In re the Estate of Buchan

100 Mich. 219 | Mich. | 1894

Montgomery, J.

In 1879, George Buchan died intestate, leaving a wife and six daughters, whose ages were as follows: Isabella (now Hughes),, aged 19; Catherine, aged 14; Mary, aged 12; Maggie, aged 10; Jessie, aged 8 (since deceased); and Ha, aged 6. The widow, who had been appointed administratrix of the estate, died in less than a year after the decease of her husband, and James H. Menzies, an uncle of the minor children, was appointed administrator de lonis non. He continued in office until March 10, 1892, when his final account as administrator, filed on the 30th of December preceding, was allowed. The account showed that he had received $10,340.51, and paid out for the estate $8,493.31, including a charge for his services as administrator of $500. The balance, $1,847.20, is stated in the account to have been turned over by the administrator to himself, as guardian of the minor children, and accounted for by him as such guardian. The account thus balanced was allowed by the probate court. Mrs. Hughes appealed to the circuit, w'here the order of allowance was affirmed, and she now brings the proceedings had on the trial at the circuit to this Court for review.

At the trial the testimony tended to show that the personal property had all been applied to the payment of debts, and that the only remaining property consisted of a lot on Grand River avenue, in Detroit, upon which was situated a double store building with two tenements above the stores; that, during all the time since the decease of their father, four of the minor children had occupied one of the tenements; that the $1,847.20 referred to in the account was never in fact paid into the hands of the administrator, but that Catherine Buchan, one of the daughters, had received the rents, and receipted for them in the name of the administrator, and had applied the rents received from time to time to the support of the family, consisting at first of all the children, including the appellant, and after her marriage, in 1880, consisting of the remaining children, and that the same was true of the amount char'ged for compensation for services, and that, in addition, the administrator had contributed of his* own funds for the support of the children. Objection was taken to the admission of the testimony tending to show this state of facts on the ground that it was in contradiction of the charge which the administrator had made against himself. But we do not so understand the purport of the testimony. It was not an attempt to contradict the charge. The administrator recognized that the charge should properly be made, but the testimony referred to was offered for the purpose of showing a disbursement of the fund under such circumstances as, it was claimed, would relieve him from accounting further to the estate; the theory of the administrator being that this method of dealing with the estate had the approval of all the children who were of age, and that he, as guardian, had properly accounted for the funds received on behalf of the minor children.

It is contended, however, that the showing was not sufficient to discharge the administrator from liability.' This question is discussed in the briefs of counsel upon the apparent supposition that the Court will weigh the testimony. There were no findings of fact, and we are not advised as to what inferences were drawn from the testimony by the trial judge.

It is contended by the administrator’s counsel that there was testimony which fairly tended to show that the disposition which was made of the rents was known during all the years to the appellant; that, while this is not directly proven, yet the legitimate inferences from the proven facts justify such a conclusion. It appears, for instance, that she for a time lived in one of the tenements with the other members of the family, and that for nine years thereafter she lived in the same city, and visited back and forth with her relatives; and it is urged that from her close relationship, and her familiarity with their circumstances, she must- have known how they were being supported, and, further, that, with this knowledge, the statement of the appellant at the time of her departure to Chicago (made to the administrator in answer to a question from him as to whether she wished to have the property divided), that she was satisfied that it should not be divided until the children were all of age, could fairly be construed as authority to proceed with the appropriation, of the rents in the manner in which they had been appropriated, and that she must have intended to assent that the funds should be devoted to the support of her minor sisters. As before stated, we are not, upon this record, able to determine what inferences the circuit judge drew from the testimony, nor whether such inferences were justified. The appellant has not asked any findings of fact. Under such circumstances, we cannot, under settled rules of practice, go into an examination of the testimony to ascertain whether there is any testimony supporting any possible findings of fact which would sustain the judgment. Haines v. Saviers, 93 Mich. 441, and cases cited; Child v. City of Jackson, Id. 503.

The order below will be affirmed, with costs.

The other Justices concurred.