Morley v. Donovan (In re Donovan's Estate)
Decision Date | 19 March 1934 |
Docket Number | No. 66.,66. |
Citation | 253 N.W. 552,266 Mich. 362 |
Parties | In re DONOVAN'S ESTATE. MORLEY v. DONOVAN. |
Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oakland County; Glenn C. Gillespie, Judge.
Final accounting of Walter G. Morley, executor of the estate of Timothy R. Donovan, deceased. From an order of the circuit court modifying an allowance of commissions to the executor by the probate court, the executor and Theresa F. Donovan, residuary legatee, appeal.
Judgment in accordance with opinion.
Argued before the Entire Bench.
Rowland M. Connor, of Detroit, for executor.
Monaghan, Crowley, Reilley & Kellogg, of Detroit, for residuary legatee.
Neither party is satified with the order entered in this matter by the circuit court, and both have appealed. We find ourselves unable to agree entirely with the opinion of the learned circuit judge, for the reasons hereinafter given. Only one question is involved here, viz.: Shall the executor's commissions be computed (1) in accordance with the statute fixing compensation in force at the time of the death of the testator and the appointment of the executive (section 15928, Comp. Laws 1929); (2) under the statute in force at the time of approval of the executor's final account (Act No. 209, Pub. Acts 1931); or (3) by prorating through payment at the rates in effect when the various services were rendered?
This question is a new one in this state. It has been held in Alabama and Missouri that the commission is determined by the law in effect at the time the particular services are rendered. Gould v. Hayes, 19 Ala. 438; Key v. Jones, 52 Ala. 238; In re Estate of D. G. Tutt & Co., 41 Mo. App. 662. Thus, compensation for a part of the services may be paid under one statute and the balance under a later act.
New York, California, Maryland, and Iowa courts have held that the statute in effect at the time of final settlement of the account governs. In re Naylor's Estate (Sur.) 164 N. Y. S. 462;In re Daly's Estate, 99 Misc. 203, 165 N. Y. S. 792;In re Barker, 186 App. Div. 317, 174 N. Y. S. 230;In re King's Estate, 121 Misc. 530, 201 N. Y. S. 239;In re Spires' Estate, 126 Cal. App. 174, 14 P.(2d) 340;Gaines v. Reutch, 64 Md. 517, 2 A. 913, 914;Brown's Estate v. Hoge, 198 Iowa, 373, 199 N. W. 320;In re Estate of Leigh, 196 Iowa, 1102, 195 N. W. 1005.
After a discussion of both lines of authority cited, the circuit court said: His opinion is entitled to the most careful consideration, but it overlooks the provisions of the Constitution of this state and the uniform holdings of this court.
The testator in the instant case died February 13, 1931. Act No. 209 of the Public Acts of 1931 became effective on September 18, 1931. The executor's account and a petition for its allowance were filed on May 16, 1933, and, after hearing objections, the final account, as amended, was allowed by the probate court on June 12, 1933. The executor's commissions were computed at the rate of 1 per cent., prescribed in section 15928, Comp. Laws 1929. The law then in effect allowed a 2 per cent. commission to the executor and was the only authority for an award of compensation by the probate court. The former law had been amended, and, in its new form, had been in operation for one year and nine months. Therefore, the action of the probate court was without legal authority.
Grady v. Hughes, 64 Mich. 540, 31 N. W. 438, 440, quoted in Corby v. Durfee, 96 Mich. 11, 55 N. W. 386.
The circuit court, on appeal, was likewise in error in apportioning the commissions according to the length of time the executor served under the old and new statutes. He should have allowed the claim of the executor at the rate of 2 per cent., and we so hold.
In re Daly's Estate, 99 Misc. 203, 165 N. Y. S. 792, 796.
The date of the making of the order allowing the award is determining, and the law then in effect governs the compensation to be allowed to the executor. See, also,...
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...v. Scholten, 238 Mich. 679, 214 N.W. 320;MacKenzie v. Union Guardian Trust Co., 262 Mich. 563, 247 N.W. 914;In re Donovan's Estate, 266 Mich. 362, 253 N.W. 552, 91 A.L.R. 1418;In re Estate of Jeffers, 272 Mich. 127, 261 N.W. 271;In re Estate of Meredith, 275 Mich. 278, 266 N.W. 351, 104 A.L......
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Eddy's Estate, In re, s. 31-36
...the prior act by removing the provision voiding an order which did not contain the required recitals. In In re Donovan's Estate, 266 Mich. 362, 253 N.W. 552, 91 A.L.R. 1418, we held that changes in procedure apply to existing proceedings. Appellant's 10-page appeal did not question the suff......
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Taylor v. Palmer, 14-2629
...period that has been applicable since 2011. While proceduralrules generally have only prospective effect, see In re Donovan's Estate, 253 N.W. 552, 553-54 (Mich. 1934), applying the six-month deadline to Taylor's case does not apply a new rule retroactively but is simply the proper applicat......
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Franklin's Estate, In re
...the law in force at the time of the settlement of the account governs the amount of compensation allowed. In re Donovan's Estate, 1934, 266 Mich. 362, 253 N.W. 552, 91 A.L.R. 1418; In re Barker, 1921, 230 N.Y. 364, 130 N.E. 579; In re Barrett's Estate, 1925, 124 Misc. 699, 209 N.Y.S. 678; I......