Curzenski's Estate, In re

• Decision Date: 28 May 1969
• Docket Number: Docket Nos. 4833,4834,No. 1,1
• Citation: 17 Mich.App. 447,169 N.W.2d 663
• 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: Court of Appeal of Michigan — District of US

Page 663

169 N.W.2d 663

17 Mich.App. 447

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.

Docket Nos. 4833, 4834.

Court of Appeals of Michigan, Division No. 1.

May 28, 1969.

Rehearing Denied July 14, 1969.

Released for Publication Aug. 22, 1969.

Roland L. Olzark, by Jerome A. Moore, Detroit, for appellant.

Eggenberger & Eggenberger, Detroit, for appellee.

Before LESINSKI, C.J., and FITZGERALD and BRENNAN, JJ.

FITZGERALD, Judge.

On March 1, 1964, decedent Edward Curzenski was killed when his car struck a light pole at 100 miles per hour. Plaintiff-appellant, a passenger, was critically injured. A hearing on claims against the estate was held on July 2, 1964, but plaintiff entered no appearance. The next day, her counsel informed State Farm Insurance Company, decedent's insurer, of her claims against the policy, with which the insurer disagreed. Following long negotiations, a payment of $1,000 for medical bills was made to her by State Farm in November of 1964 under the medical payments provision of the policy, but in the meantime the estate had been closed on August 12, 1964, allegedly without the knowledge of plaintiff.

Considerable public liability payments were available to proper claimants against the estate from the insurance company. In January of 1965, plaintiff allegedly first became aware of the closing of the estate and, desiring to reach these payments, requested that the probate court reopen the estate and appoint a new administrator, which it did, naming defendant Keating on April 30, 1965. Plaintiff then sued the estate on August 4, 1965, through Keating as administrator, in the Wayne County circuit court, seeking recovery from the liability insurance payments.

She also sought an injunction against State Farm on July 8, 1966, based on constructive fraud, for inducing her to withhold filing this liability suit during the time the estate was being probated by engaging in the long negotiations concerning the $1,000 payment under the medical payment provision of the policy. The injunction seeks to prevent State Farm from invoking the 'non-claim' provisions of the policy which would otherwise bar her from the liability action by application of the statutory three month limitation on petitions for rehearing claims against estates already ordered closed. ¹ The State Farm suit is pending below following a denial of defendant's motion for summary judgment.

Mr. Keating, believing the estate to be immune from liability, resigned as administrator on September 27, 1965, and filed his final account on September 14, 1966. Plaintiff sought, and was denied, the appointment of a successor administrator in the probate court. Her appeal of that order to the circuit court was also denied. Thus, the Wayne County circuit court, on December 1, 1967, granted two motions for accelerated judgment, ² one by defendant Keating to dismiss the suit against himself, thereby depriving the court of jurisdiction over plaintiff's action against the estate, and one by the estate to prevent the appointment of a successor to Keating. Plaintiff's appeal of these orders to this Court followed. She is not appealing the order permitting the discharge of Keating.

Several of the issues raised here by plaintiff are intertwined, and more appropriately concerned with her claims against State Farm Insurance Company, and we will not attempt to tamper with a cause still subject to the wisdom of the circuit court of Wayne County.

Although the correctness of granting the above orders may be restated simply as the two issues to this appeal, as is done by defendants, plaintiff instead takes us back to the events which occurred following the closing of the estate in her attempt to show that she should be permitted to reach these assets. She alleges that since the provisions of C.L.1948, § 704.56 (Stat.Ann.1962 Rev. § 27.3178(307)), hereinafter referred to as section 56, provide for a reopening of a closed estate to probate after-discovered assets of the estate, she is entitled to reach the liability insurance proceeds despite her failure to act within ninety days of the closing of the estate. Contrary to defendant's only argument on this issue, she believes that the following portion of section 56 does not Bar her claim:

'Provided, however, That the failure of a claimant to file a claim against said estate during the original administration thereof shall not be a cause for reopening same or for the appointment of a successor fiduciary.'

If she is barred by this section, her claim in circuit court against the estate, made of necessity against an administrator, must fail due to the requirement of section 19 that a claim for rehearing be made within three months of the closing of the estate before the probate court obtains initial jurisdiction to reopen the estate and appoint the new administrator.

This result would impose the bar of a statute of limitation of three months on this negligence claim instead of the three years normally available under the applicable negligence injuries statute. ³ We shall not, as also noted above, now evaluate the propriety of the actions of State Farm in allegedly not notifying plaintiff of the probate proceedings so that she might have sued for the now unreachable liability insurance payment to the estate.

Reading the entire Probate Code together in an attempt to create a harmonious whole, ⁴ we find that although the three-month period had expired, the estate may be reopened upon the discovery of new assets. The quoted portion of section 56 is intended to prevent tardy claimants from reopening and confusing the disposition of an estate closed more...