| Mich. | Jan 21, 1885
The plaintiff brought suit to recover from the defendant the amount of a deficiency arising from a sale under a decree in chancery in a foreclosure suit. Defendant was not a party to that suit. The trial was had before the circuit judge without a jury, who found the following facts : That about October 8,1875, Cornelius Kloppenburg executed to plaintiff a bond conditioned to pay her $500 on the 8th day of October, 1880, with interest at ten per cent., to be paid semi-annually until paid, which bond was secured by mortgage upon real estate executed by the obligor and his wife upon land in Kent county. Cornelius Kloppenburg, September 6, 1876, died testate, leaving real and personal property of the value of $5147.40, besides household goods amounting to $870.70. Defendant was appointed executor October 27,1876, by the probate court of Kent county, and letters testamentary were issued to him; which trust he accepted, and filed his inventory and appraisal February 3, 1877, and on March 6, 1878, he filed with the probate court what purported to be his final account as such executor of the estate, which was allowed, but no order of distribution was made by the probate court, and no order was entered discharging him from his trust. No commissioners on claims were ever appointed for the hearing and allowance of claims against such estate, nor was there any proceeding for the hearing of claims before the probate court, and no application by defendant was made for the appointment of commissioners, or hearing of claims in said court. Before the rendering of the last account of said executor he transferred to the widow of Cornelius Kloppenburg and his child, Catharina J. Lindhout, all the property, after payment of expenses, that came into his hands as executor. The will is not set out in the record, and there is no finding as to whether the above transfers were made in accordance with the requirements of the will. We presume it must have been so, as no charge is made that the executor violated his trust in this respect. The widow Susanna Kloppenburg, and Catharina J. Lindhout, shortly after receiving such property, disposed thereof, and now have no property liable to execution. Plaintiff, who is a
The circuit judge found as conclusion of law, from the foregoing facts, that plaintiff is not entitled to recover, and in this conclusion we agree.
The action is brought to this Court upon a case made; and the plaintiff’s counsel urges that because no commissioners on claims were appointed by the probate court, defendant is liable personally for this claim; and that such liability is founded upon the duty of the executor to see that such commissioners are appointed, or if commissioners are not appointed, it is his duty to see that a hearing is had before the probate court; and he cites How. Stat. §§ 5888, 5895, 5901, 5902, 5946 and 5929 in support of his claim. Section 5888 does not make it the duty of the executor to apply for the appointment of commissioners; it leaves it discretionary with the executor whether he will apply therefor, and if such application is made it leaves it to the discretion of the judge of probate whether or not he will make the appointment. There is nothing in this section of the statute which makes it the duty of the executors to make the application or to obtain the appointment. Section 5895 provides that in all cases where it is competent for the judge of probate to appoint commissioners, he may, if he thinks proper, instead thereof appoint a time and place for the examination and adjustment of claims before himself, and if his object is to hear claims generally, he shall give notice of the time and place when and where he will sit to hear claims, and of the time limited for creditors to present their claims, as is required
It was said in Pratt v. Houghtaling 45 Mich. 457" court="Mich." date_filed="1881-01-28" href="https://app.midpage.ai/document/pratt-v-houghtaling-7930215?utm_source=webapp" opinion_id="7930215">45 Mich. 457, where no commissioners were appointed and no time was fixed by the judge of probate for hearing claims before himself, that, “ until some provision was thus made to give creditors an opportunity to present their claigns, we cannot say they were cut off, under the facts and circumstances of the present case.” It is therefore to be observed that what was there said was confined to facts and circumstances of the. case then under consideration, and not as a statement of a general rule, under the statute, that claims are not cut off unless commissioners are appointed, or a time fixed for the allowance there
In Brown v. Forsake 43 Mich. 498, the administrator had distributed the estate before he rendered his final account, as in this case. Commissioners on claims had been appointed, and the time allowed to present claims to them had expired. The day before the hearing on his petition for settlement of his final account, Forsche presented a petition to the probate court to hear and allow a claim of $750 against the estate. The prayer of the petition was denied by the probate court, but on appeal to the circuit court was allowed, and thereupon the probate court made an order that the administrator pay the claim in twenty days. The case was then brought to this Court by writ of error. It was remarked by Mr. Justice Cooley in the opinion, that it appeared that long before Forsche presented his claim, or notified the administrator that he had one, the time had not only expired for presentation of claims to the commissioners, but for the settlement of the estate also. The same may be said of this case. The law limits the time for disposing of the estate and paying the debts of the deceased person to a period not exceeding one year and six months in the first instance. This time expired on the 27th day of March, 1878, and this snit is not brought until several years afterwards.
The bond held by the plaintiff was secured by a mortgage upon real estate. She had the right to present this bond to the probate judge, to be allowed as a claim against the estate, but she was not obliged to do so. She may have regarded the debt as being amply secured, and preferred to rely alone on the mortgage security. But if she intended to hold the estate responsible, she should have presented her claim to the probate court for allowance in the absence of commissioners. Clark v. Davis 32 Mich. 154" court="Mich." date_filed="1875-06-08" href="https://app.midpage.ai/document/clark-v-davis-7928043?utm_source=webapp" opinion_id="7928043">32 Mich. 154. Not having done this, the
The judgment is affirmed.