Tussing v. Central Trust Co.

• Decision Date: 15 August 1929
• Docket Number: No. 3599.,3599.
• Citation: 34 F.2d 312
• Parties: TUSSING et al. v. CENTRAL TRUST CO. et al.
• Court: U.S. District Court — Western District of Michigan

34 F.2d 312 (1929)

TUSSING et al. v. CENTRAL TRUST CO. et al.

No. 3599.

District Court, E. D. Michigan, S. D.

August 15, 1929.

Archibald D. Jones, of Lansing, Mich., for plaintiffs.

Foster & Cameron, of Lansing, Mich., for defendant McLouth.

Charles H. Hayden, of Lansing, Mich., for defendant Trust Company.

SIMONS, District Judge.

This cause is before the court on a motion by the defendants to dismiss the bill of complaint on the ground that such bill shows on its face that this court is without jurisdiction herein.

The bill, which was signed and verified, on information and belief, by counsel for the plaintiffs on their behalf, was filed by Emerson S. Tussing, a resident and citizen of Oregon, and Edna B. Vandenburg, a resident and citizen of Idaho, as plaintiffs, against the Central Trust Company, a Michigan corporation, and Willis McLouth, a resident and citizen of Michigan, as defendants. It alleges that the plaintiffs are heirs at law of Daniel W. Tussing, deceased, that the defendant Central Trust Company has been appointed, by the probate court for Ingham county, Mich., administrator of the estate of said deceased, and that the defendant McLouth is the largest unsecured creditor of said deceased; that the defendants have recently filed in said probate court petitions alleging that the personal assets of the estate of said deceased are insufficient to pay its debts and that it is necessary that the real property of said estate be sold for the payment of said debts, and praying that a license be granted by said probate court to said administrator to sell said real property at private sale; that the purpose of the defendant administrator in filing said petition was to acquire said property, indirectly, for itself, by means of this sale, at a price less than its true value; that, to effect such purpose, said defendant has mismanaged and misused said property and thereby depleted its income and depreciated its market value; that said administrator has not filed any report or account with said probate court as required by law, and that the plaintiffs are unable to obtain information concerning the assets, expenses, or financial condition of said estate; that they are informed and believe that the personal property of said estate is sufficient to pay all fixed claims against said estate and its expenses of administration, and that there is no immediate necessity for the sale of said real property; that the defendant McLouth is under the domination of said administrator, and as a result of such domination has become unnecessarily alarmed over the payment of his claim against said estate, and has been persuaded by the defendant administrator to join it in praying for an immediate hearing of the aforesaid petition by the aforesaid probate court; and that, "unless the Central Trust Company, as administrator, and Willis McLouth be restrained by an order of this Court from prosecuting its said petition for license to sell and its said petition for an immediate hearing and order to sell, a fraud will be consummated upon your orators and said estate will suffer great and irreparable loss and your orators and the other heirs at law of said estate will be deprived of their just inheritance and will otherwise suffer great damage." The bill prays that this court "will require said Central Trust Company to make a full complete and detailed accounting of all moneys received and expended as administrator and belonging to the estate of the said Daniel W. Tussing, and said account when established may by a decree of this court be certified to and allowed by the Probate Court for the County of Ingham and the State of Michigan"; that this court issue an injunction, at first temporary and later permanent, "commanding said Central Trust Company and all persons claiming to act under its authority, direction or control to absolutely desist and refrain from bringing its petition for a license to sell the real estate of the estate of Daniel W. Tussing, deceased, on for a hearing before the Probate Court for the County of Ingham, and that they refrain from selling or advertising for sale any of the real estate belonging to the estate of Daniel W. Tussing"; and that the same injunctive relief be granted by this court against the defendant McLouth.

Both defendants have filed sworn answers denying all of the allegations of fraud and wrongful conduct contained in said bill, but such allegations must, of course, be accepted as true for the purposes of this motion to dismiss.

The probate court in the state of Michigan was created by the Constitution (article 7, §§ 1, 13) of the state, and is a court of record having general jurisdiction of matters relating to the settlement of estates of deceased persons (section 13764, Michigan Compiled Laws of 1915), including the appointment and control of administrators. The jurisdiction of the probate court over the administration of estates of deceased persons is, under the laws of Michigan, exclusive except in cases where its remedies are inadequate or the interposition of a court of equity therein is necessary for some auxiliary purpose in aid of the jurisdiction, properly acquired, of such court of equity. Brooks v. Hargrave, 179 Mich. 136, 146 N. W. 325; Colvin v. Jones, 194 Mich. 670, 161 N. W. 847; Allen v. Allen, 209 Mich. 362, 176 N. W. 587.

Section 13850 of the Michigan Compiled Laws of 1915 provides that an "administrator shall have a right to the possession of all the real as well as personal estate of the deceased, * * * and may receive the rents, issues, and profits of the real estate until the estate shall have been settled, or until delivered over by order of the Probate Court to the heirs or devisees." Under this statute an administrator is entitled to the possession of the real estate of his decedent during his administration of the estate, as long as such possession may be necessary for the payment of the debts of the deceased, subject to the power of the probate court to order the delivery thereof to heirs or devisees on a proper showing that the personal property of said estate is sufficient for the payment of such debts. Long v. Landman, 118 Mich. 174, 76 N. W. 374; Chapin v. Chapin, 229 Mich. 515, 201 N. W. 530.

Section 13987 of said Compiled Laws provides that real estate of a deceased person may be sold upon petition of an administrator and under a license of the probate court when it shall appear to that court that the personal property of such deceased in the hands of his administrator "is insufficient to pay the debts of the deceased and the charges of administering his estate, or whenever it shall appear to the court that it is for the best interests of all persons interested in the estate that his real estate or some part thereof be sold for such purpose in lieu of disposing of the personal estate," or "when it shall appear to the court that a sale of such real estate is necessary to preserve the estate or to prevent a sacrifice thereof." Sections 13989 to 14028, both inclusive, of said Compiled Laws, provide in great detail the necessary procedure to be followed by an administrator in seeking and executing such a license, including requirements for a verified petition, notice thereof, a hearing thereon, a report of sale, and confirmation of any sale made. Section 13992 requires the probate judge to "hear and examine the allegations and proofs of the petitioner and of all persons interested in the estate who shall think proper to oppose the application." Section 13993 provides that the administrator "may be examined on oath, and witnesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the Judge of Probate." Section 14008 provides for confirmation of such a sale "if it shall appear to the Judge of Probate that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a...