LINDSEY v HARPER HOSPITAL
Docket No. 104430
Supreme Court of Michigan
Argued March 5, 1997. Decided July 8, 1997.
455 MICH 56
In an opinion by Justice WEAVER, joined by Chief Justice MALLETT and Justices BRICKLEY and BOYLE, the Supreme Court held:
1. The period of limitation for a medical malpractice action is two years from the time a claim first accrues. However, where a potential claimant dies within thirty days after the statute of limitations has run or within the two-year period of limitation, the statute of limitations saving provision operates to suspend the running of the statute until a personal representative is appointed to represent the interests of the estate. The saving provision and the Probate Code are intended to work together. The saving provisiоn was amended to be consistent with the language of the Revised Probate Code, which reflected substantive changes to the responsibility and authority of temporary personal representatives. The amendments evidence an intent to allow temporary personal representatives to perform essentially the same functions and to bear the same responsibilities as personal representatives.
3. The question at issue is not one that supports prospective application. The plaintiff, by the letters of authority as temporary personal representative and by provisions of the Revised Probate Code, had full authority to commence and maintain actions on behalf of the estate, and did so by limiting claims against the estate. Given her assumption of such control, it is not unfair to require her to pursue claims on behalf of the estate within two years of her appointment as temporary personal representative.
Affirmed.
Justice KELLY, joined by Justice CAVANAGH, dissenting, stated that while the statute of limitations saving provision begins to run when the probate court issues letters of authority to a temporary personal representative, the rule should be given prospective application only. The revisions of the Probate Code since Szydelko v Smith‘s Estate, 259 Mich 519 (1932), while substantial, have not been interpreted by the Supreme Court during the interim. Therefore, the statutory interpretation now set forth provides a new rule. Thus, Szydelko should be overruled prospectively. To do otherwise would create a substantial hardship for the plaintiff, who did nothing more than rely on precedent that had been settled for sixty-five years.
The period of limitation for a malpractice action is two years. However, when an action is brought on behalf of a decedent‘s estate, a personal representative is allowed an additional two years to file after letters of authority have bеen issued. Szydelko supports the conclusion that the additional two years for filing this lawsuit began not when the plaintiff was appointed temporary, but rather when appointed permanent, personal representative. When Szydelko was decided, the term “personal representative” had no meaning different from that of “executor” and “administrator.” The Court was concerned with gleaning the intent of the Legislature in enacting the tolling provision. Therefore, it examined the Probate Code as it existed in 1932 and saw that various limitations and restrictions had been imposed upon temporarily appointed “special administrators.” It concluded that the Legislature intended to toll
Complete prospective application generally has been limited to decisions that overrule clear and uncontradicted case law. In determining whether a change in the legal interpretation of a statute should be applied retroactively, the Supreme Court examines the purpose of the new rule, the general reliance on the old rule, and the effect of retroactive application of the new rule on the administration of justice. The administration of justice is not enhanced in this case by now jeopardizing lawsuits filed within two years of appointment of a personal representative if a temporary representative was appointed earlier. If § 5852 is to be interpreted as triggering the two-year limitation period upon appointment of a temporary persоnal representative, the new rule should be applied prospectively only. Excluded from its scope should be this and all pending cases.
Justice RILEY took no part in the decision of this case.
213 Mich App 422; 540 NW2d 477 (1995) affirmed.
Sommers, Schwartz, Silver & Schwartz, P.C. (by Richard D. Fox and Richard Toth) (Richard A. Lenter, of counsel), for the plaintiff.
John B. DeMoss for the intervening plaintiff.
Dykema, Gossett, P.L.L.C. (by Daniel G. Wyllie and Kathleen McCree Lewis), for defendant Harper Hospital.
Charles D. Brown for defendants Richard Lenaghan, M.D., and Richard Lenaghan, M.D., P.C.
Wilson A. Copeland, II, for defendants Robert J. Holmes, M.D., and Arbula, Asfaw & Holmes Cardiovascular & Thoracic Surgeons, P.C.
