Rosebrock v. Vondette, Docket No. 77-4426

• Court: Court of Appeal of Michigan (US)
• Citation: 271 N.W.2d 257,85 Mich.App. 416
• Docket Number: Docket No. 77-4426
• Parties: Michael ROSEBROCK, Plaintiff-Appellant, v. Tom VONDETTE, Administrator of the Estate of Michael Welense, Deceased, Defendant-Appellee. 85 Mich.App. 416, 271 N.W.2d 257
• Decision Date: 22 August 1978

Page 257

271 N.W.2d 257 Michael ROSEBROCK, Plaintiff-Appellant,
v.
Tom VONDETTE, Administrator of the Estate of Michael
Welense, Deceased, Defendant-Appellee. Docket No. 77-4426. 85 Mich.App. 416, 271 N.W.2d 257 Court of Appeals of Michigan. Aug. 22, 1978.
Released for Publication Nov. 13, 1978.

Page 258

[85 MICHAPP 417] Otto & Otto by Howard S. Otto, Saginaw, for plaintiff-appellant.

Philip S. Della Santina, Saginaw, for defendant-appellee.

Before D. E. HOLBROOK, Jr., P. J., and T. M. BURNS and VanVALKENBURG, ^* JJ.

[85 MICHAPP 418] VanVALKENBURG, Judge.

The unique set of facts in this case comes to us on an appeal from a decision of the Saginaw County Circuit Court wherein a motion for accelerated and/or summary judgment was granted by that court and the complaint dismissed with prejudice.

Plaintiff, born December 25, 1956, was struck by an automobile operated by Michael Welense on March 31, 1962. The latter died from causes not related to the accident on March 24, 1966, and his estate, consisting of $875, was probated on April 6, 1966, under the small estate act. M.C.L. § 708.41; M.S.A. § 27-3178(451). Pursuant to the provisions of that act, no administrator was appointed and no bond was furnished. The sum above mentioned was distributed to a son who had paid the funeral bill.

Nothing more occurred with regard to the estate until September 12, 1975, when a petition was filed in Saginaw County Probate Court by plaintiff praying for the admission of the last will and testament of Michael Welense, dated October 11, 1958, and for appointment of Tom Vondette as administrator with will annexed. All of the heirs were notified and a notice of hearing was published. The matter was heard on October 16, 1975. No heirs appeared, and Mr. Vondette was appointed as prayed for. He qualified on the same day and has been acting in his capacity as administrator since that date. The petition for the admission of the will also stated that a suit would be initiated against the fiduciary to recover under a public liability automobile insurance policy and not for the purpose of reaching any other assets of the estate. There was no appeal from these proceedings and no motion was made to set them aside.

[85 MICHAPP 419] Plaintiff reached majority at the age of 18 on December 25, 1974, and filed his complaint in the circuit court on October 28, 1975.

Attorneys employed by the insurance carrier filed an answer on behalf of defendant and also filed the above mentioned motion on January 5, 1976. The basis for the motion was that defendant's decedent passed away more than six years prior to the filing of the complaint and that more than three months had elapsed since the closing of the small estate.

The court rendered its opinion and order on October 28, 1977. Among other findings of fact and law, the judge acknowledged that the order of the probate court should have been appealed. Nevertheless, the motion was granted on authority of M.C.L. § 708.20; M.S.A. § 27.3178(430), and this appeal followed.

Two statutes, apparently in conflict as far as the above facts are concerned, will be discussed. M.C.L. § 600.5851(1); M.S.A. § 27A.5851(1) provides in part:

"If the person first entitled to make an entry or bring an action is under (18) years of age, insane, or imprisoned at the time his claim accrues, he or those claiming under him shall have 1 year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run."

M.C.L. § 708.20; M.S.A. § 27.3178(430), upon which the lower court relied, reads in part:

"All debts and obligations of any person shall be barred after 6 years from the

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date of his death unless presented to the probate court as provided by law or unless sooner barred by law, notwithstanding that no proceedings shall have been taken to probate such estate."

[85 MICHAPP 420] The issue in this litigation may be stated as whether a plaintiff's tort action against a decedent's estate is barred where the action is filed more than six years after the date of the death of the decedent and where the action is filed within one year after plaintiff has reached his majority.

Counsel for defendant in his brief has called our attention to In re Cook Estate, 366 Mich. 323, 327, 115 N.W.2d 98 (1962), wherein certain individuals, including a minor who had no general guardian, moved to reopen the hearing on claims in order to present damages arising from an automobile accident. The period of three months in which tardy claimants may seek such a reopening under M.C.L. § 701.19; M.S.A. § 27.3178(19) had elapsed. The probate court...