Curzenski's Estate, In re

• Decision Date: 03 February 1971
• Docket Number: No. 15,15
• Citation: 183 N.W.2d 220,384 Mich. 334
• Parties: In the Matter of the ESTATE of Edward CURZENSKI, Deceased. Marlene HINZ, Plaintiff-Appellant, v. ESTATE of Edward CURZENSKI, Defendant-Appellee. Marlene HINZ, Plaintiff-Appellant, v. Patrick J. KEATING, Administrator of the Estate of Edward Curzenski, Deceased, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 220

183 N.W.2d 220

384 Mich. 334

In the Matter of the ESTATE of Edward CURZENSKI, Deceased.

Marlene HINZ, Plaintiff-Appellant, v. ESTATE of Edward CURZENSKI, Defendant-Appellee.

Marlene HINZ, Plaintiff-Appellant, v. Patrick J. KEATING, Administrator of the Estate of Edward

Curzenski, Deceased, Defendant-Appellee.

No. 15.

Supreme Court of Michigan.

Feb. 3, 1971.

Yoe, Casey & Moore, Beras & Olzark, Detroit, for plaintiff-appellant.

Eggenberger, Eggenberger, McKinney & Weber by W. D. Eggenberger, Detroit, for defendants-appellees.

Before the entire Bench.

BLACK, Justice.

Leave was granted (382 Mich. 791) to review and decide the question left undetermined by a majority of the Court in In Re Critchell Estate (1960), 361 Mich. 432, 105 N.W.2d 417. ¹ That question is whether, under C.L.1948, § 704.56 (M.C.L.A. § 704.56), a decedent's policy of liability insurance constitutes an 'after discovered' asset of his estate, in the context of Critchell and now in this case of Hinz. Our answer is negative.

Other questions raised in the present plaintiff's brief are not properly before us, it appearing that all are justiciable in a separate and pending action which was commenced by plaintiff against the decedent's liability insurer, State Farm Insurance Company. As to this separate action, see Judge Fitzgerald's reference thereto with observation that it is 'still subject to the wisdom of the circuit court of Wayne County.' (17 Mich.App. 447 at 450, 169 N.W.2d 663 at 665).

So far as concerns the respective opinions of Critchell, we join Division 1 in holding that (p. 451, 169 N.W.2d p. 665):

'The quoted portion of section 56 is intended to prevent tardy claimants from reopening and confusing the disposition of an estate closed more than three months before, and is not intended to bar a prompt attempt to reach an after-discovered asset of the estate.' (Citing Young v. Moore (USDC ED Mich.1954), 127 F.Supp. 265 and Melvin v. Reading (1956), 346 Mich. 348, 78 N.W.2d 181).

The only opinion of Critchell which touches today's question is that of Justice T. M. Kavanagh, with whom Justices Edwards and Souris concurred. As for the opinion of Justice Carr, supported as it was by Justices Dethmers, Kelly and Smith, that opinion and the 'inferential interpretation' ² which the present plaintiff offers made no precedent for want of 5 endorsers thereof. See reference to the Breckon Case, Supra, by footnote.

To set the stated question at rest, the writer advises the profession that had he been ethically eligible to participate in the Court's decision of Critchell, he would have endorsed Justice T. M. Kavanagh's mentioned opinion. Being now of like view, the undersigned adopts and applies that opinion to this case of Hinz, the essential facts of Critchell being the same as here shown.

For elaboration, see the factual statement of Division 1 (pp. 448--450, 169 N.W.2d 663). The thrust of such statement is that counsel for this plaintiff had actual knowledge of all facts, certainly by July 3, 1964, ³ which should have galvanized him to prompt action for his client, either in the probate court or by suit in the circuit court against the then validly appointed and acting fiduciary of the Curzenski estate. On that pre-Fourth of July date counsel had until August 12, 1964 to act as above. Thereafter he and his client were possessed of another right, that of petitioning within 90 days for setting aside of the closing order of August 12, 1964, pursuant to C.L.1948, § 701.19, M.C.L.A. 701.19. Yet nothing was done until, pertinently, the jurisdiction of the probate court had passed into history.

Fourteen years ago, in Melvin v. Reading, 346 Mich. 348, 354, 78 N.W.2d 181, we tried to advise lawyers consulted and retained as here to 'Sue first and talk afterward.' As in Critchell, supra, and now here, that advice seems to have fallen upon deaf ears.

As this latest 'mournful result' (Melvin, supra at 353, 78 N.W.2d 181) comes to record in our books, it is in order that mention be made of a fact all concerned with cases as at bar should carefully consider. It is that our courts must decide them as if no liability insurance existed. Any liability which accrued against a decedent during his lifetime became His liability, whether he had that liability insured or not. When he dies his fiduciary must respond whether the injured person has or has not sued before the death occurred. Hence, if the person injured has not sued prior to the death, and has not made timely claim against the decedent's estate or commenced timely suit against the latter's fiduciary (see Kangas v. Lefko (1963), 369 Mich. 341, 119 N.W.2d 645), no remedy survives save upon some showing of fraud committed by any one or several whom equity may hold responsible for the consequences of that fraud. Such is the purpose as well as the...