71 Mich. 119 | Mich. | 1888
Jacob Miller died on or about August 31, 1872, leaving a widow, Mary E. Miller, and five children, to wit, Mary J., Christopher, Abijah B., James S., and
The inventory of the personal property of the deceased, as appraised, amounted to $9,589.21. One of the items of this inventory was a note secured by mortgage on property known as the “Eureka Mills.” This note was appraised at $6,600. The mortgage was being foreclosed
May 13, 1873, James S. Miller, one of the heirs, and also one of the executors of the will of Jacob Miller, together with Francis O. Miller and Abijah B. Miller, their wives joining, executed a warranty deed of the Eureka Mills property to Thomas H. Jones and Edward Badger. Jones and Badger went into possession of the premises the same year. The corúplainant Silas Ireland came into the possession of the same premises in 1878, under purchase at a- foreclosure sale of the property by virtue of a mortgage executed upon the land by Jones and Badger. He has been in possession ever since.
April 7, 1876, Francis O. Miller and Abijah B. Miller executed a warranty deed of the house and lots in Dowagiac to one Conkright. Conkright conveyed the same premises in 1878 to the complainant Elizabeth Defendorf. Possession of the lots has been continuous in Conkright and Mrs. Defendorf since 1876.
The complainants filed their bill in the circuit court for the county of Cass, in chancery, in July, 1886, alleging the ownership and possession of the Eureka Mills property _n Silas Ireland, as heretofore stated, the ownership and
It is further averred in the bill that the executors of the will of Jacob Miller, to wit, Hiram K. Miller and James S. Miller, entered upon the duties of their trust, and possessed themselves of the personal estate of the deceased, which was more than sufficient to pay the debts and legacies and testamentary expenses; that such executors refused to come to an accounting as to their disposition of said personal estate, although often requested so to do; that they have never rendered any account of their administration to the probate court of Cass county, nor has the time for rendering such account ever been extended by said probate court.
The complainant Ireland alleges that the Eureka Mills property1 was conveyed to Jones and Badger in exchange for property in New York or New Jersey, which property, or the proceeds thereof, was appropriated by the said executors, and has never been accounted for by them; that he bought the property without any knowledge of the will of said Jacob Miller, or the terms and conditions of the same; that he has expended, since his purchase, over $4,000 in repairs and improvements upon said mill property.
The bill avers, further, that said executors, at the time
The complainants further show the amount of personal property left by Jacob Miller as appraised, to be $9,589.21, and aver that all the just debts did not exceed the sum of $2,500, and that the executors, from the sale and disposition of said personal property, secured more than sufficient money to pay such debts and the legacies to be paid under the will.
Complainants further aver that such order of sale is without lawful right or authority; that the petition (a copy of which is attached to the bill), is defective, and not in compliance with the statute, and gave the court no jurisdiction to grant a license; and that the payment of the legacies, by the terms of the will, are made dependent upon certain contingencies and survivorships, and that
The defendants answered, in substance, admitting the conveyances of the parcels of land claimed by complainants by Francis O. Miller, James S. Miller, and Abijah B. Miller, and their wives, but aver that such conveyances were made by said heirs for the benefit of themselves individually, and deny that any of the said lands were sold or disposed of for the benefit of the estate of Jacob Miller, or that any of said conveyances change or legally incumber said estate, or in justice or equity should hinder or delay said defendants in their duties as executors of the same. They admit that the personal estate inventoried $9,589.21, but aver that the notes and mortgages foreclosed, as heretofore stated, amounted to $7,700, which were converted by such foreclosures into real estate, thus reducing the personal property to $1,889.21, which has been exhausted in paying . debts; and that a large amount of debts yet remain unpaid. They deny that there was sufficient personal estate to pay the debts and legacies, and deny all other averments of the bill, except that they have petitioned for and been granted a license to sell the real estate of said deceased.
Upon pleadings and proofs the court below decreed that there was due to Mary Jane Miller, as legatee, the sum of $2,000, and that the executors should be empowered and authorized to sell a portion of the lands of said
For tbe purposes of determining this appeal, we do not consider it necessary to decide or discuss many of tbe points raised upon tbe argument touching tbe validity of tbe probate proceedings. Tbe complainants have not appealed, and must be considered as standing before us satisfied with tbe decree of tbe court below. That decree does not interfere with tbe jurisdiction of tbe probate court over tbe estate of tbe deceased, or deny tbe right of tbe probate judge to order a sale of tbe lands of tbe decedent to pay the legacy due to Mary Jane Miller ; but, on tbe contrary, affirms such right. But it changes tbe order of sale, and directs that tbe lands claimed by complainants shall not be sold until after the sale of tbe lands devised and descended which have not been conveyed by tbe heirs or devisees.
Tbe proofs show that tbe executors, under tbe license or order of tbe probate court, were proceeding to sell, and bad advertised the lands for sale, in such order that tbe lands of Ireland and Mrs. Defendorf would be sold first. This was a clear violation of tbe statute, which provides that,—
“If any lands devised or descended have been sold by tbe heirs or devisees, then tbe lands in their bands remaining unsold shall be ordered to be first sold.” How. Stat. § 6037.
But the court has gone further. Not content with directing that the lands shall be sold in the order prescribed by the statute in such cases, the decree goes further, and declares that the—
“Probate court had no right or authority to order a' sale for the payment of anything else than the payment of the said legacy mentioned in said will as going to said*127 Mary Jane Miller, and that the order of sale provided for , by the probate court, and set forth in the notice of sale of the lands so licensed to be sold by the probate court, was erroneous and unjust.”
It is contended by the defendants that the petition to the probate court, and the account of the executors in that court, show that said executors have expended, over and above the moneys received by them, the sum of ■$1,282.76, and that the probate court has the right, with which right a court of chancery cannot interfere, to order a sale of the lands of decedent to pay this balance and other expenses of the settlement of the estate. The complainants, however, claim that the record shows no debts existing against the estate, and that there was no showing by the executors that there was not an ample sufficiency of personal property in their hands with which to pay the debts and legacies; and that no accounting was made by the executors until 1884, some 12 years after their appointment, .and that on such accounting no vouchers were produced, nor was the account ever allowed and approved by the court. To this the defendants reply that chancery has no jurisdiction over the accounting of the executors, and that the settlement of the same is the exclusive province of the probate court, under the decisions of this Court.
An examination of the record shows that the defendants introduced no testimony in the court below; and there is really but little light thrown upon the true condition of the estate, or the doings of the executors, in the whole proofs. But there is enough to show that, if the estate had been properly adrpinistered, there would have been no necessity for resorting to a sale of any of the real estate to pay this legacy, pr the debts of the deceased; and it does not appear clear to us that the executors, at this late hour, have any right to - sell the
We are satisfied of the. jurisdiction of equity to enjoin this attempted sale by the executors under the order of the probate court; and, having jurisdiction to that end, the court of chancery may take sufficient cognizance of the whole matter to justify the decree in the court below. This decree will be affirmed, as, the complainants not having appealed, we can go no further. The costs of both courts will be granted to complainants.
We do not consider it necessary to discuss or decide the other points mooted upon the argument, as, in the condition the cause is brought here, we cannot determine the sufficiency of the title of complainants, as claimed by them, against the heirs, executors, or others claiming interest in the lands under Jacob Miller. This decree will therefore operate as without prejudice against any other proceeding to settle their title to the lands claimed by them.