WEAVER, J. The question presented is whether the plaintiff‘s wrongful death medical malpractice claim is barred despite the statute of limitations saving pro-
I
The estate of the decedent Carolyn Lindsey filed this wrongful death medical malpractice action in the Wayne Circuit Court. The action alleged that defendant Harper Hospital and other named defendants failed to diagnose or to appreciate a postsurgical infection that occurred between October 1, 1987, and December 17, 1987. These complications led to the amputation above the knee of the decedent‘s right leg. Mrs. Lindsey died on January 7, 1988, allegedly as a result of the complications.
Plaintiff, decedent‘s daughter, Lanya Lindsey, petitioned the Wayne Probate Court to be appointed temporary personal representative. The probate court approved the appointment and issued plaintiff letters of authority as temporary personal representative on September 14, 1990. On October 4, 1990, the probate
Defendant Harper Hospital moved for summary disposition pursuant to MCR 2.116(C)(7). Defendant asserted that plaintiff‘s claim was barred by the statute of limitations saving provision,
The circuit court denied defendant‘s motion for summary disposition, but the Court of Appeals reversed and held that plaintiff‘s claim was barred.1 This Court granted leave to appeal on October 9, 1996.2 We affirm the decision of the Court of Appeals.
II
The period of limitation for a medical malpractice action is two years from the time a claim first accrues.
A
In arguing that the statute of limitations did not begin running until the letters of authority for the personal representative were issued, plaintiff relies on Szydelko v Smith‘s Estate, 259 Mich 519; 244 NW 148 (1932).3 Szydelko interpreted the predecessor statutory provisions to the statute of limitations saving provision and Probate Code provisions at issue in the present case.
The statute of limitations saving provision at issue in Szydelko stated in pertinent part that the cause of
action may be commenced by or against the executor or administrator of the deceased person or the claim may be proved as a debt against the estate of the deceased person, as the case may be, at any time within two years after granting letters testamentary or of administration . . . . [1929 CL 13981.]
Szydelko found that “the appointment of a special administrator was a matter quite apart from the issuing of ‘letters testamentary or of administration.’ ” Szydelko, supra at 522. The Court noted that, unlike the general administrator, the special administrator had no powers of general administration and served solely to conserve the estate until the executor or general administrator was appointed. Id. More importantly, a special administrator could not be sued in personal actions accruing bеfore the death of the decedent. Id. at 523. Szydelko thus concluded that the two-year statute of limitations did not begin to run until the issuance of letters of general administration. Id.
We find Szydelko‘s consideration of Probate Code provisions instructive. However, we also find Szydelko not controlling for two reasons. First, the case at bar is distinguishable from Szydelko because the instant case involves claims by, rather than against, an estate. Second, there have been significant changes to both the Judicature Act and the Probate Code since Szydelko that limit Szydelko‘s precedential value.
The language addressed in Szydelko is inapplicable because
Furthermore, in 1988 the statute of limitations saving provision of the Revised Judicature Act was amended to no longer address actions against estates, so Szydelko no longer controls the interpretation of the saving provision. Other substantive changes were also made to the probate law that limit Szydelko‘s applicability. In fact, this Court recognized this limited applicability in Rhule v Armstrong, 384 Mich 709, 717; 187 NW2d 223 (1971) (overruled on other grounds). Rhule stated:
All language of the Court in the Szydelko case had to do with the filing and disрosition of claims in probate against the estates of decedents, and the statutes pertaining thereto, as same stood when the Szydelko claim was filed in 1928 and was disposed of by the Court in 1932.
The Legislature has made significant changes to the authority and responsibility of the temporary personal representative. As addressed in part II(B), temporary personal representatives are by definition personal
B
Because Szydelko‘s interpretation of the predecessor of the statute of limitations saving provision is not controlling, we are again faced with a question of statutory interpretation regarding when the statute of limitations saving provision began to run in this case. As amended in 1988,
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run.
The statute has the effect of extending the period of limitation set forth in
Because the term personal representative is not defined in the statute, we examine the Revised Probate Code for a definition. The saving provision of the statute of limitations and the Probate Code are intended to work together to preserve legal actions that survive death and to define the running of the statute of limitations where a person dies before or within thirty days of the running of the period of limitation. Under the rule of construction of statutes in pari materia, it is appropriate to harmonize statutory provisions that serve a common purpose when attempting to discern the intent of the Legislature. Jennings v Southwood, 446 Mich 125, 136-137; 521 NW2d 230 (1994); Wayne Co v Auditor General, 250 Mich 227, 232-233; 229 NW 911 (1930).
