Bearinger v. Pelton

• Decision Date: 15 November 1889
• Citation: 78 Mich. 109,43 N.W. 1042
• Court: Michigan Supreme Court
• Parties: BEARINGER v. PELTON.

43 N.W. 1042

78 Mich. 109

BEARINGER v. PELTON.

Supreme Court of Michigan

November 15, 1889

Case made from circuit court, Ottawa county; ARNOLD, Judge.

CAMPBELL J.

This case brings up the settlement of defendant's account as administrator of the estate of Orwin A. Lord, deceased. The case on the record is peculiar. It was appealed from the probate court of Ottawa county, and the Ottawa circuit court made a reduction against defendant's outlays for counsel but allowed him everything else. He appeals against this reduction, while the guardian of infant heirs appeals from a large part of the allowance for various outlays as not justified by law. Had the parties interested all been of age and capable of estoppel, we should not be disposed to disturb what was no doubt an honest course of dealings. But we have no authority to allow illegal dealings as against infants and we think there were some such here.

Orwin A. Lord died November 19, 1880, leaving a widow, Mary J Lord, and three minor children. Defendant, Pelton, was appointed administrator in February, 1881. The estate consisted of two 40-acre lots, lying together, and appraised at $1,200 each, (making $2,400,) and $1,116 personal property. No accounts against deceased were ever presented against his estate, and in March, 1884, an account was filed bringing the estate in debt to defendant for matters occurring entirely after the death of the intestate as expenses of litigation. The final account now appealed from is made up of additional expenses of the same kind and of a payment of a dower claim of the intestate's mother in the land. In order to meet this, the administrator raised $700 by mortgage on one of the parcels of land. As appellant claims that this litigation did not concern the administrator wholly, if at all, it requires explanation. Orwin Lord, father of Orwin, once owned the land in question, and it is claimed, and is so established, conveyed it to Orwin during his life-time. He left a widow, Abigail Lord, and a son, Francis, and the intestate, surviving him. The intestate was in possession of the property. In 1881, shortly after the administrator got his letters, Francis Lord filed an amended bill against Abigail Lord, the widow of Orwin, and against defendant and the widow and heirs of intestate, to set aside the conveyance from his father to Orwin for fraud and other causes, and praying partition of both parcels, recognizing and asserting Abigail's dower interests. On this bill the decree was against complainant. Abigail Lord filed a cross-bill against complainant and the other defendants, asserting that she had supposed Orwin had good title until recently, asking assignment and partition of dower on one lot and life-estate in the other, and damages for her past dower since her husband's death. In their answer to this cross-bill defendant and intestate's widow and heirs admitted Abigail's right to dower, unless barred by statutory limitation, and claimed it was so barred, and also claimed the benefit of demurrer. At the close of the litigation a sum of $360 was settled by consent decree as due Abigail for dower, and this sum is a chief part of the claim of defendant. He also claims expenses of litigation, which included $435.43 paid his solicitor, which last item the circuit court reduced to $200. The original bill did not dispute Abigail's dower, and had partition been granted the complainant admitted it would be set out. But whatever arrears of dower were due from intestate in no way concerned complainant, and were not referred to in his bill.

Abigail Lord's cross-bill was not called for by anything in the original bill, and was unnecessary, so far as the land was concerned. Her claim for arrears of dower, if valid at all, was one against the administrator of intestate and did not concern the heirs, except through him. She claimed an entire homestead right in...