156 Mich. 526 | Mich. | 1909
(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
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
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
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
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.