| Mich. | Oct 2, 1893
This action was brought in the circuit court of Iron county to recover the sum of $1,000, claimed to be due on a promissory note of that amount.
On the trial the plaintiff offered the note in evidence, and rested her case, withdrawing other claims. It was admitted on the trial that the plaintiff’s intestate died June 5, 1889; that plaintiff was appointed administratrix of his estate; that commissioners were duly appointed by the probate court of that county to hear and pass upon such claims as might be presented and proved; that proper notice to creditors to file and prove claims was duly published and posted; that defendant made no proof before
Chapter 2-24, How. Stat., fixes the manner of adjusting claims against estates of deceased persons. By section 1 of that chapter (How. Stat. § 5888) it is provided that—
“"When letters testamentary or of administration shall be granted by the judge of any court of probate, such judge may, in his discretion, or upon the written application of the executor or administrator, appoint two or more suitable persons to be commissioners to receive, examine, and adjust all claims and demands of all persons against the deceased, except in the following cases:
“ 1. When it shall appear that there are no debts existing against such deceased person.
“ 2. When the value of the whole estate, exclusive of the furniture and other personal property allowed to the widow, shall not exceed $150, and shall be assigned for the support of the widow and children, as provided by law, in which case such assignment shall be deemed a full and final administration and'bar to all claims against the estate.”
Section 5889 provides for the meeting of the commissioners, and giving notice thereof.
Section 5901 provides:
*117 “Every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.”
A preceding section (5894) provided:
“On the application of a creditor who has failed to present his claim, if made at any time before the estate is closed, the judge of probate may revive the commission, and allow further time, not exceeding three months, for the commissioners to examine such claim,” etc.
By section 5904, which is part of the same chapter, and stands as section 17 of that chapter, it is also provided:
“Nothing in this chapter shall be construed to prevent an executor or administrator, when he shall think it necessary, from commencing and prosecuting any action against any other person, or from prosecuting any action commenced by the deceased in his life-time, for the recovery of any debt or claim, to final judgment, or from having execution on any judgment.”
By section 5905 it is further provided:
“In such case the defendant may set off any claim he may have against the deceased, instead of presenting it to the commissioners, and all mutual claims may be set off in such action; and if final judgment shall be rendered in favor of the defendant, the same shall be certified by the court rendering it to the probate court, and the judgment shall be considered the true balance.”
It would seem, at first blush, that sections 5901 and 5905 are contradictory, and cannot be harmonized so that both can stand; but, after examination, it is evident that the intent of the Legislature was to allow the defendant, in an action prosecuted against him by the executor or administrator in certain cases, to set off a claim against the deceased in that action without first having the amount of his set-
It is essential to the interests of creditors and distributees that such estates be closed as quickly and cheaply as possible, and the assets collected. If one having a claim against an estate may remain silent, and refuse to present it to commissioners appointed for the very purpose of hearing and passing upon it, because the decedent held a note against him, and which the administrator may present for payment, it would be difficult to close the estate, in many instances; The commissioners are not appointed to ascertain and determine who are indebted to the estate, or to hear claims which the administrator may have against third parties, but to hear and pass upon claims against the estate, as presented to them. If the defendant had made known his claim'to the commissioners, it is true, the administratrix might have presented the note as an offset against it; but the administratrix could not, in the first instance, present the note before the commissioners as a claim against the defendant. The estate is not yet closed, within the meaning of the statute, as there has been no distribution. Green v. Probate Judge, 40 Mich. 244" court="Mich." date_filed="1879-01-23" href="https://app.midpage.ai/document/people-ex-rel-green-v-mccutcheon-7929241?utm_source=webapp" opinion_id="7929241">40 Mich. 244; Brown v. Porsche, 43 Id. 492. The defend
We think the court below correctly ruled.
Judgment is affirmed.
The note was given to the decedent November 1, 1888, and was due in one year from date.