129 Mich. 271 | Mich. | 1902
Cornelius Freeman died intestate in 1897, leaving no parents and no issue. The persons-entitled to share his estate were: His widow, Henrietta Freeman; two sisters, Jane Bundy and Harriet Ernst;, two children of his deceased sister Hannah; two children of his sister Nancy; two children of his brother John; three children of his sister Sally; three children of his sister Betsy; two grandchildren of his sister Hannah; two-grandchildren of his brother John. The intestate died seised of both real and personal property, the former having been divided satisfactorily to the parties. The estate was administered, and on May 21, 1898, after due notice, an order of distribution was made. No complaint is made regarding the- share awarded to the widow. The remainder was directed to be distributed per capita among the sisters and the children and grandchildren of other brothers and sisters. Immediately after the order was made, and on the same day, the administrator, in good faith, proceeded to pay the distributees the seyeral amounts due them according to the terms of the order. On the day of the hearing, $85 was paid on the share of the plaintiff, Harriet Ernst, -intestate’s sister, upon her written order. Some of the distributees were nonresidents, and the shares of such were deposited in bank, and receipts-forwarded, with notice that, upon return of the receipts properly signed, the respective amounts would be forwarded.
On or before July 16, 1898, the administrator paid all of the distributees except Harriet Ernst, who did not send her receipt. On that day he filed the receipts. Up to-that time he had no notice that any person intended to appeal. On July 18, 1898, Harriet Ernst appealed to the circuit court, claiming that the order should have provided for a distribution per stirpes, and not per capita, which would give her a much larger share of the estate than she was given by the order. There was in the hands of the administrator on April 26, 1900, only $251.91, which was made up of a balance due Harriet Ernst under
There are two clearly cut questions before us:
1. Was the order of the probate judge correct ? If so, there is no occasion to consider the other.
2. If wrong, was the administrator legally bound to anticipate an appeal, and withhold distribution during the statutory period within which the parties might appeal ?
The first question is decided in the case of Hascall v. Cox, 49 Mich. 439 (13 N. W. 807). 3 Comp. Laws, § 9322, provides that, in the absence of parents and issue, the personal property shall be distributed as follows:
“One-half to the widow, and the other half to the * * * brothers and sisters, and the issue of any deceased brother or sister, in equal proportions, share and share alike.”
The issue of a deceased brother, whether one or many, would take by representation an equal share with a living brother or sister. It follows that the order of the probate court was erroneous.
The proceeding was in rem, and there is much reason for requiring an administrator to defer payment under an order of distribution until aggrieved parties have an opportunity to appeal, especially where, as is claimed in this case, the distributee is impecunious, and cannot be compelled to return the excess that has been received. But we are aware of no rule which precludes the administrator from complying with the valid order of the probate court, where it is done in good faith. All appeals are statutory, and, until appealed from, judgments may be enforced. Even an appeal does not always operate as a supersedeas, though it does, in cases like this, by statute.
