166 Mich. 504 | Mich. | 1911
This action is founded upon seven promissory notes, all executed by defendant at Battle Creek, Mich.; one payable direct to plaintiff; three payable to Mrs. A. D. Hutchins, and assigned to the plaintiff by T. H. Purdon, as the administrator of the estate of Mrs. A. D. Hutchins, deceased, purporting to have been appointed and qualified as such administrator by the probate court of Orleans district, State of Vermont, the residence of Mrs. Hutchins at the time of her death; and three others payable to Philip E. Buffer and assigned to plaintiff by Lucy M. Buffer, as administratrix with the will annexed of the estate of Philip E. Buffer, deceased, purporting to have been appointed and qualified as such administratrix
No question is made to plaintiff’s right to recover on the first of above-mentioned notes. In the case of the other six notes, three questions are presented for the consideration of the court:
First. As to the admissibility and sufficiency of the proof to establish the appointment and qualification of T. H. Purdon as administrator of the estate of Mrs. A. D. Hutchins, deceased, and the admissibility and sufficiency of the proof to establish the probate of the will of Philip E. Ruiter, deceased, and the appointment and qualification of Lucy M. Ruiter as administratrix with the will annexed of his estate thereunder.
Second. As to the right of plaintiff to maintain an action on said notes in this State under the said assignments from said T. H. Purdon and said Lucy M. Ruiter as said foreign administrator and said foreign administratrix, respectively.
Third. As to payments made by defendant of interest on both the Hutchins and Ruiter notes operating in the nature of an estoppel to prevent defendant questioning plaintiff’s title to said notes.
In our opinion, the better rule, and the one supported by the preponderance of authority, sustains the right of plaintiff to maintain this suit, if the assignments were properly proved. Knapp v. Lee, 42 Mich. 41 (3 N. W. 244); Schluter v. Savings Bank, 117 N. Y. 125 (22 N. E. 572, 5 L. R. A. 541, 15 Am. St. Rep. 494); McCully v. Cooper, 114 Cal. 258 (46 Pac. 82, 35 L. R. A. 492, 55 Am. St. Rep. 66); Wilkins v. Ellett, 108 U. S. 256 (2 Sup. Ct. 641); Owen v. Moody, 29 Miss. 79; Campbell v. Brown, 64 Iowa, 425 (20 N. W. 745, 52 Am. Rep. 446); 7 Cyc. p. 786. This point was not determined in Reynolds v. McMullen, 55 Mich. 568 (22 N. W. 41, 54 Am. Rep. 386), upon which defendant relies to some extent. So far as the question is discussed in the majority opinion,
Were the assignments properly proved ?
The plaintiff offered in evidence a certified statement of the appointment of Thomas H. Purdon as administrator of the estate of Abbie D. Hutchins, which appointment was made by the probate judge of Orleans district, in the State of Vermont. The plaintiff also offered in evidence the deposition of Thomas H. Purdon, taken in the State of Vermont, in which he testified that he was a resident of Rutland, State of Vermont, and that he knew Mrs. A. D. Hutchins in her lifetime and her full name was Abbie D. Hutchins; that she died at Irasburg, Orleans county, Vt., April 26, 1902; and that he was appointed administrator of her estate by the probate court for the district of Orleans county, at Newport, in May, 1902; that the indorsement : “Pay to the order of the General Conference Association of the S. D. Adventists. T. H. Purdon, administrator of the estate of Mrs. A. D. Hutchins ” — which appears upon each of the notes Nos. 260, 116, and 113 was in his handwriting, was made upon said notes, and they were delivered to the plaintiff by him the last of September, 1902, for the purpose of transferring the ownership of the notes to the plaintiff.
He further testified that he was the administrator of the estate of Mrs. A. D. Hutchins when said indorsements, transfer, and delivery of the notes were made; that the estate of Mrs. A. D. Hutchins had no ownership in these notes, and they belonged to the plaintiff.
