91 Mich. 450 | Mich. | 1892
Michael McDonough died at the city of Detroit, on the 23d day of February, 1889. Before-hie death he had sued out a writ of capias ad respondendum in the Wayne circuit court against the defendant, August Helm, and John Coll and John Frohm, claiming damages for an alleged assault upon him by them. On the 27th day of February, 1889, McDonough’s widow, Elizabeth McDonough, petitioned the probate court of Wayne county that administration be granted to Edward S. Grece upon her husband’s estate, stating that deceased was possessed of no real or personal property except the right of action against Helm, Coll, and Frohm, which was estimated at $1,000 or above. Nothing seems to' have been done under this petition. March 8, 1889, the widow filed another petition, setting forth that since the date of the filing of the last petition the defendant, August Helm, had made a proposition to pay her and the other heirs of McDonough, consisting of three children, aged, respectively, 9, 7, and 6 years, the sum
May 28, 1889, Edward S. Grece petitioned to be appointed general administrator, and on the 27th of June, 1889, was duly appointed such administrator. Said Grece then filed a declaration in the case of McDonough against Helm, Coll, and Frohm, setting out the commencement of the action by capias before the death of McDonough, his decease, and the appointment as administrator, the suggestion of McDonough’s death upon the record, and the revival of the suit, and then declaring for damages for the injury to McDonough in the sum of $5,000. To this declaration Helm pleaded the settlement and satisfaction of said claim by the payment of the said $800.
Upon the facts appearing as above stated, the circuit judge directed a verdict for the defendant.
The judgment below must be affirmed. No brief has been filed on the part of the appellee, but the record furnishes us the reasons given by the circuit judge, Hon. George Gartner, in his direction to the jury. The court below held that, the special administrator having submitted the matter to the probate court, and receiving authority from such court to settle the claim against Helm, and having done so, and submitted his accounts to the said probate court, which were allowed, and order of distribution made, such action must be considered a final settlement of the case. The circuit judge also-thought that before this suit could proceed the money
The counsel for the plaintiff (Grece) contend that the special administrator was not properly appointed, and had no jurisdiction to settle the case. It is claimed, first, that the petition for the appointment did not confer any jurisdiction upon the court to appoint a special administrator.
The statute authorizing the appointment of a special administrator at the time the petition was filed, and when Eggerman was appointed such administrator, was as follows:
“ When there shall be a delay in granting letters testamentary or of administration, occasioned by an appeal from the allowance or disallowance of a will or from any other cause, the judge of probate may appoint an administrator to act in collecting and taking charge of the estate of the deceased until the question on the allowance of the will, or such other question as shall occasion the delay, shall be terminated, and an executor or administrator be thereupon appointed; and no appeal shall be allowed from the appointment of such special administrator.” How. Stat. § 5851.
Before Eggerman had been discharged, the statute was amended so as to read as follows:
“ When by reason of delay in granting -letters testamentary or of administration, or when from any other cause the judge of probate deems it expedient so to do, he may, after such notice as he may direct, appoint an administrator to act in collecting and taking charge of the estate of the deceased until'an executor or administrator shall be appointed, and no appeal shall be allowed from the appointment of such special administrator.”
This amendment was passed and approved by the Governor June 25, 1889, and took immediate effect. See Act No. 18o, Laws of 1889; 3 How. Stat. § 5851. This statute, as amended, indicates the intention -of the Legislature to
The widow’s petition for the appointment of Eggerman was embraced in a petition asking that her former petition to have Edward S. G-rece appointed general administrator be dismissed, and herself appointed such administrator under this new petition. This she had a perfect right to do, as she was the person making the first petition, and entitled, presumptively, to her choice as to who should administer her husband’s estate. She showed that an immediate settlement could be made with Helm, if a special administrator was appointed; and authorized to receive the money. There had been a delay in appointing a general administrator, and under her petition, if granted, there must be further delay before she could be appointed under the new petition. We are not inclined to hold that the probate judge did not have jurisdiction' to appoint a special administrator under these circumstances.
It is further contended that the special administrator had no power to compromise the suit pending against Helm, and that the probate court could confer no authority upon him to do so, and that the settlement was a fraud upon the infant heirs and the creditors of the estate.
It is the duty of the special administrator, under the statute, to collect the goods, chattels, and debts of the deceased, and to preserve the same for the executor or administrator who may afterwards be appointed. How. Stat. § 5852. In this case there were no goods or chattels to be collected, and no property of the estate, except • a claim for damages in litigation at the time of McDonough’s death. This claim was an uncertain one, and there was no money or other property of the estate to
The only question open on this settlement is whether it was a fair and just one, and without fraud; but this ■question cannot be litigated in the manner attempted
It is a significant fact bearing upon the question as to whether this Avas a fair settlement that Grece in his petition alleges the value of 'the claim against all of the defendants to be $300 less than the special administrator received from one of them without suit.
The judgment must be affirmed, with costs.