Morton v. Johnston

• Decision Date: 07 July 1900
• Citation: 124 Mich. 561,83 N.W. 369
• Court: Michigan Supreme Court
• Parties: MORTON v. JOHNSTON.

83 N.W. 369

124 Mich. 561

MORTON v. JOHNSTON.

Supreme Court of Michigan

July 7, 1900

Error to circuit court, Wayne county; Byron S. Waite, Judge.

Judicial settlement of the account of William Juhnston, administrator of the estate of William Johnston, Sr., deceased, in which Amy Johnston Morton contests the allowance of certain charges. From an order settling the account, the administrator brings error. Modified and affirmed.

Moore & Moore, for appellant.

T. M Morton and W. H. Woodbury, for appellee.

MONTGOMERY C.J.

The case below was an appeal from the allowance of the account of William Johnston, administrator of the estate of William Johnston, Sr. The appeal was tried before Judge Waite and a jury. It was claimed by Mrs. Morton that the administrator should be charged with the appraised value of the personal property, instead of the proceeds of the sale thereof; that a certain $225 claimed to have been paid for a tax title should not be allowed; that a charge in this account of $75 for services should not be allowed, for the reason that the administrator agreed to act without compensation; and that $150 credit to the administrator, allowed in his first accounting, should be charged back to him, for the same reason. The court determined, as matter of law, under the proofs, that the administrator had no right to sell the personal property, and charged his account with $761.50, the inventoried price, less $55, which had been credited to the estate as the proceeds of the sale of the property. The questions whether there was an agreement by the administrator to serve without compensation, and whether the tax title was purchased for the benefit of the estate, were submitted to the jury. The first question was answered in the affirmative and the latter in the negative. The court thereupon disallowed the item for tax title, and the charge of $75 for services in the present account, and also charged back $150 allowed for services in an earlier account.

1. It is claimed that the court should not have called a jury at all, as the case involves an accounting for services and allowances which are discretionary. But we are satisfied that it was proper to submit to the jury the distinct questions of fact which were decided. If there was an agreement to serve without compensation, no discretion of the court could be invoked in fixing the amount to be allowed. So, if the tax title was not bought for the benefit of the estate, it was not a proper charge. The case is in this respect unlike Gott v. Culp, 45 Mich. 267, 7 N.W. 767; Wisner v. Mabley's Estate, 70 Mich. 271, 38 N.W. 262; and the other cases cited by counsel for the administrator. That it is proper to submit a question of fact to a jury, see Comp. Laws, � 673; In re Stebbin's Estate, 94 Mich. 305, 54 N.W. 159; Grovier v. Hall, 23 Mich. 7.

2. The contestant testified that the administrator procured her consent to his appointment as administrator by agreeing to act without compensation. The administrator offered in evidence a consent that he be appointed administrator in Canada, which was excluded as immaterial. This ruling was right. We fail to see how it tended to negative the testimony of contestant.

3. Personal property came into the hands of the administrator inventoried at $761.50. In his account the estate was credited with but $65, proceeds of an auction sale of this property. It appears that in April, 1892, the administrator filed a petition, under section 9431, Comp. Laws, asking that he be authorized to sell the property at public or private sale. The probate judge made an order that he sell 'at private sale, at the best price obtainable.' The statute cited expressly provides that, in case...