The plaintiff read in evidence the deposition of Lucy M. Ruiter, in which she testified that she was the widow of P. E. Ruiter, whose full name was Philip E. Ruiter, and that she resided in the district of Bedford, Province of Quebec, and that her husband before his death made the following will:
“ Sweetsburg, P. Q., Feb. 9, 1899.
“ I give the farm and stock to Vina and Delmer. All the remainder, real and personal, mortgages, notes, etc.,*508 to my wife Lucy to do with as she thinks proper and right.
[Signed] “ Philip E. Ruiter. “Witnessed: John Hammond.
Loring Marsh.”
That she was the person mentioned in said will as “my wife Lucy,” and by said will she was created the universal legatee of Philip E. Ruiter, and thereby became vested with the administration of his estate, and that she acted as such administratrix in the settlement of her husband’s estate.
She further testified that she indorsed notes Nos. 168, 140, and 157 on the 31st day of January, 1900, and on that date delivered them to the plaintiff. That the indorsements on each of the notes: “ Pay the within note to the General Conference Association of the Seventh Day Adventists. Dated January 31st, 1900. Lucy M. Ruiter, administratrix with the will annexed of Philip E. Ruiter, deceased ” — were all in her handwriting, made by her as heir at law and universal legatee of her deceased husband. That the estate had been fully settled and closed, and there were no unpaid debts against said estate at the time these notes were indorsed, transferred, and delivered by her to the plaintiff. That said notes were indorsed and delivered to the plaintiff by her for the purpose of transferring the title to each of said notes to the plaintiff, and that neither she, as universal legatee, nor the estate of her deceased husband, had any interest or ownership in said notes.
The plaintiff also offered in evidence a certified copy of the probate or proving of said will of Philip E. Ruiter in the superior court, district of Bedford, and Province of Quebec; and that said will was duly proved and established in said court on the 16th day of March, 1899.
The plaintiff further offered in evidence the deposition of W. H. Lynch, who testified that he was an advocate and resided in the village of Sweetsburg, district of Bed-ford, and Province of Quebec, and that he had practiced
The plaintiff further offered in evidence the Civil Code of Lower Canada, printed by authority, containing Article 905, found on page 140, and Article 924, found on pages 144 and 145, of said Civil Code.
All of this testimony was admitted against the objection of defendant’s counsel and exceptions taken thereto, upon the grounds that it was incompetent to prove the appointment or qualifications of an administrator or executor by parol (citing Albright v. Cobb, 30 Mich. 355), and that the certified copies of the probate records, etc., are inadmissible because not in conformity with sections 10144-10147, 3 Comp. Laws.
The proofs of the probate of the will of Philip E. Ruiter were sufficient to authorize its reception in evidence under
The testimony of the Canadian advocate and the articles of the Code were sufficient proof of the authority of Mrs. Ruiter to act as executrix of her husband’s will and of the fact that she became the absolute owner of the notes under the will, and could dispose of them as she saw fit.
The official proofs of the appointment of Thomas H. Purdon as administrator of the estate of Abbie D. Hutch-ins, deceased, do not comply with the statute. The probate register does not set forth a copy of the order of the court certified by him, but certifies to what the.court did, “as appears by the records and files of said probate court.”
Parol testimony is not admissible to prove the granting of letters of administration by a court, but the fact must be proved by the record. Albright v. Cobb, supra.
The Hutchins notes were indorsed to the plaintiff in 1902, and from that time defendant made payments of interest and principal direct to plaintiff, down to November 16, 1906.
If the testimony objected to by defendant had been stricken out, there would have been no evidence to impeach the plaintiff’s right of action, and the indorsement on the notes to plaintiff and of the payments by defendant, with the testimony of one of defendant’s officers that they had been made as indorsed, would have made a prima facie case for plaintiff, entitling him to recover. Act No. 265, Pub. Acts 1905, §§ 18, 53, 61.
We are, therefore, of the opinion that the receiving of the testimony did not prejudice defendant’s rights, and the judgment is affirmed.