The statute of limitations saving provision of the Revised Judicature Act was amended by 1988 PA 221 to be consistent with the streamlined language of the 1978 Revised Probate Code. Turner v Mercy Hosps & Health Services of Detroit, 210 Mich App 345, 351, n 1; 533 NW2d 365 (1995). The Revisеd Probate Code abandoned “executor and administrator” in favor of the more encompassing title “personal representative.”
This streamlining of the probate nomenclature also reflected substantive changes in the responsibility and authority of temporary personal representatives.
executor, administrator, administrator with will annexed, administrator de bonis non, a temporary or successor personal representative, and a person who performs substantially the same functions in respect to the estate of a decedent under the law governing their status. [
MCL 700.9(3) ; MSA 27.5009(3).]
Further, the Legislature added an entirely new section to the Probate Code that provides:
If the temporary personal representative becomes the personal representative, all special requirements of sections 174 to 178 shall be waived and the temporary personal representative shall be accountable as though he were the personal representative from the date of appointment as temporary personal representative. [
MCL 700.179 ; MSA 27.5179.]
We hold that these amendments evidence an intent to allow temporary personal representatives to perform essentially the same functions and to bear the same responsibilities as personal representatives.
C
Our conclusion is consistent with the purposes of the statute of limitations saving provision,
full power and authority to take possession, collect, preserve, manage, and dispose of all the property of the estate according to law, and to perform all acts permitted or required by statute, court rule, and orders and decrees of this court . . . .
The letters of authority were identical in their delegation of powers as those issued to plaintiff as personal representative a few weeks later, the only difference being that the September 14, 1990, letters of authority included the word “temporary.”
Further, as stated above and unlike its predecessor, the Revised Probate Code does not limit the temporary personal representative to pursuit of actions involving the preservation and collection of assets of the estate. Compare 1929 CL 15589 with
Because we find no constructive difference in the Revised Probate Code regarding the authority and responsibility of temporary personal representatives and that of personal representatives, we hold that the statute of limitations saving provision ran from September 14, 1990, when plaintiff was appointed temporary personal representative. Therefore, plaintiff‘s claim was not timely under
Plaintiff argues that even if this Court holds that the statute of limitations saving provision ran from her appointment as temporary personal representative, that holding should be applied prospectively only. The general rule is that judicial decisions are to be given full retroactive effect. Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986). However, where injustice might result from full retroactivity, this Court has adopted a more flexible approach, giving holdings limited retroactive or prospective effect. This flexibility is intended to accomplish the “maximum of justice” under varied circumstances. Tebo v Havlik, 418 Mich 350, 360; 343 NW2d 181 (1984), citing Williams v Detroit, 364 Mich 231, 265-266; 111 NW2d 1 (1961).
Prospective application of a holding is appropriate when the holding overrules settled precedent or decides an ” ‘issue of first impression whose resolution was not clearly foreshadowed.’ ” People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982), citing Chevron Oil Co v Huson, 404 US 97, 106; 92 S Ct 349; 30 L Ed 2d 296 (1971). Although this is the first time this Court has considered whether the 1988 revised statute of limitations saving provision begins to run at the issuance of letters of authority for the temporary personal representative or the personal representative, this is not the type of first-impression question that supports prospective application. As the Court of Appeals persuasively reasoned:
The fact that a decision may involve an issue of first impression does not in and of itself justify giving it prospective application where the decision does not announce a new rule of law or change existing law, but merely gives an
interpretation that has not previously been the subject of an appellate court decision. [Jahner v Dep‘t of Corrections, 197 Mich App 111, 114; 495 NW2d 168 (1992).]
We do not find that the balance of justice demands prospective application in this case. Though plaintiff‘s claim may seem unfairly barred by our holding, it cannot be denied that all statutes of limitation set arbitrary time limits for legal claims. Statutes of limitation serve to protect defendants from stale claims. This purpose must be balancеd with the purpose of exceptions to statutes of limitation, such as the saving provision. The saving provision preserves a plaintiff‘s claim, but, as an exception to a statute of limitation, must be narrowly construed. Mair, supra.
