Hatheway v. Weeks

• Decision Date: 13 June 1876
• Citation: 34 Mich. 237
• Court: Michigan Supreme Court
• Parties: James S. P. Hatheway and others v. Edgar Weeks and others

34 Mich. 237

James S. P. Hatheway and others v. Edgar Weeks and others

Supreme Court of Michigan

June 13, 1876

Submitted on Briefs April 20, 1876

Appeal in Chancery from Macomb Circuit.

Decree affirmed, with costs.

Norris & Uhl, for complainants.

R. P & J. B. Eldredge, for defendants.

OPINION

Marston, J:

Upon the 25th day of October, 1871, Gilbert Hatheway made his last will and testament. By it he made specific bequests to different parties, aggregating in amount one hundred thousand dollars. All the rest, residue and remainder of his property and estate, of every name and nature, real personal and mixed, he gave, devised and bequeathed to his son James S. P Hatheway and his heirs forever, he, the said James, to pay all his debts, legacies and bequests. James was by the will designated and appointed sole executor, with full power to sell and dispose of the estate.

On the 26th day of the same month the testator died. The will was admitted to probate December 2, 1871, and the executor named therein required to give bond in the sum of two hundred thousand dollars for the faithful performance of his duty.

In accordance with such order a bond was executed, reciting that said James S. P. was executor and residuary legatee under and by said will. It then proceeded as follows: "Now, therefore, the condition of the present obligation is such that if the above bounden James S. P. Hatheway shall pay all the debts, legacies and costs of administration, due or to become due from said estate, then the before written obligation to be void and of no effect, otherwise to abide and remain in full force, virtue and effect."

This bond was dated December 2d, 1871, and at a session of the probate court held December 14th, it was examined and approved, and ordered filed and recorded in the probate office.

Among the bequests made in the will was one of fifteen thousand dollars to the village of New Baltimore. This not having been paid, the village was, by an order of said court, of December 9, 1873, authorized to sue the obligor and his sureties upon said bond, and in February, 1874, suit was commenced, which resulted in a final judgment being rendered November 18, 1874, in favor of the village, for upwards of seventeen thousand dollars. This judgment was afterwards, on error to this court, affirmed at the June term, 1875. Upon the 29th of June, 1875, execution was issued and a levy made upon property of James S. P. Hatheway.

Upon the 15th day of July, 1875, James, for himself and for the relief of the sureties, filed a bill of complaint in the circuit court for the county of Macomb in chancery. The above facts are all set forth therein and it is also therein alleged that complainants supposed and believed, shortly before and after the giving of said bond, that the value of the testator's estate, both real and personal, was two hundred and two thousand dollars, whereas it turns out that the estate falls far short of this amount; that there was supposed to be some sixty thousand dollars in government bonds deposited, which cannot be found; that another item of eighty thousand dollars, believed to be advanced at twelve and a half per cent. per annum, and also an interest in the profits of the business in which the money was employed, was, after investigation by complainant, acting upon legal advice, compromised at fifty thousand dollars in real and personal property. Other supposed amounts in much the same condition are set forth, as are also various other matters not necessary to be here referred to. The relief prayed for is as follows:

1. That each and all the defendant legatees under the will be enjoined from attempting to enforce payment of their legacies from complainant as executor or by suit upon said bond;

2. That all further proceedings to enforce the lien by virtue of a levy under the execution be enjoined;

3. That complainant and his sureties be released and discharged from the penalties and conditions of said bond, and that said judgment and all subsequent proceedings there under be vacated, annulled, and held for naught;

4. That said estate may be administered in the probate court, by complainant or some other suitable person, as administrator with the will annexed;

5. That the assets of said estate be marshaled and an account be had with complainant; that all just debts and reasonable disbursements made by him be allowed and adjusted, and that the legatees receive only their pro rata share of the estate;

6. That the fifth clause in the will, under which the village claims, be construed;

7. That a guardian ad litem be appointed for the minors; and for general relief.

To this bill the village, the judge of probate, and the sheriff, each of whom were made parties defendants, demurred. The demurrer was sustained, and the bill dismissed as to those defendants. An order was on the same day made and entered that complainants do forthwith pay the amount of the judgment rendered in favor of said village.

From the decree dismissing the bill, and this order, complainant Hatheway, for himself and the other complainants, appealed.

This controversy must depend entirely upon the condition and effect of the bond given by the complainant as residuary legatee. The real ground upon which complainant asks to be relieved is, that the assets turn out not to be so large as he, Hatheway, supposed and believed they would be at the time the bond was given. Conceding this, let us look at the position complainant occupied and the advantages he acquired as residuary legatee, and what the result would be in case the relief prayed for is granted. We must bear in mind at the outset, that any rule here laid down, or any conclusion arrived at, must be one applicable in all similar cases arising hereafter.

Our statute provides that when a will shall have been duly proved and allowed, the probate court shall issue letters testamentary thereon, to the person named executor therein, if he is legally competent, and shall accept the trust and give bond as required by law.--2 Comp. Laws, § 4364.

"Every executor, before he shall enter upon the execution of his trust, and before letters testamentary shall issue, shall give bond to the judge of probate in such reasonable sum as he may direct, with one or more sufficient sureties, with conditions as follows:

"First, To make and return to the probate court within three months a true and perfect inventory of all the goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him;

"Second, To administer according to law and to the will of the testator all his goods, chattels, rights, credits and estate, which shall at any time come to his possession, or to the possession of another person for him, and out of the same to pay and discharge all debts, legacies and charges, chargeable on the same, or such dividends thereon as shall be ordered and decreed thereon by the probate court;

"Third, To render a true and just account of his administration to the probate court within one year, and at any other time when required by such court;

"Fourth To perform all orders and decrees of the probate court, by the...