37 Mich. 452 | Mich. | 1877
Biddle was administrator of the estate of Edward Lyne, deceased, and Lasley and O’Malley were sureties on his administration bond. The bond was given May 13th, 1861.
At a hearing in the probate court on the 15th, 18th and 17th days of May, 1876, it was decreed that Biddle, as administrator, held in his hands a balance belonging to the estate of $907, and that the estate was entitled to interest thereon from May 17, 1867, being nine years, at seven per cent., and amounting to $571.41; that Mary E. Richards, Louisa Rick, Edward Lyne and William Lyne were the children of the deceased and the only heirs of the estate and entitled to receive from the administrator such principal and interest, amounting to $1,478.41. And it was further decreed that Biddle as administrator pay to said heirs and distributees said amount within thirty days from said 17th of May, 1876.
Payment not being made, this action was brought .upon the bond February 23, 1877. The cause was tried without the intervention of a jury and the court gave judgment against the administrator and his sureties. There was evidence tending to show that Biddle was never cited to account until 1876, or more than fifteen years after his appointment. Several points are suggested, but one only will be noticed. It was claimed by plaintiffs in error that action on the bond for failure to pass assets to distributees was barred by the statute. Under the system of regulations which provides for this bond the probate court is required to prescribe a time for disposing of the estate and paying debts and legacies, and the time which may thus be prescribed is in terms limited to four years and six months from the time of granting letters. Comp. L., §§ 4450, 4451, 4452, 4453. This provision must undoubtedly be construed in connection with others, and it cannot be regarded as an imperative regulation for the settlement of estates within the time mentioned. Still it may be properly considered as contemplating a stage in the proceedings having influence upon other proceedings, and also as marking a point from whence to calculate the time or times allowable for other acts. Bearing this in
It is next noticeable that personal liability by the administrator to creditors and liability upon the bond is declared to arise on the makiüg of the before mentioned decree. § 4461.
These different provisions, in the absence of an exceptional state of things, would seem to determine that on the arrival of four years and a half after the grant of letters the right to insist on distribution would commence, and that a right to proceed in the probate court to compel it, or in other words, a right of “action in the premises, would be in force. As intimated before, nothing is disclosed which in any way indicates that there was any thing to postpone the right.'
The bond can have no separate and indépendent force. It belongs to the administration proceedings. Apart from them it cannot supply a cause of action, and if the liability which is made the ground of action upon it was itself barred then the bar must apply to this action on the bond to enforce that liability, and upon the facts as they appear we
Judgment reversed, with costs, and new trial ordered.