Plaintiff, by the letters of authority as temporary personal representative and by the provisions of the Revised Probate Code, had full authority to commence and maintain actions on behalf of the estate. Indeed, plaintiff immediately exercised her authority under
Accordingly, the decision of the Court of Appeals is affirmed, and this decision is applied to this case, pending cases, and future cases interpreting
MALLETT, C.J., and BRICKLEY and BOYLE, JJ., concurred with WEAVER, J.
KELLY, J. I respectfully dissent. I agree with the majority that the 1988 Legislature has amended the Revised Probate Code to expand the authority and the responsibility of a temporary personal representative. Thus, I agree with the conclusion that the statute of limitations saving provision begins to run when the probate court issues letters of authority to a temporary personal representative. However, I would give this rule prospective application only.
The single question in this case is whether the “personal representative” envisioned by Revised Judicature Act § 5852 includes a temporary personаl representative. The statute states in pertinent part:
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run. [
MCL 600.5852 ; MSA 27A.5852 (emphasis added).]
In this medical malpractice action, plaintiff asserts that the appointment of a temporary personal representative does not trigger the limitation period. She
The foundation for plaintiff‘s argument is Szydelko v Smith‘s Estate.1 It held that the appointment of a “special administrator,” the historical predecessor of a temporary personal representative, did not commence the two-year period of limitation. However, the Court of Appeals adopted defendant‘s viewpoint.2 In doing so, it distinguished Szydelko.
The Court of Appeals stated that plaintiff‘s reliance on Szydelko was misplaced. It reasoned that Szydelko involved a suit against, not on behalf of, an estate. Also, the tolling statute and an assortment of probate statutes defining the powers of estate fiduciaries had been amended since Szydelko.3
Although I agree with the Court of Appeals that the Probate Code has been substantially revised since that time, the revision has not been interpreted by this Court during the interim. Therefore, the statutory interрretation that this Court now gives sets forth a new rule. I cannot agree with the majority‘s conclusion that this case is not a case in which prospective application of the law should apply. Jahner v Dep‘t of Corrections, 197 Mich App 111, 114; 495 NW2d 168 (1992).
Neither party disputes the facts of the case. Carolyn Lindsey died from complications following surgery performed at defendant Harper Hospital. Plaintiff, Lindsey‘s daughter, is the personal representative of the estate. The lawsuit is a malpractice/wrongful-death action against the hospital and several of its doctors.
The period of limitation for a malpractice action is two years.
The parties agree that the date of the first alleged malpractice was October 1, 1987. Consequently, October 1, 1989, became the deadline for filing a lawsuit. However, because this is a malpractice claim brought by an estate as a wrongful death action, the tolling provision is triggered. We have been asked to interpret the tolling provision.
For purposes of comparison, before 1988 the statute read:4
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by or against the executor or administrator of the deceased person or the claim may be proved as a debt against the estate of the deceased person, as the case may be, at any time within 2 yeаrs after letters testamentary or letters of administration are granted, although the period of limitations has run, subject to the limitations provided in section 20 of chapter 8 of Act No. 288 of the Public Acts of 1939, being section 708.20 of the Compiled Laws of 1948. But no executor or administrator shall bring an action under this provision unless he commences it within 3 years after the period of limitations has run. [1961 PA 236.]
The earlier version of the statute as well as the amended version is a saving provision designed to extend the period of limitation where death has occurred. Essentially,
In the present case, suit was filed on October 1, 1992. Plaintiff contends that letters of authority were
Defendant, however, contends that the two-year period stated in the saving provision began to run when the letters of authority were first issued. Thus, defendant argues that the present action is barred and that plaintiff‘s reliance on Szydelko was misplaced beсause that was an action against an estate and not by an estate. In order to fully comprehend the reason why the rule established by this Court today should apply prospectively, it is necessary to look at this Court‘s decision in Szydelko.
