Rice v. Wilson

• Decision Date: 04 March 1902
• Citation: 89 N.W. 336,129 Mich. 520
• Court: Michigan Supreme Court
• Parties: RICE v. WILSON.

89 N.W. 336

129 Mich. 520

RICE v. WILSON.

Supreme Court of Michigan

March 4, 1902

Error to circuit court, Jackson county; Erastus Peck, Judge.

Proceeding by William J. Rice, claimant, against Mary E. Wilson administratrix of John C. Boder, deceased, contestant. Judgment for claimant, and contestant brings error. Affirmed.

This case was tried before the court without a jury, and a finding of facts and law made. The facts found are substantially as follows: The father and mother of claimant, William J. Rice were killed in a railroad accident in 1879. Suit was brought against the railroad company, and a large verdict obtained. One Mary C. Rogers, an aunt of William, was appointed his guardian. On December 23, 1879, the amount of the judgment was turned over to her, and a bond filed, with four sureties named Buyse, Casey, Bader, and Carey. The bond is in the usual form. Bader signed the bond upon condition that the assets be turned over to Carey for management. This was done. William at that time was four years old. The value of the assets was $14,700, which Carey took, managed, and controlled until his death, July 26, 1892. All the probate files in the estate of said William prior to January 7, 1896, are lost. Only the calendar entries are preserved, which show on May 8 1891, a request in writing by Bader and Casey to have the guardian file her account, citation issued, and an account for the years 1889 and 1890 filed May 21, 1891. The probate records show an order, dated June 6, 1891, that the guardian file within 30 days a new bond in the sum of $20,000; that on filing and approval of such bond Casey and Bader be released from all further responsibility. Carey never accounted to Miss Rogers for the moneys received by him, and she knew nothing as to the condition of the estate except what Carey told her, and she signed the accounts rendered upon the assurance of Carey that they were all right. The account for the years 1889 and 1890 commences with the following item 'To amount of personal property, as per report filed December 31, 1888, $10,972.28.' It contains an account of receipts and expenditures, and closes with the statement, 'Total amount on hand December 31, 1890, $11,961.77.' After Carey's death the only property found in his hands or in his name belonging to said ward was a house and lot and one mortgage of $1,725. August 25, 1892, Buyse was appointed executor of the last will of Carey. Miss Rogers, as guardian, presented a claim against Carey's estate for $10,027.78, which was allowed by the commissioners, less amounts paid since the death of Carey by his executor. From that allowance no appeal was taken. Buyse filed an account as executor July 16, 1894, but died April 2, 1895, without any hearing being had thereon. His executor, one Elson, filed Buyse's final account on November 25, 1895, which was duly allowed. Among the credits allowed in favor of the guardian was one of $1,875.10, paid by Buyse to her. One Harrington succeeded Buyse as executor of Carey's estate, and paid to William $1,982.86, to apply on his claim allowed against the Carey estate. June 6, 1891, Casey, Bader, Carey, and Miss Rogers went into the probate court, and Casey and Bader verbally asked to be released upon their bond for said guardian. She consented, and thereupon the order of release as above stated was made, and a new bond given by Carey and Buyse, the two other sureties upon the old bond, and approved. No notice of the application of said sureties for the release or of the hearing thereon was given to the ward or his next of kin. January 7, 1896, Miss Rogers resigned as guardian. Her resignation was accepted, and one Birney appointed guardian, and duly qualified. February 25, 1896, Birney filed a petition in the probate court asking that Miss Rogers be cited to render an account. A citation was issued returnable March 4th, and duly served. On February 24th she filed a sworn answer, stating that she turned over the entire assets of said estate to Carey; that they were managed and controlled by him as her agent; that she had rendered no account,--had been unable to do so, because she had no knowledge of the condition of the estate, except as was obtained from Carey, and that not in detail; that on two occasions Carey had prepared accounts, and requested her to sign them, and that she did so without any knowledge of the matters therein contained; that the greater part of the assets of said estate was squandered by Carey; that she had presented a claim against the estate of said Carey, which was allowed, as above stated; and that she had no property in her hands or under her control belonging to said minor's estate. On March 4th, the return day of citation, Miss Rogers appeared in the probate court, was sworn and examined, whereupon the court made a computation finding that Miss Rogers was accountable for the moneys which came into her hands, and interest thereon, amounting to $32,042.64, and gave her credit,...