23 Mich. 7 | Mich. | 1871
This was an- appeal by the plaintiff in error, as one of the next of kin and heirs at law of decedent, from an order of the judge of probate of the 9th of June, I860, allowing the final account of Hall as administrator, and discharging
On the trial in the circuit court, evidence was given that the widow and administrator were brother and sister; that after her husband’s death the widow delivered to her brother, the administrator, some fourteen hundred dollars, of which one thousand dollars was taken from the private trunk of decedent, and two hundred dollars received from his debtors, and the residue was derived from a sale of bank stock standing in the name of the intestate. Evidence was also given for plaintiff in error tending to show that the administrator knew the sources from whence these funds came, and that he afterwards used them in his private business, giving to the widow on their reception securities running to her individually, and which are still standing unpaid.
To rebut this the plaintiff in error offered to prove that he had not collected anything on said securities since coming of age, and that the claims allowed against the estate were purchased with the proceeds of the estate by the administrator, and assigned to the widow without his knowledge or participation. This evidence was excluded on objection by defendant in error,'that the award of the judge of probate could not be impeached.
The rejection of the offer requires us to assume that the proof proposed was practicable, and to consider what its tendency would have been if it had been made. In connection with the other facts, such proof must have conduced to show that the administrator acted fraudulently and collusively in permitting the allowance of the claims in favor of the widow. When the claims were before the judge for adjudication, the administrator represented the estate, and it was his duty to resist and not forward or connive at any demand against the estate which was fictitious, illusory or otherwise unjust or dishonest. He was the only party entitled to be heard in defense of the estate and the only one who could' appeal from an unfavorable decision. And if he knowingly .suffered himself to be instrumental in aiding or permitting the allowance of a
If he had possession of.the funds and was aware of facts which either led him, or were sufficient to lead him to know that they belonged to the estate, his omission to place them on the inventory would not excuse him from accounting for them when duly required to do so by the .next of kin. And if such funds were owned by the estate, he could not, in such a case, excuse or defend himself on the ground that he had squandered or given them away or .treated them as lent or loaned to himself by the widow, upon securities running to herself.
When this ruling was made, the case .was on trial before a jury, who, after the evidence was all put in, were sent out to deliberate on their verdict. While they were absent, defendant in error moved the court to decide the cause without a jury, on the ground that the issues were by law properly triable by the court alone. The jury soon coming in and declaring their inability to agree, the court discharged them, and then decided, against the objection of plaintiff in error, to try the case as requested by defendant in error, without a jury. . And afterwards, and upon the evidence taken before the jury, the court affirmed the order of the judge of probate. The parties consented that the evidence need not be retaken.
The question is upon the refusal by the court to allow the case to be tried a second time by jury. The issues to be tried were not mere issues of law. The law of the case could not be declared without ascertaining
The order of the circuit court, affirming that of the probate court, must be reversed, with costs, and a new trial awarded.