On January 4, 1928, Mr. Szydelko was killed instantly when struck by a truck driven by an employee of Hattie B. Smith. Ms. Smith herself died four days later on January 8, 1928.5 One day after her death, a “special administratrix” was appointed for her estate. Then, twenty-one months later, on October 2, 1929, that same person was appointed “general executrix.” The Szydelko estate filed suit against the Smith estate on September 4, 1931. However, by then, the period of limitation for a personal injury case had expired. Nevertheless, the tolling provision
In short, excepting antiquated terminology and the possibly importаnt distinction that Szydelko involved a suit against an estate, the issue in Szydelko was the same as in the present case: Did the extra two years for filing commence with the appointment of the special administratrix (now temporary personal representative) or with the appointment of the general executrix (now personal representative)?
The Szydelko Court held that the two years did not begin to run until the fiduciary was appointed general executrix. That meant that the suit was not barred by the statute of limitations. The key to the Court‘s holding was 1929 CL 15589:
An administrator . . . shall collect all the goods, chattels and debts of the deceased, and preserve the same for the executor or administrator who may afterwards be appointed . . . . All personal actions, the cause of which does by law survive and which may be pending either for or against the intestate of such special administrator, may be proceeded with and be prosecuted by or against such special administrator . . . .
Taking note of the word “pending” in the statute, the Szydelko Court interpreted the statute as meaning that a special administrator could defend actions filed before the decedent‘s death. It could not be made the defendant in any new lawsuit. Unfiled litigation would have to await the appointment of a general administrator or executor. Therefore, the Court concluded:
[U]nder the probate statutes of this State it must be held that the two-year limitation period does not begin to run
until letters of general administration have been issued. [Szydelko, supra at 523.]
Szydelko thus supports the conclusion that the additional two years for filing this lawsuit began not when the plaintiff was appointed temporary, but rather when appointed permanent, personal representative.
The terminology changes between 1932 and the present should not affect the analysis. While it is true that RPC § 175 allows temporary personal representatives to filе lawsuits,6 the current language is not materially different from 1929 CL 15589.7 Both the former and the current provisions observe a distinction between suits commenced by the temporary fiduciary and “personal actions” (apparently lawsuits initiated during the decedent‘s lifetime) that were already “pending.” But in that category too, the former statute and the current one are nearly identical.8
The Szydelko case was problematic because it was a postdeath lawsuit against an estate. It was the one
When Szydelko was decided, the term “personal representative” had no meaning different from that of “executor” and “administrator.” The Court was concerned with gleaning the intent of the Legislature in enacting the tolling provision. Therefore, it examined the Probate Code as it existed in 1932 and saw that various limitations and restrictions had been imposed upon temporarily appointed “special administrators.” The conclusion was that the legislative intent was to toll the statute of limitations until the appointment of an executor or administrator with general, unrestricted authority.
There the law has rested for over forty years. If, during that time, the Legislature ever intended to alter the ruling in Szydelko, it certainly had the time to do it. Plaintiff‘s argument is that, if the Legislature had wanted to change the outcome in Szydelko, it would have revised both the tolling provision and the Pro-
However, in 1978, the Legislature revised the Probate Code. In that revision, the term “personal representative” was introduced, but it was a term used in a generic sense, rather than to connote a specific status, position, or rank.
The 1978 amendments did not alter either the wrongful death act or the RJA § 5852 tolling provision, which is the focus of this appeal. The legislative intent behind 1978 PA 642 was to revise the Probatе Code and not to change the statutes of limitations or their tolling provisions. Although the amendments authorized a temporary personal representative to commence a lawsuit, it does not follow that RJA § 5852 was implicitly amended or that Szydelko was legislatively overruled.
In 1985, the Legislature rewrote the wrongful death act and added some special provisions to the Probate Code. Again, neither the statute of limitations nor the RJA § 5852 special tolling provisions were amended.
In 1988, the Legislature did amend RJA § 5852. The amendment came ten years after the major revision of the Probate Code, six years after Hawkins,9 and three years after the revision of the wrongful death
The interpretation of the act given by the Szydelko Court, where suit was brought against an estate, is no less valid when suit is brought by an estate. The internal language of the act does not make its interpretation dependent upon whether the estate is the plaintiff or the defendant. Distinctions continue to exist between those who are appointed only temporarily to conserve or protect assets and those who receive a permanent appointment to handle all an estate‘s affairs. Hence, the Szydelko ruling continues to provide a rational and sensible interprеtation of RJA § 5852. I find that plaintiff‘s reliance on Szydelko is not misplaced. However, I think that the time has come to overrule Szydelko.
