Kuhns v. Marvel Paint Stores

Sharpe, J. Frederick Trostel, a' resident of Lansing, aged about 53 years, disappeared in 1893. He at that time had a wife, one son and two daughters. He owned several parcels of real estate in the city, among them a store building, now occupied by defendant. In 1912, his wife was appointed administratrix of his estate, on the representation that he had been absent and unheard of for more than seven years. She collected the life insurance which he carried. The real estate owned by 'him was listed in the inventory made. His son, George, had looked after and rented the realty in his own name up to the time of his mother’s appointment, and continued to do ;so, turning over the proceeds thereof to her. The mother died in 1921. She had made no report as administratrix. Soon after, the plaintiff, a daughter, applied for and was granted letters of administration. George, however, continued in charge of the property and collected the rents until 1924. In 1920, he entered into a lease with the defendant, to expire on December 31, 1924. It contained an option for renewal by defendant for five years, at an increased rental. In March, 1924, plaintiff’s attorney wrote defendant that the rents thereafter must be paid to' her. In the correspondence which followed, the attorney advised defendant that George had no right to make' the lease, but stated that plaintiff would be willing to accept the rent fixed therein for the present as a reasonable rental value of the premises. The defendant replied that its only interest was to see that the rent was paid to the proper person and, after having been furnished with a certified copy of plain *111 tiff’s letters, it sent to her its check for four months’ rent. Shortly thereafter, plaintiff notified defendant of an increase in the monthly rental. Defendant made tender of the amount fixed in the lease. On October 30, 1924, plaintiff began summary proceedings for possession. Defendant had judgment on trial before the commissioner, and also' on appeal to the circuit court. Plaintiff here reviews the judgment there rendered by writ of error. Plaintiff’s counsel contend that her appointment as administratrix is not affected by the holding in Beckwith v. Bates, 228 Mich. 400. Assuming for the purpose of this decision, but not deciding, that her appointment was legal, it follows that her mother’s was also. We quote from plaintiff’s brief: “Defendant’s original contract was made in form with George F. Trostel, but Trostel was acting as agent for the administratrix, having certain powers arising from acquiescence. We are not disposed to question but that by reason of such acquiescence he could malee any contract which the administratrix, herself, could have made, if her appointment was valid.” We therefore find the defendant in possession of this property under lease from the estate. On plaintiff’s appointment, she succeeded to the rights of her mother as administratrix under this lease. Kline v. Moulton, 11 Mich. 370, 382. If her mother could not have terminated it until the expiration of the five-year period, she could not do so. After her attorney had satisfied the defendant that she was entitled to collect the rent, it was thereafter paid to her. By doing so, the defendant in no way recognized plaintiff as a new lessor. While its lease was made with George, individually, defendant had then discovered that in making it he was acting for the estate, and was thereafter willing to acknowledge the plaintiff as administratrix as its landlord. By doing so, defendant gave plaintiff no right to change the terms of the *112 lease, nor to begin this proceeding for possession because of its refusal to pay the increased rental demanded. The statute (3 Comp. Laws 1915, § 13850) gave the administratrix the right to lease the realty “from year to' year.” The five-year lease, entered into by the son on behalf of his mother as administrar trix, was void, but it created a tenancy from year to year (Grady v. Warrell, 105 Mich. 310), terminable at the expiration of one year from the time of service of a notice to quit (3 Comp. Laws 1915, § 11812). The legislature in 1925 having passed an act (No. 205) providing for the disposition of the property of such an absentee, this estate may now be administered and settled agreeably to its provisions, should any of the parties interested so desire. The judgment is affirmed, with costs to appellee. McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred.