85 Mich. 227 | Mich. | 1891
Joseph L. Bitely, the claimant’s father, died intestate, July 23, 1858, in Van Burén county, this State. He left surviving him his widow, Lorilla Bitely, and five children, his only heirs at law, to wit: Nathan H. Bitely, Eugene Bitely, Martha Bitely, now by marriage Martha Morris, Mary E. Bitely, and Josephine Bitely.
Letters of administration were duly issued November 4, 1858, to Lorilla Bitely, the widow, and the son Nathan H. Bitely. The son Nathan II. Bitely alone qualified as such administrator. In January, 1859, Nathan H. Bitely prepared an inventory of the estate, and presented it to the probate court. It shows that the estate consisted principally of real estate and notes and mortgages. The real estate consisted of a homestead in Paw Paw, .the
October 1, 1859, Martha Morris, Eugene Bitely, Mary E. Bitely, and, the widow, Lorilla Bitely, executed and delivered to Nathan H. Bitely a warranty deed of all the lands described in the inventory as tax lands, for the consideration, named in the deed, of one dollar. Josephine was then under age, and did not sign this deed. In 1860, Nathan li. Bitely, as guardian of Josephine, presented a petition to the probate court for license to sell the interest of Josephine in all these lands. A license to sell was granted, but no further proceedings were taken thereunder. Eugene Bitely died intestate in 1873, leaving a widow and three children. Lorilla Bitely died in 1882. Nathan H. Bitely, at his death, left a widow, a son, Frederick H. Bitely, and three daughters. Fred is the administrator of the estate of his father, and defendant in this proceeding.
After the death Oj. Nathan H. Bitely, one John W. Free was appointed administrator da bonis non of the estate of Joseph L. Bitely, deceased, and presented a claim as such administrator in the probate court against the estate of Nathan II. Bitely, deceased. This claim was allowed, but subsequently set aside on appieal to the circuit court, on the ground that each heir must present separate claims, and that such claims could not be prosecuted in the name of the administrator da bonis non of the estate of Joseph L. Bitely for the heirs. Nothing further was done by the administrator.
In' September, 1888, Mary E. Bitely and Josephine
The theory of the claimant on the trial was that Nathan H. Bitely took the deed of October 1, 1859, from the parties as trustee for the grantors, and was to sell and dispose of the lands for their benefit, and to account for such proceeds as administrator of the estate of his father,. Joseph L. Bitely; that large sums of money came into his hands as such administrator from this and other sources, for which he has never accounted, and the share belonging to claimant amounted to several hundred dollars. A large amount of testimony was taken on the trial, and a great amount of documentary evidence offered and received, showing or tending to show the situation of the estate of Joseph L. Bitely, and the amount and, value thereof, and the sums of money coming into the-hands of Nathan H. Bitely as such administrator, and his dealings with the property of the estate. The evidence tends strongly to show that Nathan H. Bitely took the deed of October 1, 1859, for the purpose of selling and disposing of the lands for the benefit of the estate, and to account to the heirs for the proceeds. Mrs. Morris testified that Nathan stated that it would be the better-way to place it in his hands in trust; that he would hold the mortgages, money, and notes of his father’s estate in his hands to pay the taxes on these lands; and, as Josie
The court charged the jury upon this branch of the case as follows:
“If you find that he did not sell any of these lands as administrator, then, of course, as I have already indicated to you, there can be no claim of the estate for them. If you find that what he pretended to sell was only his own interest in the lands as one of the heirs, then this claimant could have no claim for them. * * * If, however, he assumed to sell any other title to these lands, ^,nd conveyed the estate's interest in them, and took the money for them, then he would be chargeable with it."
There was no error in admitting the testimony showing the execution and delivery of the deed, the purposes for which it was executed and delivered, and, the sales made by the administrator. The court was correct in its charge, holding that under the circumstances stated the administrator took the deed as trustee for the heirs of the estate, and that his estate must account for the proceeds of the sales of these lands. Parol evidence was properly admitted showing what sales had been made, and the sums realized from such sales.
The errors relied upon are stated in the brief of counsel for appellant as follows:
“1. The circuit judge erred in turning over to the-jury, as he did, the entire accounting.
“2. Neither the verdict nor the judgment shows what items were allowed, nor what items were disallowed; nor what balance, if any, existed in any accounting between Nathan II. Bitely and .his father's estate, or between him and Mary E. Bitely.
“3. The verdict, according to its terms, is based on pure fiction, and evidently represents no true balance on any accounting, but is an arbitrary assessment in favor of the claimant.
*232 “4. There is no balance in -favor of Mary B. Bitely under any written statement of claim filed on her behalf and appearing in the record.
“5. The circuit judge erred in admitting parol evidence, as he did, notwithstanding objections, and in instructing the jury that all such evidence was legal.
££ 6. The circuit judge erred in instructing the jury that they might hold Nathan H. Bitely accountable for the proceeds of sales of separate parcels of land described in the so-called £ trust-deed/ although Nathan H. Bitely never charged himself with such proceeds, nor after such sales agreed to hold the same for any other person or persons.
“7. The circuit judge erred in instructing the jury, as he did, that they might lawfully find Nathan H. Bitely accountable for selling Mary E. Bitely’s land when no conveyance of his affected her title, and it did not appear that she had sustained any loss or damage by any conveyance he made.
“8. The circuit judge erred in instructing the jury, as he did, that they might lawfully hold Nathan H. Bitely accountable for sale of northern land, as administrator, when there was no legal evidence in the case tending to show that he ever made any such sale as administrator.
“9. The circuit judge erred in deciding, as he did, and in instructing the jury, that the claim of Mary E. Bitely was unaffected by the statute of frauds.
££10. The circuit judge erred in deciding, as he did, and in instructing the jury, that the claim of Mary E. Bitely was unaffected by any statute of limitations.”
The record shows that the court submitted to the jury the questions of fact involved in the case. The inquiiy upon the trial was limited to the question:
First. What amount came into the hands of the administrator as such from his father’s estate?
To show this, a debit and credit account, kept by Nathan H. Bitely with the estate, was put in evidence, and submitted to the inspection of the jury. Evidence was also given showing sales of lands and moneys arising therefrom. The next inquiry was, how much has the administrator paid out of the estate? These were ques
“Their findings of fact are not conclusive, but advisory, and bear a close analogy, in this respect, to juries called in chancery cases.”
These lands, as well as the entire estate, came into the hands of Nathan H. Bitely as administrator, to be held .and accounted for by him as such. He has, as it clearly appears, never made any report to the probate court of his doings in the estate, and has never accounted with Mary E. Bitely, as one -of the heirs, for her share of the estate. The statute of limitations would not bar her claim under such circumstances. It was a trust fund, and came into his hands as such.
The second assignment of error, however, we think well taken. The verdict rendered and entered in the case is in the ordinary form of a verdict in an action of assumpsit, and the judgment follows in the same form. The verdict does not, therefore, show what items of the claimant’s account were allowed or disallowed. It does not show what amount came into the hands of the administrator from his father’s estate, or what amount he properly paid out. There was nothing in the verdict to show -to the court how the jury arrived at the conclusion that Mary E. Bitely’s share of such' balance amounted to just $300. In this class of cases the verdict should show the facts found by the jury, that the court may know upon what they base their conclusions as to the amount found
The verdict and judgment, for this reason, must be reversed, and the cause remanded to the court below, where it may be again heard.
