84 Mich. 474 | Mich. | 1891
April 13, 1875, Helen L. Lathrop executed her last will, in which she gave her son, John N. Derby, a legacy of $15,000, and devised to her husband, George A. Lathrop, certain lots, describing them, in Bast Saginaw. This will was duly admitted to probate December 30,-1875, and George A. Lathrop and Augustine S. Gay-lord appointed executors, who both duly qualified. Gay-lord, however, took no part in the actual management of the estate, and died June 21, 1877.
The will of Mrs.' Lathrop gave all her personal clothing and jewelry to a sister. Then follows the bequest to her son, John N. Derby, of the homestead and all the furniture and personal property therein;—
“Also the sum of $15,000 in money, the said money to be kept invested, and the interest thereof applied to his maintenance and suitable education until he shall attain the age of 21 years, the principal and any accumulation of the interest not required for the purpose aforesaid then to be paid to him.”
Then follows a devise to her husband as follows:
“ Fourthly. I give and devise unto my beloved husband,*478 George A. Lathrop, his heirs and assigns forever, lots 4 and 9, and the south 24 feet of lot 5, in block 15, according to Hoyt’s plat of East Saginaw, with the houses thereon.”
She also gives him “ block 10 in Derby’s addition to the village of Salina, now in the city of East Saginaw, to dispose of the same when and how he may deem proper,” the proceeds of the same to be used for the benefit of his son, George D. Lathrop. She also devises certain real estate to her sister, and $500 to a domestic in the family, and $6,000 to her executors in trust, the interest of such sum to be paid in equal proportions to a brother and sister annually, during their natural lives, the principal sums at their deaths to be paid to her son, John N. Derby, if then living and of the age of 21 years; the said sum to be mainly made out of the sale of real estate. The will then provides that if, after the payment of her debts and the charges of administration, her estate shall prove insufficient to pay the legacies in full, then she directs that they be paid in the following order:
1. The bequest to her sister of her personal clothing and jewelry.
2. The bequest to her son, John N. Derby.
3. The devise and bequest in the fourth clause of her will, to her husband, George A. Lathrop.
—And thereafter naming the order in which she wishes the other bequests paid. All the rest, residue, and .remainder of her estate she gives to her son and husband, share and share alike. She appointed Lathrop and Gaylord her executors, and authorized and empowered them to sell and convey any and all of her estate not specifically devised in the will, for cash or upon credit, or both, as to them might seem best, and out of the proceeds of such sales to pay and discharge the debts and expenses of administration, as well as the legacies;
This matter comes^ before us upon petition to the probate court and order of such court, appealed from to the •circuit court and affirmed and modified, and from that •court brought here for review upon writ of error. The points involved in said petition and order will be discussed as we proceed. The modification of the probate ■order made by the circuit court is not material to this issue. There were findings of fact by the circuit judge, and we shall first give a summary of so much, of such findings as is necessary for an understanding of the matters at issue.
February 24, 1876, Lathrop, as executor, filed an inventory in the probate court, showing real and personal estate to the value of $26,408.91. October 25, same year, he filed a partial account, showing cash received by him up to October 23, $5,266.23; disbursements, $2,124.89. August 21, 1879, another account was rendered, showing total amount received by him, $12,734.52, and total amount ■expended, $12,137.02, leaving balance of $597.50. In the inventory made and filed in the probate court the land devised to Lathrop, and block 10 of Derby’s addition, ■devised to him for the benefit of his son, were not included. December 18, 1877, Lathrop traded seven lots in this block 10, and lot 9, block 15, Hoyt’s plat, to one Henry Colclaugh for a farm in Boyal Oak, for the agreed ■consideration of $3,500. The title to the farm was taken in the name of Joseph Lathrop, of Detroit, and the transaction was had without any action by the probate ■court thereon. June 18, 1881, Lathrop sold to Emil Moores lot 4 and the south 24 feet of lot 5, block 15, Hoyt’s plat of East Saginaw, being part of the property devised to him in the fourth clause of his wife’s will, for $2,000, which sum Moores paid him in cash, and which
Lathrop, before February 9, 1883, paid all the debts and expenses of death and administration except his own charges. He made sale of the real estate devised in the sixth clause of the will to Mrs. Lathrop’s sister, Caroline E. Hayden, for the purpose of paying debts and the legacy to John N. Derby, under due application to the probate court and • the order of such court granted on such application, and had converted into cash all the rest of the real and personal estate of his wife, except two co'htracts for the sale of land, upon which there was due about $115. June 3, 1880, the probate court ordered that Lathrop should close the settlement of the estate within six months. He failed to' do so, and was cited into court to account, and to show cause why he should not pay over to the guardian of John N. Derby the legacy due to him. Lathrop, in obedience to this citation, filed his account, upon which hearing was had. This account was filed February 9, 1883. In this account for the first time he charged the estate with the moneys paid out by him in the farm transaction with Henry Colei augh, and charged as a credit to the estate the money received by him in the same transaction. He also credited the" estate with the $2,000 received from Emil Moores. But the probate court struck out all the items of said account on both sides, credit and debit, in relation to the farm transaction, and also the $2,000 item received
It is also found as a fact that Lathrop took possession, after the probate of the will, of the real estate devised to him and his son, and received the rents and profits thereof, and paid the taxes and repairs. June 9, 1880, a paper was filed in the probate court showing that this property was not included in the inventory of his wife’s estate, because the said estate had been supposed to be sufficient to meet all prior demands, and that individual possession of the property had béen taken by said Lathrop. The moneys received by him for rents, and the moneys expended by him on said property, were included by him for the first time in his account of February, 1883, and on the hearing of such account all these items were stricken out. After striking out all these items heretofore mentioned in regard to the farm transaction and this property devised to him and his son, and disallowing an item of $500 paid by him to Mrs. Ihrig, the probate court charged him for $1,500 lost by mismanagement of certain property, and allowed him $355.44 for his services and expenses as executor, and a balance was struck, from which it would appear that he was found to be in debt to the estate in the sum of $5,177.70. It was also ordered that the legacy to Derby had the preference in the estate, and $6,601.04 was found to be still due and unpaid upon it; and Lathrop was directed to pay the said sum of $5,177.70 over to David H. Jerome, the guardian
In October, 1883, Jerome, as guardian of Derby, took steps to bring suit upon Lathrop’s bond as executor. Judgment was rendered in this suit December 3, 1885, for $6,100.88. The case went to the Supreme Court, and was affirmed April 28, 1887.
