Williams v. Grossman
| Decision Date | 27 August 1980 |
| Docket Number | Docket No. 58766,10,Nos. 8,s. 8 |
| Citation | 293 N.W.2d 315,409 Mich. 67 |
| Parties | Everleanna WILLIAMS, Plaintiff-Appellant, v. Steven A. GROSSMAN, Administrator of the Estate of Eddie Lee Garnett, deceased, and the City of Detroit, a Municipal Corporation, Defendants-Appellees, and Will Garnett, Jr., and the Penn Central Railroad, a Foreign Corporation, Defendants. Calendar |
| Court | Michigan Supreme Court |
Harry D. Hirsch, Jr., Southfield, for plaintiff-appellant; E. R. Whinham, Jr., Southfield, of counsel.
Hyman, Gurwin, Nachman, Friedman & Winkelman by A. Benjamin Henson, Southfield, for defendant-appellee, Steven A. Grossman, administrator of the Estate of Eddie Lee Garnett, deceased.
Everleanna Williams, the plaintiff, was a passenger in an automobile driven by Eddie Lee Garnett when it struck a railroad viaduct and he was killed. Williams commenced this action in circuit court against the administrator of Garnett's estate, Steven A. Grossman, and others, 1 within the three-year limitational period, but over two years after an order had been entered in the probate court closing the estate. No notice of the hearing on claims or of the pendency of probate proceedings had been given to Williams other than such as is provided by newspaper publication.
The circuit judge granted Grossman's motion for accelerated judgment on the ground that Williams had failed to file a claim in the probate estate or to commence this action before the estate was closed. 2 The Court of Appeals affirmed.
We granted leave to appeal to consider whether a person having a cause of action for negligence against a decedent is entitled to notice, in addition to whatever notice is provided by newspaper publication, of the time for filing and the hearing on claims against the decedent's estate.
We subsequently asked the parties to file supplemental briefs on "(w)hether In re Curzenski Estate, 384 Mich. 334 (183 N.W.2d 220) (1971), should: (a) be overruled and, if so, (b) whether there is any need to reach and decide the issue of whether probate court notice procedures are constitutionally (adequate)". In that case this Court declared that an action cannot be commenced directly against the personal representative of an estate after it has been closed.
We overrule In re Curzenski Estate. Although the probate of an estate has been completed and the estate closed, where a person has an action which by statute may be commenced directly against the personal representative of the decedent without first filing a claim against his probate estate, 3 the administration of the estate is "incomplete" within the meaning of the statute and upon petition the estate may be reopened 4 to provide a suable person so that the action can be commenced. Because the person having the right of action has not filed a claim in the probate proceeding (or, before it was closed, notice of suit pending), recovery of money damages is limited to sources other than assets of the probate estate theretofore distributed, e.g., to sources such as the estate's right of indemnification from an insurer or the obligation of the Motor Vehicle Accident Claims Fund 5 to compensate victims of uninsured drivers. 6
We see no need to decide whether notice should have been given to known creditors 7 the issue on which we first granted leave to appeal. All the assets of this probate estate have been distributed to Will Garnett, Jr. Although he was named as a defendant in this action, he has not been served; accordingly, a determination that notice should have been given could not be the basis of a money judgment against him. Nor, considering the state of the law and the practice at the time of the asserted failure to give notice, would such a determination justify a personal judgment against the former fiduciary for failing to give such notice.
While a person with a cause of action in negligence against a decedent may file a claim in the probate court, this is rarely, if ever, done.
A statute, which in general bars actions against the personal representative of a decedent, permits commencement of an action for negligence, 8 and provides that if the plaintiff files notice of suit pending in the probate court the assignment of property to heirs and payment of most debts shall be deferred until the litigation is concluded. 9
This Court has held that the statute makes "it optional upon the part of a claimant to file a claim based upon a tort in the probate court or file a tort action in the circuit court". 10
While a person asserting that he has been damaged by a decedent's negligence may thus submit his claim to the probate court, ordinarily a negligence action is commenced in district, common pleas or circuit court.
