Lockerby v. Sawyer

• Decision Date: 02 October 1922
• Docket Number: No. 1.,1.
• Parties: LOCKERBY v. SAWYER et al.
• Court: Michigan Supreme Court

220 Mich. 147

189 N.W. 989

LOCKERBY

v.SAWYER et al.

No. 1.

Supreme Court of Michigan.

Oct. 2, 1922.

Appeal from Circuit Court, Hillsdale County, in Chancery; George W. Sample, Judge.

Suit by William H. Lockerby, trustee in bankruptcy of the estate of Walter H. Sawyer, against Walter H. Sawyer and others. Decree for defendants, and plaintiff appeals. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Merton Fitzpatrick, of Hillsdale (William K. Pattison and Isadore Vise, both of Chicago, Ill., and Amariah F. Freeman, of Detroit, of counsel), for appellant.

Henry Miltner, of Cadillac, and William J. Griffin, of Detroit, for appellees.

WIEST, J.

An examination of the record and briefs leads us to adopt the opinion of the learned circuit judge. The opinion follows:

‘The plaintiff in this case is trustee of Walter H. Sawyer, who was declared bankrupt by the United States District Court in bankruptcy. The defendants are the executors of the estate of William W. Mitchell, deceased. It is alleged, in the bill of complaint filed herein, that the said bankrupt and the defendants were attempting to defraud the bankrupt estate. By the terms of the last will and testament of the said William W. Mitchell, deceased, the said bankrupt was appointed one of the coexecutors of said estate. The bill of complaint herein asks for the discovery of any indebtedness on the part of the defendants, as executors of said estate, to the said Walter H. Sawyer, and also of any property interests of Walter H. Sawyer held by them, and especially asking that certain notes of $200,000 or cash be turned over to the plaintiff according to the terms of a certain bequest in the last will and testament of the said William W. Mitchell, deceased.

‘It is the contention of the plaintiff in this cause that defendants owe the bankrupt executors fees amounting to $10,955.16, with interest at 5 per cent. from January 1, 1917, and also that one-half of a legacy of $400,000 left to the bankrupt and his wife less $30,000 in personal notes of the bankrupt, and less also $59,000 in notes which were conceded not to be outlawed-in other words, $111,000-ought to be turned over by the defendants to the bankrupt's trustee, the plaintiff herein. It is further contended that the aforesaid $59,000 in notes should be turned over to the said trustee. It is the contention of the defendants that the plaintiff is not entitled to any of the relief prayed for in the said bill of complaint. * * *

‘According to the testimony in this cause the bankrupt was appointed one of the executors of William W. Mitchell, deceased. It further appears that soon after the death of the deceased it was agreed that Walter H. Sawyer was not to perform any work for the said estate as one of the coexecutors. It appears that he did not resign as executor, but that it was understood and agreed between him and his coexecutors mentioned in said will that he was to receive no pay as executor of said estate. It is also the testimony in this cause that, beyond the signing of some papers which were mailed to him by the active executors of the said estate, he did nothing as executor. It further appears from the undisputed evidence in this cause that a check for $10,955.16 was drawn to Dr. Walter H. Sawyer and that said sum was one-fourth of the total fees to be allowed as executor's fees of said estate. It also appears as undisputed that the check was sent to Walter H. Sawyer, directing him to turn it over, without cashing it, to Marie Mitchell Barry, a daughter of the deceased, whose allowance appeared to be insufficient to carry on her education and maintenance; and it further appears from the testimony that this method of passing the check through the said Walter H. Sawyer was a method devised by the active executors of said estate, not for the payment of fees to Dr. Sawyer, but that the amount might be paid to the said Marie Mitchell Barry to relieve her distress for funds. I find the foregoing to be the facts, according to the testimony, with reference to executor's fees, and I further find that the said Walter H. Sawyer did not perform any valuable services as executor for the said William W. Mitchell estate, and that he is therefore not entitled to any fees whatever, and that the trustee in bankruptcy cannot recover anything from the defendants by reason of fees alleged to have been earned by the said Walter H. Sawyer.

‘And it further appears from the testimony in this cause that the plaintiff claims that the sum of $200,000, less $30,000, in personal notes held by the said deceased, William W. Mitchell, against Walter H. Sawyer, less also the sum of $59,000 of notes which were not outlawed, but which under the provisions of the will could be set off against any legacy which would be left to the said Walter H. Sawyer or Harriet Belle Sawyer, his wife, by the said William W. Mitchell, deceased, leaving the sum of $111,000 as the sum to be paid under the provisions of the will of the said William W. Mitchell, deceased, as a legacy to Walter H. Sawyer. It was conceded at the time of the argument by counsel for the plaintiff that the claim of the trustee in bankruptcy against the said legacy of said bankrupt under said will of said deceased amounted to the sum of $111,000. The defendants' claim is that they set off against the legacy of Walter H. Sawyer the said personal notes amounting to $30,000, the said notes which were not outlawed amounting to $59,000, and $111,000 in notes which the parties admitted were outlawed. The plaintiff claims that he is not compelled under the terms of the legacy to accept the said $111,000 in outlawed notes. The defendants claim that the provisions of the will...