The Szydelko holding was motivated by concern that estates could avoid suit by delaying the appointment of a permanent fiduciary. The present 1988 amendments of the tolling statute and the Revised Probate Code erase that concern. 1988 PA 221 deleted from the tolling statute all mention of actions against an estate. At the same time, 1988 PA 222 significantly revised the code provisions dealing with
The general rule is that judiciаl decisions are to be given complete retroactive effect. Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986). However, the Court has often limited the application of decisions that have overruled prior law or reconstrued statutes. Tebo v Havlik, 418 Mich 350, 360; 343 NW2d 181 (1984). Complete prospective application has generally been limited to decisions that overrule clear and uncontradicted case law. Id. at 361, 363.
In determining whether a change in the legal interpretation of a statute should be applied retroactively, the Court examines three factors: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect of retroactive application of the new rule on the administration of justice. People v Young, 410 Mich 363, 366; 301 NW2d 803 (1981). Furthermore, this Court has stated that “[a] rule of law is ‘new’ . . . either when an established precedent is overruled or when an issue of first impression is decided which was not adumbrated by any earlier appellate decision.” People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982).
In this case, defendant advocates a change in the law in order to enjoy the benefit of a limitation defense that was not available under the rule set forth
Defendant‘s is a technical interpretation of the statute. Thus, it is hard to identify any purpose behind the new rule defendant advocates other than to clarify a technical rule of law (i.e., Does appointment of a temporary personal representative now trigger the two-year limitation period of this statute?). Dismissing a medical malpractice wrongful death claim to clarify this issue extends a benefit to defendant fаr beyond the merits of the issue or the purpose for the new rule.
I have already alluded to the general reliance placed upon the rule in Szydelko. Someone searching for the effect of death upon the limitation period would find at § 5852 in the RJA that a personal representative has two years after appointment to file suit. It makes no reference to a temporary personal representative. Further amplification of this section in the annotations or through the Shepardization of cases would disclose the Szydelko case. Its holding would show that the two-year period runs from the appointment of the permanent personal representative of decedent‘s estate. One could be expected, therefore, to place reliance upon the only precedent on point, a holding unchallenged for the last sixty-five years.
The administration of justice is not enhanced by our now jeopardizing lawsuits filed within two years of appointment of a personal representative if a temporary representative was appointed earlier.
Consequently, if § 5852 is now to be interpreted as triggering the two-year limitation period upon
I would overrule Szydelko. However, I would hold that this plaintiff was entitled to rely on it for the proposition that RJA § 5852 would be triggered two years after she was appointed (permanent) personal representative. Therefore, I would reverse the Court of Appeals decision and allow plaintiff to go forward with her lawsuit.
CAVANAGH, J., concurred with KELLY, J.
RILEY, J., took no part in the decision of this case.
Notes
The bill would amend the Revised Judicature Act to delete a provision that establishes a statute of limitations on claims against estates. Currently, an action “by or against the executor or administrator” must be commenced within two years after letters of authority are issued, although the period of limitations has run, but
cannot be brought more than three years after the period of limitations has run. The bill would allow such an action, with those limitations, only by—and not against—the personal representative. [House Legislative Analysis, HB 5044, May 31, 1988.]However, the earlier language, in effect at the time of decedent‘s injury and death, is important in interpreting the 1988 act.
All personal actions, the cause of which does by law survive and which may be pending either for or against the intestate of such special administrator, may be proceeded with and be prosecuted by or against such special administrator . . . .
Similarly,
All personal actions, the cause of which by law survives and which may be pending either for or against the deceased, may be proceeded with, and be prosecuted by or against, the temporary personal representative . . . .
Therefore,
MCL 600.5852 ; MSA 27A.5852 operates to extend the time in which to bring such suits. That statute, quoted above, gives the fiduciary an additional two years from the date of issuance of letters testamentary in which to bring suit provided that, in any event, the fiduciary brings suit not more than three years after the limitations period has run. [Hawkins at 438.]