144 Mich. 663 | Mich. | 1906
{after stating the facts). That part of the •order of the probate court of January 2, 1885 (the adjourned day for hearing the account of December 11, 1884), reciting that she was discharged as administratrix; must be treated as a nullity. The court had no jurisdiction to make such an order. There was nothing in her account justifying her final discharge. Undoubtedly it was an oversight in entering the order. The same court -afterwards treated it as a nullity in ordering and allowing a second annual account.
The meritorious question is that involving the statute of limitations. She promptly paid most of the debts out •of her own funds. If she had not paid them, the creditors of the estate would clearly have been barred by the statute of limitations upon failure to proceed within the statutory period against her or her bondsmen. Winegar v. Newland, 44 Mich. 367; Biddle v. Wendell, 37 Mich. 452. By paying them out of her own funds, she stood in the position of an equitable assignee of the creditors. The statute fixes the time for disposing of the estate and paying the debts and legacies as one year and six months, and provides that upon due application and due notice of such application to all persons interested, the probate court
Counsel for petitioner seek to avoid the running of the statute of limitations by insisting that the estate could not-be closed during the lifetime of the widow, and that it: is the order upon the final accounting of an administrator-that becomes a final judgment. We cannot adopt either of these contentions. The administration of the estate could have been closed at any time, and, after the payment-of the debts and expenses of administration, the widow was entitled to the possession and' control of the residue of the entire estate. The judgment of the probate court allowing her account was final, and could only be set; aside on the ground of fraud or mistake. She could have taken steps immediately to enforce it. The fact, if fact it be, that she and her children had verbal negotiations looking towards reimbursing her for what she had paid, would not operate to prevent the running of the statute, or to revive the claim after the statute had run.
The judgment must be reversed, and this decision certified to the probate court for action thereon.