Stevens v. Ottawa Probate Judge, 156 Mich. 526

Stevens v. Ottawa Probate Judge

156 Mich. 526 | Mich. | 1909

Grant, J.

(after stating the facts). We have not before us the great volume of testimony, amounting, it is stated, to about 9,000 pages, or the account as stated by the accountant for the petitioners, made up from the evidence produced in their behalf. The merits of the accounting are therefore not before us. Neither have we before us the testimony taken in regard to the “powers and authorizations,” and what was done under them, except the fact that shortly after they were executed Ed*533ward P. Ferry, to whom the powers of attorney and authorizations were given, executed three trust deeds or mortgages for the benefit of the creditors of the parties named in the authorizations. These trust deeds or mortgages were properly recorded. The debts of the parties named therein were very large. It seems evident that the interest of the petitioners in the estate of William M. Ferry was devoted to the purposes mentioned in said authorizations, and with the full knowledge and assent of the parties thereto.

The record consists of two printed volumes of considerable size, and one small volume containing the return of the circuit judge. The first volume consists of petitions, cross-petitions, answers to petitions, answers to cross-petitions, petition to the circuit court for the writ of mandamus, the return of the judge of probate thereto, and the orders of the probate court during the progress of the proceedings. The second volume consists of the proceedings in the court of Utah in the estate of Edward P. Ferry, an incompetent person, showing the accounts rendered, their allowance by the court, and the intervention of the petitioners here by a petition there charging extravagance, etc., on the part of the guardians of Mr. Ferry, and asking for their removal. In this proceeding the petitioners here were defeated in the court of Utah, and no appeal was taken from the decision of that court. The probate court found that there were errors, mistakes, and frauds in the two annual accounts rendered by the executor, which had been allowed by the then probate court, and corrects them. The amount found due includes interest upon the amount of the estate found to be in the hands of the executor when appointed from the date of his appointment to the date of the decree. It allows nothing for his commissions, fees, and expenses except the compensation allowed in his two annual accounts. The order of the probate court does not state the amount of the estate found to be in his hands and which it is charged he misappropriated and converted to his own *534use. The judge of probate in his return to the circuit court stated that the balance due from the executor, exclusive of interest, was about $420,000 — a sum considerably larger than that fixed by the inventory of the estate. Taking this as the amount of the property of the estate and deducting it from the total amount due, it leaves $800,473 as interest. Counsel for the executor, through his guardians and his guardian ad litem and next friend, contend that the statute applies only to an account rendered by the executor, and not to the extraordinary circumstances of this case, and that no such account has been rendered. We think counsel are in error upon this point. If an executor or administrator refuses to file an account, it is proper for those interested to ascertain, so far as they can, the amount of property that came into his hands, and to state an account for him.

The position of the executor has been, and still is, that the execution of the “powers and authorizations” was a settlement of the estate so far as the residuary legatees were concered, and that, if the petitioners were in position to call Mr. Edward P. Ferry to an accounting, it is as trustee under those documents, and not as executor. He, therefore, through his representatives, declined to render an account. They asked to have that question first determined by the probate court for the reason that there would be no occasion for an accounting as executor if their position in this respect should be sustained. It would have been entirely proper for the judge of probate to adopt that course, but he was under no legal obligation to do so. While the judge of probate did not expressly decide this question, yet he did so by clear implication; otherwise he would not have proceeded to an accounting.

Three questions were involved in the original petition and answer: (l) The removal of the executor; (2) his liability to an account; and (3) an accounting. It was entirely proper for the court to take testimony upon these questions, and decide them by one decree. Compliance with the order of the probate court to file an account *535would not have waived the other defense that the estate had been settled as between the legatees, and no accounting could be called for by them. While it appears to us upon the proceedings in the case now before ús that it would have been wise for the executor to have complied with the order of the court as to accounting, we must consider that the executor has all through been represented by well-known and competent attorneys in this State of good reputation, and that they in good faith advised the course pursued.

We think the probate court was in error in including in this bond the amount which would be due to the petitioners as heirs of Thomas W. Ferry, deceased. The “powers and authorizations ” executed by the petitioners were for his benefit, as well as that of Edward P. Ferry. In so far as Edward P. Ferry used the property of the estate to pay the liabilities of Thomas W. Ferry, that action was binding upon him and his heirs. It requires no argument to prove that, if he were living, he would not be heard to say to his brother: ‘ ‘ Give me my share of the estate, which I have already had.” Thomas W. Ferry’s estate is not settled. His executor or administrator is not a party to this litigation. The amount to which he would be entitled as heir should have been deducted from the amount of the bond.

A large part of the record and of the briefs of counsel is devoted to the administration of the estate of Edward P. Ferry, an incompetent, in Utah by his two sons, his guardians. It is urged that the records there show an unjustifiable and extravagant expenditure in the management of that estate by his guardians; the object being to show that the estate of the executor may be impoverished. While the compensation and other expenses allowed the guardians by the Utah court, a court corresponding in jurisdiction to the circuit courts of this State, may seem large, yet they were allowed by a court having exclusive control thereof. This court cannot sit in review upon the. decrees of the courts of a sister State having exclusive *536jurisdiction over the person and the subject-matter of a suit. The petitioners here applied to the court there, had a hearing, and were defeated. We must assume that the court of Utah will take proper care of the estate, and see that it is not dissipated. The proceedings in the court of Utah, and the allowance there made, seem to have had a good deal of influence with the probate court in fixing the amount of this bond. We think they are not entitled to consideration. For 35 years the petitioners, legatees under the will of William M. Ferry, took no steps whatever to compel an accounting or to procure the removal of the executor notwithstanding they knew that for many years he was absolutely incompetent to manage any business, and was broken down physically, and, to some extent at least, mentally, soon after his financial troubles in 1883. Then, too, the will gave the executor 10 years or more, if necessary, to put the estate in condition for distribution. It is evident from the record now before us that the testator contemplated that the businesses in which he was interested should continue. What caused the failure we have no means now of knowing. Executors and trustees are not generally liable for interest on trust funds in their hands. It may be a doubtful question whether the executor is liable for interest when legatees have authorized him to use their funds for the purposes mentioned in the “powers and authorizations.” Upon this we now intimate no opinion. It may furnish a good reason why a bond prohibitive of an appeal should not be required. A silence of 35 years, or 20 years after the execution of the “powers and authorizations” unexcused, with the knowledge of what was done thereunder, may furnish a reason why interest should not be charged, even if the executor is liable to an accounting. But these are questions which have been passed upon by the probate court and determined against the contention of the relator. The legislature has seen fit to commit to the discretion of that court alone the fixing of the bond in such cases. The appellate court can only determine questions of law upon *537an application to set aside the order so made. Power is not given to this court to review that discretion, even though the bond required should be prohibitive of an appeal.

It follows that the order of the probate judge must be so modified as to require a bond in one-half the amount found by that court to be due from the executor, viz., one-half of $1,220,473.44. The costs of this appeal will abide the final hearing upon the merits should an appeal be made.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.