124 Mich. 561 | Mich. | 1900
The case below was an appeal from the allowance of the account of William Johnston, administrator of the estate of William Johnston, Sr. The appeal was tried before Judge Waite and a jury. It was claimed by Mrs. Morton that the administrator should be charged with the appraised value of the personal property, instead of the proceeds of the sale thereof; that a certain $225 claimed to have been paid for a tax title should not be allowed; that a charge in this account of $75 for services should not be allowed, for the reason that the administrator agreed to act without compensation; and that $150 credit to the administrator, allowed in his first accounting, should be charged back to him, for the same reason. The court determined, as matter of law, under the proofs, that the administrator had no l'ight to sell the personal property, and charged his account with $761.50, the inventoried price, less $65,. which had been credited to the estate as the proceeds of the sale of the property. The questions whether there was an agreement by the administrator to serve without compensation, and whether the tax title was purchased for the benefit of the estate, were submitted to the jury. The first question was answered in the affirmative, and the latter in the negative. The court thereupon disallowed the item for tax title, and the charge of $75 for services in the present account, and also charged back $150 allowed for services in the earlier account.
Was the allowance of the first account so far tentative that the items are open to attack when no fraud is shown ? No claim is made that the parties were not notified of the hearing on this account, and the statute (3 Comp. Laws 1897, § 9441) requires such notice. We are cited to cases from other States holding that the allowance of an administrator’s annual account is only prima facie evidence of its correctness, but we find no case in which this is held under a statute like ours. The case of Musick v. Beebe, 17 Kan. 47, is illustrative. In that case it was held that there was a broad distinction between the allowance of the annual account and the final account. The reason given is that the annual accounts are allowed without notice to those interested, while notice of settlement of final accounts is required. As to the item for services included in the first account, we think the contestant should have made this objection thereto on the hearing of that account, and, failing to do so, she is concluded; it appearing that she was in no way misled by any fraud of the administrator. Had there been any omission of credit or concealment of assets, a different rule would apply.
The account of the administrator will be credited with this item of $150, and, as he is charged with interest on this amount in his account, $53.15 of interest should be deducted; leaving the amount for which he should account to the estate $1,638.85, as of the date of the judgment below. The administrator will recover costs of this court, to be paid out of the funds in his hands. In all other respects the order of the circuit court is affirmed.