Cole v. McFall

48 Mich. 227 | Mich. | 1882

Graves, C. J.

This case comes up by appeal against a decree dismissing the bill. The hearing was on pleadings .and proofs. The substance of the bill is as follows: Chapin ,S. Gibbs died without a will, in the county of St. Joseph, in 1869, leaving a widow, the defendant Ann J., and two daughters, the' defendant Nettie McFall and Emma Cole, wife of complainant, and who were entitled to decedent’s ¡estate subject to the claims of creditors. That his personal property turned out to be worth some $5000 over all liab'ilities, and that he left besides two village lots in Mendon, in said county. That the widow and daughters mutually agreed to waive taking out letters of administration and the widow was permitted to go on and settle the affairs and receive the assets. That in January, 18J2, the daughter Emma Cole died in said county intestate, leaving an only child, the complainant Grade. That the widow and Mrs. McFall were anxious to sell their interest in said village1 Tots, and said Cole, having become guardian for the daughter Grade, obtained a license to sell her share, and thereupon1 with the concurrence of all concerned a sale was effected of the entire interest for $1300, which said Cole received and holds as assets of said Gibbs estate. That an administrator was once appointed on said estate, who resigned, however, without closing up anything, and that the appointment of another is still pending on appeal in the circuit court. That the heirs have never settled and have never known the-extent of their respective interests. That the amount received from the sale of the real estate is not sufficient for the shares of said Cole and his daughter. But that said Nettie has nevertheless sued him at law therefor. An accounting is prayed for between these parties and the court is asked to determine the sum to which each is entitled, and to appoint a receiver and enjoin the action at law.

The answer and evidence would deserve very serious consideration if the c^se made by the bill was founded in equity but it is not

As the facts set out appear, the proceeds of the personal estate went into the widow’s hands with the assent of both her daughters, and if any part belongs to complainant or his-daughter it may be sued for at law. The land fell to the daughters under the law of inheritance, subject to the widow’s dower, and the sale made afterwards had no effect to blend it with the estate which was left in the form of personalty. It was already the real estate of the persons-entitled, and the sale was a sale of their lands, and as between them the proceeds were their moneys in the proportion of their respective ownerships, and not moneys belonging to-the mass left in the form of personal property and disposable under the Statute of Distributions. The circumstance that a proceeding is now pending to call into activity the powers ■of the probate court for the closing up of the estate may be passed without comment. There appears to be no basis for ,an account in equity or any kind of chancery interference.

The decree is affirmed with costs.

The other Justices concurred.