125 Mich. 320 | Mich. | 1900
This bill was filed to set aside certain administrator’s sales of two parcels of real estate in the city of St. Joseph. One parcel is designated in the bill as the “Dwelling-House Property,” and the other as the “Boarding-House Property.” They both belonged to Peter Breidinger at the time of his death, June 28, 1874. He left surviving him his widow and the sis complainants, his children and heirs at law, who were born, respectively, as follows: Mary Breidinger (now Kammerer), September 14, 1861; Sophia Breidinger (now Weist), July 22, 1865; Peter Breidinger, May 3, 1867; Lizzie Breidinger (now Lorenz), February 15, 1869; Frank Breidinger, April 3, 1871; Nicholas Breidinger, March 5, 1874. Frank Morlock, one of the defendants, was appointed administrator of the estate, July 14, 1874. He filed his inventory and appraisement of said estate, showing the dwelling-house property appraised at $1,000, and the boarding-house property at $1,500. There was certain other real estate, which it is not necessary here to state. The personalty was.appraised at $245. Settlement was had in 1876, before the probate court, the account showing payment to outside creditors of claims originating before the death of Peter Breidinger amounting to $1,500, and the account closes with the statement: “Balance due administrator, $68.46; due creditors from estate, $800.”
It appears from the testimony that Morlock, as administrator, sold the dwelling-house property to Christian Melsheimer, and the boarding-house property to his step
It is claimed, however, that Stein was without means to pay his mortgage. The record shows that he held the property until June, 1880, when he deeded it to Morlock. According to the account of Morlock, in the May previous he had received on the Stein mortgage #655.65, and the mortgage was discharged May 31, 1880. The sale made by Morlock of these two pieces of property was duly reported to the probate court, and confirmed by that court, in February, 1879.
It is further claimed by complainants that the order appointing Morlock administrator cle bonis non is void for want of publication and notice required by 3 Comp. Laws 1897, § 9310; that the order and notice of hearing for the appointment fixed the time for hearing as August 9, 1878; that the order read that the hearing was to be had on “Monday, the 9th day of August next,” while Monday was not the 9th day of August, but the 5th day; that this was fatal to the jurisdiction of the probate court;
There is not sufficient proof in this record by which this court can enter upon an accounting between the parties. The decree below will be reversed, and the case referred back to the court below, where an accounting may be had. It appears that but two of the complainants, to wit, Frank and Nicholas Breidinger, can take advantage of this error, and that they alone can maintain this bill. Section 6075, 2 How. Stat.; also section 9128, 3 Comp. Laws 1897. The other complainants had rested upon their fights more than five years after becoming of age. Therefore the sales can be opened only in the interests of these two. The accounting will be had on the basis of their interest in the rents and profits of the property. It has been seen, however, that the administrator has paid, under the orders of the probate court, debts against the estate, his own debt included. It would be inequitable to say that these complainants should have their shares in the property, together with rents and profits, unless it be also provided that the administrator be repaid the amount of moneys, with interest thereon, which he has paid out upon the debts of the estate. It is therefore decreed accordingly. These two complainants will recover their costs of this court.