272 N.W. 732 | Mich. | 1937
Appellants are the heirs at law of James E. Lacroix, deceased. They seek our writ of mandamus to set aside an order granting the administrator de bonis non license to sell at private sale all the real estate which order was affirmed on appeal to the circuit court.
James E. Lacroix died testate October 27, 1931. The validity of his will was upheld in Re Lacroix's Estate,
Following the filing of this petition, Wrin L. Lund and E.R. Wentworth were commissioned by the probate court to make an appraisal of the real estate. Parcel No. 14 represents about 44 per cent. of the real estate of said estate and on the same day that the license to sell the real estate of said estate was granted by the probate court parcel No. 14 was sold for the sum of $3,118.82 net to the estate, the purchaser assuming to pay the obligations against said parcel in the amount of $11,056.01.
The files of the probate court show that said parcel contains about 45 acres; is located between the Seven and Eight Mile Roads, a part of which is in Lochmoor village and part in Gratiot township and has an inventory value of $22,500.
On September 14, 1936, the honorable Mark D. Taylor, sitting as one of the circuit judges for the county of Wayne, on an appeal from the probate court affirmed the order of the probate court granting Edmund J. Stafford and Edward C. Moran, administrators de bonis non with will annexed, a license to sell all the real estate of said estate.
Appellants appeal and contend that the license to sell real estate at private sale was not based upon the testimony of two disinterested freeholders; that the condition of the real estate market did not warrant the granting of the right to sell all of the real estate at private sale; and that the probate court was without jurisdiction to grant such license until the administrators had collected all personal property and exhausted the personal assets of the estate in order to pay the debts, legacies and expenses of administration. *432
The record shows that W.L. Lund acted as a freeholder under the order of the probate court; that when he officiated as a freeholder, he was associated with the Houseman-Spitzley corporation which negotiated the sale and received a commission for making said sale; and that he later became associated with Robert J. Hesse Company which became purchaser of part of the property sold.
The authority for the sale of real estate by an administrator is found in 3 Comp. Laws 1929, § 15800. Section 15841, 3 Comp. Laws 1929, provides the procedure for sale of real estate at a private sale and requires that the probate judge take "the testimony as to the value of such real estate of two or more credible and disinterested freeholders."
We think Mr. Lund was disqualified to act as an appraiser. InRe Estate of Meredith,
"The probate court derives none of its jurisdiction or power from the common law, Grady v. Hughes,
The statute requiring a license to sell real estate, being a part of the probate law, is, in its terms, mandatory and its provisions must be followed. At the time the sale was made, Mr. Lund was in the employ of the Houseman-Spitzley Corporation, and, as such, was employed to secure land for his company to sell and develop. It was his duty to put the land on sale and he was paid an overwriting on all the sales of that land. It necessarily follows from this relationship that Mr. Lund might be influenced *433 to appraise a parcel of land that his employer was interested in selling at a valuation whereby the property could easily become salable. A freeholder, as contemplated by the above statute, must be one who can make an unbiased appraisal free from outside influences and in accordance with the mandatory provisions of the act.
The writ is issued. Appellants may recover costs.
FEAD, C.J., and NORTH, WIEST, BUTZEL, POTTER, and CHANDLER, JJ., concurred. BUSHNELL, J., did not sit.