The principal source for recovery of judgments rendered in automobile negligence cases is automobile liability insurance, not other assets of the defendant or of his estate. When the defendant dies and his estate is probated, notices of suit pending often, it appears perhaps even ordinarily, are not filed in the probate proceeding. The probate of the estate proceeds apace without regard to any automobile negligence action pending against the decedent or the personal representative of his estate. The estate is fully administered, creditors are paid and assets are distributed to heirs although the negligence action is still pending.
An action against a decedent is maintained by naming his personal representative as the defendant. If administration has not been sought by a spouse or other family member, a creditor may seek to have an administrator appointed. 11
In the instant case, an administrator was appointed on June 22, 1972, and the estate was closed 8 1/2 months later on March 6, 1973, less than one year after the automobile accident on March 19, 1972.
A section of the Probate Code permits reopening an estate for the purpose of administering "after discovered assets or to complete the administration of the same in case said estate was closed without being fully administered by the fiduciary or court * * * : Provided, however, That the failure of a claimant to file a claim against said estate during the original administration thereof shall not be a cause for reopening the same or for the appointment of a successor fiduciary". (Emphasis supplied.) 12 In Kangas v. Lefko, 369 Mich. 341, 119 N.W.2d 645 (1963), the facts paralleled this case except the estate there had not been "closed". 13 Plaintiff was injured in an automobile accident and the driver of the other automobile was killed. The estate of the driver was fully administered, the final account was approved, the administrator was discharged, but words to the effect that "the estate is closed" were not included in the order. Over four months later, 14 the plaintiff sought to have the estate reopened. The motion was granted and a negligence action was commenced. Also, a claim was filed in the estate.
In affirming the denial of a motion to dismiss the action, two justices relied on alternative grounds: (i) a claim was filed with the probate court within 18 months of the time originally fixed for the presentation of claims and before the estate was closed, 15 and (ii) the action had been commenced in the circuit court while the estate was still open. Three justices, stating their agreement in the result, said that a negligence action "depends on no claim filed in probate", id. p. 344, 119 N.W.2d p. 646, and that the only question was whether there was a legally suable defendant and held that there was one because the estate was still open: "the estate has not as yet been closed for want of a probate order of closing." Id. p. 345, 16 119 N.W.2d p. 647.
In In re Curzenski Estate, supra, the estate had been closed. While that case might be distinguished on its facts, 17 this Court declared that ordinarily 18 no action may be commenced in the circuit court against a decedent after the estate is closed. 19 The Court said that liability insurance is not an "after discovered asset" and therefore a closed estate may not be reopened on that basis. 20
We are persuaded that probate and closing of an estate should not bar an action that may yet, within the applicable statute of limitation, be commenced directly against the personal representative of the decedent. Just as the failure of heirs to probate a decedent's estate does not preclude the commencement of an action, neither should the closing of an estate preclude the commencement of an action which otherwise is authorized.
The result reached in Curzenski is not consistent with the provision of the Probate Code authorizing the commencement of actions directly against the decedent's personal representative. The question before us does not concern the time or procedure for filing claims against the probate estate but, rather, the means of providing a suable defendant for an action which the statute authorizes to be commenced directly against the decedent's personal representative.
The section of the statute authorizing the reopening of a closed estate provides that the failure of a "claimant" to file a "claim" against the estate during the original administration thereof "shall not be a cause" for reopening it. Williams is not, however, a "claimant" seeking to reopen the estate for the purpose of filing a claim payable out of probate assets, but, rather, seeks its reopening so that she can file an action against the decedent's personal representative in an attempt to vindicate her right to proceed against him directly with a view to reaching assets other than those of the probate estate.
The statute (see fn. 9 for text) provides that an action of ejectment or to recover the possession of real estate and actions of replevin and trespass on the case (negligence) and any other action in which the decedent might have been properly joined with others...
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