Raseman v. Raseman

• Decision Date: 20 March 1926
• Docket Number: No. 99.,99.
• Citation: 234 Mich. 237,208 N.W. 35
• Parties: RASEMAN v. RASEMAN et al.
• Court: Michigan Supreme Court

234 Mich. 237

208 N.W. 35

RASEMAN

v.RASEMAN et al.

No. 99.

Supreme Court of Michigan.

March 20, 1926.

Appeal from Circuit Court, Wayne County, in Chancery; Frank Shepherd, Judge.

Suit by Charles H. Raseman against Richard E. Raseman and others. From a decree of dismissal, plaintiff appeals. Affirmed.

Emma Hasselbacher Raseman died in the city of Detroit on March 19, 1899, survived by her husband, defendant Richard E. Raseman and two sons, plaintiff Carl H. Raseman and defendant Richard P. Raseman. She left a will, which was duly probated, clause 9 of which is as follows:

‘Ninth: I hereby give and grant to my said executor and trustee complete power to dispose of my entire estate, real and personal, as may seem to him advantageous and convenient for the better realization of an income therefrom for the support and education of my surviving children, as well as for his own maintenance and support, giving him full power and authority to sell, assign and convey my estate, real and personal, upon such terms as may seem to him right for such purpose, hereby declaring my entire confidence in his discretion in such matters.’

The husband qualified as trustee, and managed the trust property until July 8, 1919, when he resigned, and on August 4, 1919, defendant Union Trust Company was by the probate court duly appointed his successor as trustee, and qualified. Ninety-eight per cent. of the trust property was real estate, some improved and productive, some vacant and nonproductive. The property here involved, being 20 acres on Van Dyke avenue and some vacant lots, was not productive. With the growth of Detroit it increased in value. There was a mortgage on some of the property which was pressing. On July 28, 1923, defendant Union Trust Company, without obtaining a license to sell from the probate court, and assuming to act under the clause of the will above quoted, entered into a contract with defendant Michigan Land & Home Corporation for the sale of the Van Dyke property for $60,521.61, with a down payment of $10,521.61 and deferred payments. The other defendants are purchasers of vacant lots sold under like circumstances.

November 26, 1923, defendant Union Trust Company filed in probate court its fourth annual account. Notice of hearing on its allowance was given. The account showed the sale of the real estate, and a charge for brokerage fee or commission on its sale was made. Plaintiff, Carl H. Raseman, appeared on the hearing, and objected to the allowance of the account on two grounds: (1) That the trustee had no authority to make the sale; and (2) that the trustee could not charge an agent's commission. The matter seems to have dragged along in probate court, and on April 4th following the trust company filed an amended account and a petition for an allowance for extraordinary services, and an amended petition was later filed. This amended account likewise showed the conversion of the real estate into personal property, and the petition asking for an additional allowance set up the negotiations for and sale of the real estate, and asked compensation therefor. Bearing date April 24, 1924, but not filed until May 15th, an order was made by the probate court allowing the account, except that the amount asked for extraordinary services was reduced, and the statutory fee of trustees on the sale of real estate was allowed. There was no appeal from this order. We have accepted the verity of the calendar entries in giving these dates.

This bill was filed April 15, 1924, seeking to set aside the sale on the ground that the trust company was without authority to make it; that the power of sale was personal to the trustee named in the will, and did not devolve upon his successor; and, no authority to make the sale having been obtained from the probate court, it was a nullity. Defendant trust company insisted that the power did pass to it as successor trustee; that such question was determined by the probate court, and of necessity had to be determined on plaintiff's objections to the allowance of its account, and such determination, not having been appealed from, is res adjudicata; and that, if such power was personal to Richard E. Raseman, the original trustee, it was exercised by him in approving the sale and actively assisting in making it. Defendant Michigan Land & Home Corporation stressed the laches of plaintiff, and insisted that it had expended large sums of money in platting and putting the property on the market; that 173 lots had been sold to purchasers in good faith; and that plaintiff was estopped from asserting his claim.

The trial judge held that the power of sale given the original trustee by the will did not pass to the trust company as successor trustee, but that the decision of the probate court was res adjudicata on that question. He was also impressed with the claim of the Michigan Land & Home Corporation. From a decree dismissing the bill plaintiff appeals, and his counsel thus clearly states the issue on this appeal:

‘It is believed that the record raises these questions:

‘(1) Did the power of sale granted by the will to the original trustee pass to the substituted trustee?

‘(2) Did the order of the probate court (Exhibit 1-D, p. 207), dated April 24, 1924, but signed and entered May 30, 1924, render the issues herein res adjudicata?

‘(3) Was the plaintiff estopped from asserting his right to have the sales canceled?’

Argued before BIRD, C. J., and SHARPE, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ. Frank D. Eaman, of Detroit (Joseph Schiappacasse and Douglas, Barbour, Brown & Rogers, all of Detroit, of counsel), for appellant.

Campbell, Bulkley & Ledyard, of Detroit (Selden S. Dickinson and Edward P. Wright, both of Detroit, of counsel), for appellee Union Trust Co.

Moloney & Wing, of Detroit (Edmund E. Shepherd, of Detroit, of counsel), for appellee Michigan Land & Home Corporation.

FELLOWS, J. (after stating the facts as above).

We find it necessary to consider but one of the question involved in the case, although the excellent briefs and the fair presentation of the case by all counsel offers a temptation to treat the case in all its aspects. But to sustain the bill plaintiff must succeed upon all his contentions. If he fails in any one of them he cannot succeed in the case. As we have reached a conclusion adverse to him on one of the questions involved, we shall only consider that question. Primarily, plaintiff must succeed on the first question. His bill is bottomed on the correctness of his claim of want of authority of the substituted trustee to make the sale, but, if that question has been necessarily adjudicated in a court having jurisdiction of the parties and the subject-matter adverse to such claim, then such adjudication is res adjudicata, and he is bound by it whether such decision is right or wrong. We shall therefore consider only the question of res adjudicata.

Before discussing the cases, let us restate what was before the probate court. The accounts submitted showed the conversion of the real estate into personal property, and the trustee was charged with such personal property in the inventory submitted, and the real estate was said to be the same, ‘except as shown in this account,’ making, in effect, a credit for the real estate sold. In the accounts and petition compensation for making the sale either in the form of commissions or extra compensation was asked. Manifestly, if the sale was a nullity, the trust company was not entitled to a credit in the real estate account, nor should it be charged with the proceeds of a void sale in the account of personal property. It is equally obvious that the trust company was not entitled to compensation for making a sale it had no right or authority to make. Indeed, that was the view of the attorney then representing plaintiff, and that was the issue then tendered in the probate court. There was, therefore, something before the probate court besides the simple checking over of items of receipts and disbursements.

We shall consider only a portion of the Michigan cases, as we are satisfied they have disposed of the question. Doubtles...