Sutphen v. Ellis

• Decision Date: 16 January 1877
• Court: Michigan Supreme Court
• Parties: Peter O. Sutphen and Another v. Squire W. Ellis and Another

35 Mich. 446

Peter O. Sutphen and Another v. Squire W. Ellis and Another

Supreme Court of Michigan

January 16, 1877

Submitted on Briefs January 9, 1877

Appeal in Chancery from Livingston Circuit.

Defendants entitled to a decree, and the decree reversed with costs of both courts.

S. F Hubbell and H. H. Harmon, for complainants, argued that the assignment of the mortgage by Ann Sutphen was unauthorized and void, as she had no power to dispose of it in her own right or as executrix; that in her own right she had under the will merely the use of the estate, a mere life interest at most, with remainder over; and that as executrix she had no power over the estate until after probate of the will and issuance of letters testamentary: Comp. L. 1871, § 4341; 2 Rev. Stat. of N. Y., p. 71, § 16; and this did not take place until September 29, 1869, after her death.

D. & T. F. Shields, for defendants, argued that the bequest to Ann Sutphen certainly gave her the right to dispose of the property; and the same property was not willed to the nephews and neices, but only what remained of it at her death, and she took an absolute estate: 2 Redfield on Law of Wills, 385; White v. White's Exs., 21 Vt. 250; Helmer v. Shoemaker, 22 Wend. 137; Jackson v. Delaney, 13 Johns. 537; Jackson v. Robbins, 15 Johns. 169. But if she had not such a property in the notes and mortgages as entitled her to sell and dispose of them as she pleased (which we claim she had), yet as sole executrix she had a right to receive the money upon them, deliver them up to be cancelled, and to discharge the mortgage of record. If instead of doing this, she assigned them to one of the defendants, with authority to discharge and deliver them up, she was still acting within her authority as executrix or owner, and her acts would be binding on all concerned; and if she wasted, misappropriated, or failed to account for the proceeds, those interested must proceed upon her bond, or otherwise; and the defendants being in possession of their own papers after due, the law presumes they came lawfully into such possession upon payment of the same; and if any one claims the contrary, it is incumbent upon him to allege and prove the same.

The complainants having found, upon their coming into office, that the notes and mortgage had been assigned, by the sole executrix and widow of their testator, who claimed to own the same, and having been by the assignee discharged of record, and the complainants never having had possession of the same, and said papers (if not legally assigned) belonging, not to the estate of John S. Sutphen, but to certain of his nephews and neices under the provisions of his will, and the bill containing no allegations that they or their proceeds, or the amount secured by them, were necessary to pay any indebtedness against the estate of John S. Sutphen or Ann Sutphen, the complainants are not in a situation to maintain this suit, but the same ought to be brought by the owners of said notes and mortgage.

OPINION

Cooley, Ch. J.

The bill in this case is filed to foreclose a mortgage given by defendants to John S. Sutphen in his lifetime, and constituting a part of his estate at the time of his decease, which took place in March, 1868. Sutphen, at his death, left a will, by which he appointed his wife, Ann Sutphen, his sole executrix, and disposed of his property as follows:

"I give and bequeath unto my beloved wife Ann, all of my estate, both real and personal, during her natural life, for her use; but after the death of my said wife, I hereby bequeath unto the children of my brothers and sisters, each an equal share of what may be left of my said estate after the death of my wife, except" certain who are named.

Ann Sutphen survived her husband, and without probating the will took the mortgage in controversy and disposed of it by assigning it to the wife of the principal defendant, Squire W. Ellis. She died in 1869, and the will was afterwards probated, and letters of administration with the will annexed taken out by these...