Those relied upon here are as follows:
1. The probate court had no jurisdiction to make the order.
2. The executor, George A. Lathrop, having had in*483 his hands sufficient assets and money to pay the legacy, the amount of the legacy unpaid must be collected of him and his surety on his bond, and there is, therefore, no lien on Moores’ land.
3. The land was specifically devised to Lathrop, and not subject to the payment of Derby’s legacy.
We are satisfied that the land devised to Lathrop was •subject to Derby’s legacy. It is expressly made so by the terms of the will, provided that, after the payment of the debts and expenses of admiáistration, the estate shall be found to be insufficient to pay all the legacies in full. Moores cannot be considered a good-faith purchaser. He knew, or could have known by consulting the records in the probate court, that there had been no settlement of the estate, and that the legacy of John N. Derby had not been paid. He could get no better title to the land than Lathrop had at the time it was sold to Moores.
It is contended that there was personal property enough in the hands of Lathrop to have paid this legacy, and that Moores ought not to be held responsible for the wasting of it, or its misapplication by Lathrop. There is no showing in the record what the amount of the personal property was. The account of Lathrop, as settled by the probate court, shows that he had in his hands $5,177.70 only that could be applied on this legacy, when there was $6,601.04 due upon it. The account as allowed is not controverted, nor is it shown what his disbursements were, or where his receipts of cash came from. We must consider, therefore, that his expenditures were lawful and proper. If so, then there was not cash •enough, without resorting to this real estate devised to him for his own use and that of his son, to pay this legacy in full.
The question, then, arises, who is to lose this $5,177.70 which Lathrop had in his hands, and ought to have paid on this legacy, but which he has squandered or stolen?
It is further urged against the authority of the probate court to make this order that the suit to subject this land to the payment of this legacy should have been brought in equity; that, if this land is .charged with its proportion of the legacy, all the other lands, sold or traded by Lathrop are equally chargeable, and all persons purchasing such lands must be made parties; that a court of equity only, in such case, can fix the rights of the different parties, and do justice between them. We are not informed by this record how much real estate the testatrix owned at her death outside of the homestead and the lands devised to Lathrop and Caroline E. Hayden, except as stated in the petition of Jerome; and in such petition it is not stated to whom the same was sold, or how much was received upon the sale of the same, but it would seem from the findings of fact that the same
It is further claimed that the lapse of time is a bar to the enforcement of the right of the legatee to follow this land for the payment of his legacy; that the time in which an executor can be authorized to sell lands for payment of legacies was limited to six years under the ■statutes in force at the time of Mrs. Lathrop’s death. The will was probated December 30, 1875. The executors qualified January 22, 1876. We think the court of probate had not lost its jurisdiction. The estate had never been closed, and there was a will, which, by its terms, evidently did not intend that the estate should be
It must be remembered, also, that John N. Derby is the only heir at law of Mrs. Lathrop, and only he, George A. Lathrop, and Moores are interested in this question. Derby is moving for the sale, and Moores, as heretofore ruled, must stand in the place 0f George A. Lathrop, and has no better right than Lathrop to contest these proceedings. As against Lathrop, the wrong of Lathrop would excuse the lapse of time, as there has been no laches on the part of Derby. Lathrop was brought to> account while the estate was still in his possession as executor, and not closed; and as soon as Lathrop absconded proceedings were commenced, and have since been prosecuted with commendable promptness and vigor, to regain the scattered and wasted property of this estate for the purpose of applying it to the payment of this legacy. The same reasons which would prevent Lathrop from interposing the defense of lapse of time and laches against the subjection of this real estate to the payment of this legacy apply to Moores, and are a perfect bar to> the same defense in his hands.
The finding of the circuit court, affirming and modifying the order of the probate court, is sustained, with costs, and it will be certified accordingly.
See 65 Mich. 652.
