165 Mich. 287 | Mich. | 1911
The bill of complaint in this cause, filed in August, 1910, alleges the death intestate of Malvina R. McCamman of the city of Charlotte, February 7, 1901, seised and possessed of a large amount of real and personal property, and leaving as her heirs at law one son, James R. McCamman, and two daughters, Amanda M. Martin and Mary A. Lindsay Smith; that on April 8, 1901, letters of administration were duly issued to said James R. McCamman as administrator of said estate; that the appraisers appraised property outside of Eaton county without any warrant therefor; that the inventory of the estate “is grossly false and fraudulent; that large and valuable tracts of real estate of which the said Malvina R. McCamman died seised are omitted from said inventory;” that her homestead is omitted, and “that the said James R. McCamman falsely and fraudulently withheld same from the effects and'inventory of said estate, and that the said James R. McCamman has falsely and fraudulently appropriated the said property to his own use and benefit;” that a valuable piece of property in
“Your orator and oratrix believe and charge the fact to be that large sums of money are due the estate from said parties, and that such sums have been ialsely and fraudulently withheld from said estate.
“Your orator and your oratrix further show that said James R. McCamman, as administrator, has falsely and fraudulently credited himself with various items of disbursements, much to the damage of the estate, and that he has appropriated such sums to his own personal use and benefit; that in his report to the said probate court filed oh, to wit, the 4th day of October, A. D. 1906, on page 26, a certified copy of which is hereto annexed marked Exhibit H, and made a part of this bill, he credits himself with disbursements of the following items, to wit: Cash $758.16; expended house, $179.14; that said items are in excess of his total disbursements as itemized in’ said annual report, in which the aggregate total disbursements, as itemized, are $17,876.”
“That on, to wit, the 25th day of April, A. D. 1907, the said James R. McCamman, as administrator, exhibited and filed a final report of his doings in said estate and petitioned that the same be allowed, a certified copy of which is hereto annexed and marked Exhibit A, and made a part of this bill; that on, to wit, the 9th day of May, A. D. 1907, upon due hearing said probate court made an order allowing said final account; that said order is recorded in Liber 37 of Probate Records, on page 123, a certified copy of which is hereto annexed, marked Exhibit B, and made a part of this bill; that on, to wit, the
The second, third, and fourth paragraphs of the prayer for relief are as follows:
“ That the court set aside the orders of the said probate court of May 9, A. D. 1907, and of March 26, 1909. That the court set aside the annual reports of said administrator, of his doings in said estate, and direct him to fully and truly account of his doings in connection with said estate. That said James R. McCamman be discharged as administrator, and that the said probate court be directed to appoint some other person who is suitable and well qualified to act as administrator.”
The defendants demurred to the bill, with a plea joined. The demurrer was ignored by the court. The plea, broadly, was that the matters alleged in the bill related to the settlement of an estate of which the probate court had exclusive jurisdiction, and that the bill showed no grounds authorizing an equity court to usurp the jurisdiction of the probate court and take "the estate and settle it to the exclusion of the probate court. The opinion of the court held the plea well taken, and a decree was entered in accordance with the opinion. Complainants appeal from the decree allowing the pleal The plea sets up in detail the proceedings in the probate court.
The probate court has exclusive jurisdiction over the settlement of the estates of deceased persons, except
Conceding that, where fraud has been discovered too late to apply to the probate court for relief, the court of chancery has jurisdiction, in aid of the probate proceedings, to set aside orders fraudulently procured :
“He who invokes the aid of a court of equity to set aside a judgment rendered against him in a court of law must show by his bill that he has been diligent in prosecuting his remedy at law. If he had the opportunity to interpose his defense at law and failed to avail himself of it, a court of equity will close its door to him.” Weisman v. Beef Co., 154 Mich. 511 (118 N. W. 2).
And:
“The allegations of the bill of complaint inequity to obtain an injunction against a judgment at law must be positive, explicit, and certain, and, if fraud is the ground upon which the aid of equity is asked in relieving against a judgment, it is not sufficient to incorporate in the bill general allegations of fraud, deceit, or misconduct, but the specific facts constituting the alleged fraud must be set forth.” Andrews v. Osborn, 159 Mich. 77 (123 N. W. 599).
There is no allegation in the present bill of complaint of any diligence whatever on the part of complainant Smith in protecting her rights; nor that she discovered the frauds complained of too late to bring them to the attention of the probate court and procure the correction of the accounts; nor that she was ignorant of their existence; nor that they were not passed upon by the probate court. There is no allegation that she did not have due notice and opportunity to be heard with full knowledge of the facts. There is no explanation offered in the bill as to why she
The decree is affirmed.