, and then the jury should have determined from all the circumstances of the case, whether that degree of care was exercised. There was error in giving these two instructions. The fourth instruction asked by plaintiff in error was properly refused. It was in substance, that if Mrs. Miller accepted the mortgage from defendant, the verdict should be for defendant, unless the acceptance of such mortgage was procured by the fraud or misrepresentation of defendant. An agent is not only responsible for his fraud, but for his negligence or want of skill. Nor was the instruction good on the ground that the acceptance was a ratification of the act of defendant, for it wholly ignored the requirement; the party ratifying had a full knowledge of all the material facts. The instruction, as modified and given, was equally erroneous. It then required, before the acceptance of the mortgage would release Munford, that the jury should either find fraud, or else that Mrs. Miller "knew all the facts of, about and in the mortgage." Thus modified it was vicious; for the same reason the third instruction for defendant in error was vicious, as not requiring ordinary care on the part of Mrs. Miller. Allowing the defendant in error to introduce evidence in chief after she had once closed her case, was a matter of discre Little v. Williams. tion with the court, and we think it was very properly exercised in this case. Any defect there may have been in laying a proper foundation for the introduction of the record of the deed and mortgage may readily be supplied on a second trial without any suggestion from us. The statute expressly provides what foundation will be sufficient. For the errors indicated herein, the judgment is reversed, and the cause remanded for a new trial. Reversed and remanded. JOHN R. LITTLE, Adm'r, V. J. W. WILLIAMS, Adm'r. 1. WIDOW'S AWARD-ORDER OF PAYMENT.-In the administration of estates, the widow's award is subordinated only to the payment of funeral expenses. An administrator may not with impunity wholly disregard the statute, and pay out of the assets of the estate such claims as he thinks fit, leaving preferred claims unpaid and unprovided for, and if he misapplies the funds, he must abide the consequences. 2. ADMINISTRATION OF ESTATES-EXPENSES FOR TOMBSTONE.-When an estate is in such an insolvent condition that it can pay nothing to general creditors, nothing for physician's bill or other expenses of the last sickness, and only in part that which the law regards a still more equitable and deserving claim, the administrator should not be allowed to expend $42.35 for a tombstone for the deceased. ERROR to the Circuit Court of Williamson county; the Hon. D. M. BROWNING, Judge, presiding. Opinion filed August 13, 1880. Messrs. CLEMENS & BURTON, for plaintiff in error, cited York v. York, 38 Ill. 522; Heward v. Slagle, 52 Ill. 336; Foley v. Bushway, 71 Ill. 386. Mr. J. M. WASHBURN and Mr. GEORGE W. YOUNG, for defendant in error, cited Rev. Stat. 1877, 111; People v. Phelus, 78 Ill. 147; Curts v. Brooks, 71 III. 195. Little v. Williams. The credit for tombstone was proper: Foley v. Bushway, 71 Ill. 386; North's Probate Guide, 177; Willard on Executors, 272. Costs of administration must first be paid: People v. IIunter, 89 Ill. 392; North's Probate Guide, 158. An administrator is liable for costs only in case of mala fides, or gross negligence: Burnap v. Dennis, 3 Scam. 478. BAKER, J. Mary Williams was widow of David Williams, deceased; and appellee was and still is administrator of his estate. The widow's award was $682; and she selected $108.10 in personal property, at appraised value, leaving $573 still due on her allowance. There has come to the hands of the administrator, in money, from sale of personal property, $185.05; from sale of real estate to pay debts, $150; from collections on notes inventoried, $40, and from cash on hand, sixty-four cents; making $378.69 in all. Section 70, Ch. 3, R. S. 1874, classifies claims against the estates of deceased persons into seven classes: Funeral expenses compose the first class; the widow's award is the second class; and all other debts, demands and expenses are included in one or another of the subsequent classes. Section 71 provides that all claims allowed against estates shall be paid in the order in which they are classed by the statute. By this classification the widow's award is subordinated to the payment of funeral expenses only. Rector v. Reavill, 3 Bradwell, 232. The administrator of David Williams has never applied the $378.69 that he admits has come to his hands, or any part thereof, to the payment of the amount remaining due and unpaid on the widow's award; but on the contrary, has paid all other claims in preference thereto. Appellant is administradeceased, and instituted tor of Mary Williams, who is now proceedings in the county court to compel appellee to show cause why an order should not be made on him to pay the residue due on the award. Appellee answered by filing a report, and objections were filed thereto by appellant. The county court overruled the objections and approved the report; and thereupon appellant appealed to circuit court. A trial in the Little v. Williams. latter court, without a jury, resulted in a judgment refusing the order asked on appellee, and confirming his report, and affirming the judgment of the county court. Upon examination of the report of appellee, and of his former reports offered in evidence on the hearing, we find he has paid out but little, if anything, that has preference to the widow's award. It cannot be admitted an administrator may with impunity wholly disregard the statute, and pay out of the assets of the estate just such claims as he thinks fit, leaving those demands the statute has made preferred claims unprovided for. The law says the widow's allowance shall be paid before aught else except funeral expenses. This administrator has paid the costs of administration, his own commissions and per diem charges, an individual claim of his own, and all the seventh class claims, and yet answers, in substance, that he has received no assets with which to pay the widow's award. If he has misapplied the funds of the estate, he must stand the consequences. The whole account of the administrator should be re-stated, and a peremptory order should be made upon him to pay, within a fixed day, to appellant, on widow's award, the residue of assets found to be in his hands. But few deductions should be made from the amount of moneys he has collected. When an estate is in such insolvent condition that it can pay nothing to general creditors, nothing for physician's bill or other expenses of the last illness of the deceased, and only in part pay that which the law regards a still more equitable and deserving claim, we are of opinion the administrator should not be allowed to expend $42.35 for a tombstone for the deceased. Regard should be paid to the rights of the living. If the officers of the court fail to get their fees and costs, it may be said the law provides such fees and costs shall be a fifth-class claim, and they took their respective offices cum onere. If the administrator fails to receive compensation for his services, it may be said, by availing himself of the provisions of Section 59 of the statute in regard to the administration of estates, as soon as it was discovered the assets of the estate did not exceed the amount of the widow's allowance, his labor and services might have been dispensed with. Had he availed himself of |