Weaver v. Shevitz

Fead, J. This is a suit for foreclosure of a real estate mortgage. The only question is whether the plaintiff is the real party in interest. The mortgage was executed in 1917 to William Miller, a resident of Pennsylvania. Mr. Miller died in a few months and his will was probated in the orphans’ court of his domicile. Some time later his *536 widow and children executed a distribution agreement different from the terms of the will and providing that the estate be assigned to the Armstrong County Trust Company to pay debts and hold the balance, the income to be paid the mother during her lifetime and at her death the corpus to be divided among the children. An order of court was made in harmony with the terms of the agreement, and directed the executors to transfer the estate to the trust company, which was done. Mrs. Miller died in 1924. A partial distribution was made shortly thereafter, and again in 1925, the note and mortgage at bar being the only property since retained by the trust company. In 1928, ancillary probate was had in Wayne county in this State, and plaintiff appointed administrator. The trust company assigned the mortgage to him. He commenced this suit. Defendants’ contention is that the distribution agreement and order of court thereon constituted an assignment of the mortgage to the children of decedent and that they are the proper parties to foreclose. ^Assuming, although it may be seriously doubted, that the proceedings in Pennsylvania constituted such assignment, nevertheless defendants’ contention is untenable. Neither a foreign executor nor his assignee can maintain proceedings in this State to foreclose a real estate mortgage belonging to decedent. The proceeding must be brought by an administrator appointed in this State. Reynolds v. McMullen, 55 Mich. 568 (54 Am. Rep. 386); McIntire v. Conrad, 93 Mich. 526. Plaintiff is the real party in interest and decree of foreclosure is affirmed, with costs. Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred.