King v. Emmons

• Decision Date: 24 February 1938
• Docket Number: No. 9.,9.
• Citation: 277 N.W. 851,283 Mich. 116
• Parties: KING v. EMMONS et al.
• Court: Michigan Supreme Court

283 Mich. 116

277 N.W. 851

KING

v.EMMONS et al.

No. 9.

Supreme Court of Michigan.

Feb. 24, 1938.

Suit by Paul H. King, guardian ad litem, against Harold H. Emmons and the George H. Cummings Foundation to vacate probate court orders approving accounts of defendant Emmons as executor and trustee of the estate of George H. Cummings, deceased, and for an accounting, wherein the prosecuting attorney of Wayne County was permitted to intervene as a party plaintiff, wherein a temporary receiver was appointed, and wherein the Foundation filed a cross-bill against defendant Emmons. From an order denying its motion to dismiss the bill and from the order appointing the receiver, the George H. Cummings Foundation appeals.

Suit dismissed as to Paul H. King, guardian ad litem, orders vacated without prejudice, and case remanded for further proceedings in accordance with opinion.Appeal from Circuit Court, Wayne County, Henry G. Nicol, judge.

Argued before the Entire Bench, except BUTZEL, J.

Sempliner, Dewey, Stanton & Honigman and Fred G. Dewey, all of Detroit (Thomas L. Poindexter, of Detroit, of counsel), for appellant.

E. Cyril Bevan, of Detroit, for appellee.

NORTH, Justice.

The bill of complaint herein was filed in behalf of and for the purpose of protecting the interests of beneficiaries of a trust created by the will of George H. Cummings, deceased. Each of the defendants filed a motion in the circuit court for the dismissal of the bill of complaint. The motions were denied. Leave having first been obtained, the defendant George H. Cummings Foundation has appealed. As hereinafter noted, an appeal has also been taken by this defendant from the order of the circuit court appointing a temporary receiver.

The first question commanding consideration is whether Paul H. King, as guardian ad litem appointed in the probate court, is a proper party plaintiff. On the motion to dismiss the statements of facts in the bill of complaint must be accepted as true.

George H. Cummings died on June 7, 1920, leaving a will which, among other provisions disposing of his estate, contained the following:

‘Seven: All the rest, residue and remainder of my estate, either as it shall exist at the time of my death, or with accruals or additions thereto, as hereinabove provided, I give, devise and bequeath to Nellie G. Rockafellow and Harold H. Emmons, to be held by them in trust for the following purposes, namely:

‘They shall devote the income from the said residuum and so much of the principal as in their best judgment shall seem wise, to the establishment and maintenance of a home for the care, maintenance and education of crippled children, who otherwise are destitute of the proper and necessary means for their care, medical attendance and education, and I hereby instruct and empower my said trustees, either to establish such institution as a new enterprise, or to take over and control an established institution for similar purposes, and to expand and establish it on a proper basis and in a proper manner. I further empower my said trustees at their discretion to transfer such institution and such fund to a corporation which may with their permission be formed to take over and carry on such institution for crippled children, the same to be organized, however, in a manner which shall be satisfactory to them.’

Defendant Harold H. Emmons and Nellie G. Rockafellow were appointed executors of the estate in July, 1920. An account of these executors was filed and allowed in December, 1924. Nellie G. Rockafellow died the following month. Thereafter defendant Harold H. Emmons continued to administer the Cummings estate as the sole surviving executor. The total assets were in excess of a million dollars; and with the exception of a few provisions involving comparatively small amounts, the testator provided that his estate should pass to the trustees under the provision hereinbefore quoted. The bill of complaint alleges maladministration of the estate and charges that defendant Emmons has misappropriated large sums of money belonging to the estate and by fraudulent concealment from and misrepresentation to the probate court has obtained the approval and allowance of his accounts in fraud of the trust created in the Cummings' will for the benefit of crippled children. In the main the relief sought is that the orders of the probate court approving the accounts of defendant Emmons as executor or trustee be set aside on the ground that they were procured by fraud and for an accounting as to alleged misappropriated assets of the estate.

On the 19th day of June, 1928, the probate court entered an order purporting to approve and allow ‘the final account of Harold H. Emmons, sole surviving executor * * *.’ It was recited in the order that the portion of the estate with which we are here concerned should be assigned to Emmons as surviving trustee; and a bond in the sum of $100,000 was required. Such a bond was not given and letters of trusteeship were not issued until April, 1935, at which time the bond was reduced to $100. On or about August 9, 1930, defendant Emmons caused to be organized and incorporated a Michigan nonprofit corporation under the name of the George H. Cummings Corporation, but this name was later changed to George H. Cummings Foundation. This corporation was formed in contemplation of transferring to it the assets of the Cummings' trust for crippled children. However, the George H. Cummings Foundation remained inactive and no assets of the estate were transferred to it until August, 1935. In June, 1935, Emmons filed a final account as ‘sole surviving executor and trustee.’ The order on this petition was entered August 7, 1935, and recited that the final account of Emmons was allowed and he was ‘discharged as such executor and trustee.’ The order further approved Emmons' designation of the George H. Cummings Foundation as the recipient of the fund provided in the will for the benefit of crippled children and of the transfer of such assets to said foundation and such assets were so assigned; and further provision was made in the probate court order for compensation to Emmons as sole surviving executor and trustee and also for legal services performed for the benefit of the estate.

At the request of the probate judge, the executor on February 11, 1936, filed a so-called supplemental account which disclosed more in detail the various transactions of the executor. In connection with this phase of the proceedings plaintiff Paul H. King was appointed by the probate court ‘guardian ad litem for any person or persons unborn, unascertained, or legally incompetent to act in their own behalf, and of any minors, societies, corporations, institutions or other possible or contingent beneficiary under the trusts created by the last will and testament of George H. Cummings, deceased.’ Further the probate court on the 20th of May, 1936, ordered and directed the plaintiff herein to file a bill of complaint demanding an accounting from Harold H. Emmons. The bill of complaint was filed in this cause on the same date.

As before indicated, the first question for consideration on this appeal is whether this suit in the circuit court in chancery, under the circumstances above outlined, is one properly brought by and which can be properly prosecuted by Paul H. King, guardian ad litem appointed in the probate court proceedings. It is the contention of appellant that Mr. King as a guardian ad litem appointed in the probate court can have no standing or authority to prosecute this suit in the circuit court. This contention leads to a consideration of the powers of the probate court in this particular.

Appellee asserts that he is a proper party plaintiff under the following statutory and rule provisions:

‘When, upon filing or hearing of an account of a trustee in a probate court, or any petition allowed by this chapter to be filed in such court, it appears to the court that the interest of a person unborn, unascertained or legally incompetent to act in his own behalf is not represented otherwise than by the trustee, the court may, and upon the request of any person interested shall, appoint some competent and disinterested person to act as guardian ad litem for such person and to represent his interests in the matter. The person so appointed shall make oath to perform his duty faithfully and impartially and shall be entitled to such reasonable compensation for his services as the court may allow.’ 3 Comp.Laws 1929, § 15899.

‘The (probate) court may, when it shall be deemed necessary, appoint a guardian ad litem or a next friend to appear for any minor or other person under legal disability, to represent him in any matter pending before the court, or to prosecute any matter or proceeding in his behalf, with or without notice, as the court may direct. * * *’ Michigan Probate Rule No. 12.

It must be borne in mind that the instant suit is not an appeal from the probate court, but instead is a separate independent suit originally instituted in the circuit court in chancery. Further the unknown and unascertained beneficiaries are in the position of parties plaintiff, not defendants. The above-quoted statute provides only for the appointment of a ‘guardian ad litem for such person and to represent his interests in the matter.’ The designation ‘guardian ad litem’ has a very definite meaning in the law, and it must be assumed the legislature used it in its proper sense. If the quoted section of the statute is so construed, the conclusion...