Brown v. Forsche
| Citation | 5 N.W. 1011,43 Mich. 492 |
| Court | Michigan Supreme Court |
| Decision Date | 11 June 1880 |
| Parties | BROWN v. FORSCHE. |
When a creditor of an estate proceeds in the probate court to compel the administrator to pay his claim, and the case is appealed to the circuit court, where the case involves substantially the issue plene administravit, the judgment of the circuit court thereon may be removed to the supreme court by writ of error.
When commissioners have made their report upon claims against an estate, and the administrator has paid all that was allowed and the time has expired for presenting more, except upon special application to the probate court or cause shown, it is the duty of the administrator to turn over the property to the heirs and distributees, and he may do so without waiting for an order of the probate court requiring him to do so.
Where an administrator had turned over property to the distributees under such circumstances, but neglected to file his final account, and some time afterwards another claim was presented and allowed by the probate judge, at which time the property had been used up by the distributees, held, that notwithstanding his final account was not settled, the administrator was not responsible for the claim, or for the use made by the distributees of the property.
A creditor who thus delays the presentation of his demand until he can bring it in as matter of favor only, must take all risks of being able to collect it in the condition in which he finds the estate. He cannot hold the administrator responsible, except upon the ground of some personal wrong or default.
It is the right of all parties interested in an estate to settle it up by voluntary proceedings if they agree to do so; and they may do this after an administrator is appointed as well as before.
The liability of an administrator to the estate or to creditors is to be tested by equitable rules, regardless of mere technicalities; and this on appeal as well as in the probate court.
Error to Washtenaw.
Beakes & Cutcheon, for plaintiff in error.
Millard & Bean, for defendant in error.
The record in this case presents the following state of facts:
John Miller, a resident of Washtenaw county, died intestate November 7, 1872, leaving a widow and children, and real and personal estate to be administered. April 8, 1873, on petition of one of the children, and after due publication of notice, Jacob Brown, the plaintiff in error, was duly appointed administrator on the estate of said intestate, and gave bond and took upon himself the trust. On the same day commissioners were appointed by the judge of probate for the county of Washtenaw to examine and adjust the claims against said estate. The commissioners took the oath required by law and gave the requisite notice for the presentation of claims and on July 31, 1874, filed their report in the probate court, showing the allowance by them of claims to the amount of $350 and no more. The estate was duly inventoried by the administrator and was appraised as follows: real estate $22,100; personal estate, $2,158. The real estate appears to have been subject to very large encumbrances.
After the time for the presentation of claims to the commissioner had expired, the administrator, having no knowledge or notice of further demands, allowed the widow and children of the intestate to take possession and dispose of the assets belonging to the estate, and before the proceedings hereinafter mentioned had been begun, the whole of said assets had been exhausted by the widow and children in the payment of the claims, and in their own support. The administrator, however, had filed no account and taken no step to be discharged from his trust, until December 5, 1876, when he applied to the probate court for the settlement of his final account, and January 9th, following, was assigned by the court for the hearing thereon. The day before this hearing was to take place, namely, January 8, 1879, Ignatz Forsche presented to the probate court his petition, setting forth that he had a claim of $750 against said estate, and praying that the commission be revived for the purpose of hearing it, or that instead thereof it be heard and allowed by the judge of probate. The prayer of this petition was denied by the probate court, but on appeal to the circuit court the claim of Forsche was heard and allowed at the sum of $902.15, with $65.10 costs.
No proceedings were had for the settlement of the administrator's account on January 9, 1877, the day fixed for a hearing thereon; and on May 29, 1878, the probate court made an order reciting that it appeared from the inventory that the personal property of the estate amounted to $2,158, and that the claims allowed were $1,317.25, and thereupon the administrator was directed to pay said claims within 20 days. As all the claims except that of Forsche had been previously paid, this order would apply to that claim only. The administrator appealed from the order to the circuit court, assigning various reasons for the appeal; the one chiefly relied upon being that there was no property or money belonging to the estate from which the Forsche claim could be paid. In the circuit court the administrator was held to have the affirmative of the issue, and the trial proceeded after the usual course of common-law suits. The facts above recited appeared in proof, and the court gave judgment, affirming the order of the probate court. The administrator thereupon brought error.
1. Motion was made to dismiss the writ of error on the ground that certiorari was the proper remedy. Holbrook v. Cook, 5 Mich. 225; Conrad v. Button, 28 Mich. 365. But we think the case is properly here. The substance of the issue in the circuit court was plene administravit, and the trial proceeded as it might have done on that issue in an original suit in the circuit court.
2. The case upon its merits requires a careful examination of the statutory provisions respecting the settlement of estates. By section 4450 of the Compiled Laws the probate court is required, at the time of granting letters of administration, to make an order allowing to the administrator a time for disposing of the estate, and paying the debts, which, in the first instance, shall not exceed one year and six months. The next section permits extensions, but not so that the whole time allowed to the original administrator shall exceed four years. It does not appear that there was any extension in this case, and the one year and six months expired October 8, 1874.
By section 4424 of Compiled Laws the probate court is required, when appointing commissioners for the examination and allowance of claims, to determine the time within which claims shall be presented to them, and this, in the first instance, shall not exceed 18 months, but may be extended, (section 4425;) but not so that the whole time shall exceed two years. The time in this case was limited to six months. If extended to the extreme limit allowed by law it would have expired April 8, 1875.
By section 4433 of Compiled Laws it is declared that when a claim is not presented to the commissioners within the time allowed for their action, the claimant shall be forever barred from recovering it, or from setting off the same in any action whatever. Another section, nevertheless, provides that on the application of a creditor who has failed to present his claim, "if made at any time before the estate is closed," the judge of probate may revive the commission for the purpose of hearing the claim. Comp.Laws, � 4426. Or instead of doing this he may himself hear and adjudicate upon the claim, as was done in this instance.
From the foregoing it will appear that long before Forsche presented his claim or notified the administrator that he had one, the time had not only expired for the presentation of claims to the commissioners, but for the settlement of the estate also. As early as October 8, 1874, the administrator should have paid off all the claims allowed against the estate, and delivered the remaining assets to the widow and next of kin, and obtained his discharge. Had he done so, it is not pretended that any claim...
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