Coughlin v. Wineman

Potter, J. Plaintiff sued defendant; who had been administrator of the estate of Henrietta Wine-man, deceased, charging him with mismanagement and waste, technically for devastavit. From a judgment for defendant, plaintiff appeals. April 26, 1927, Walter Coughlin sued Henrietta Wineman in justice’s court. There was judgment for defendant and plaintiff appealed to the circuit court. June 15, 1927, Henrietta Wineman sued Jerry Coughlin in the circuit court for Wayne county. September 20, 1927, the two actions were consolidated. September 1, 1928, Henrietta Wine-man died. October 12, 1928, Henry Wineman was appointed administrator of the estate of Henrietta Wineman. November 12, 1929, Henry Wineman, as administrator, filed suggestion of the death of Henrietta Wineman in the case of Henrietta Wine-man v. Jerry Coughlin in the circuit court. Henry Wineman was not substituted either as administrator or personally in the case of Walter Coughlin v. Henrietta Wineman. April 2, 1931, the case of Walter Coughlin v. Henrietta Wineman was dismissed by stipulation, without prejudice. April 2, 1931, Jerry Coughlin filed an amended plea in the case commenced against him by Henrietta Wine-man, giving notice of set-off. April 4, 1931,-a judgment was rendered in the circuit court in favor of Jerry Coughlin for the amount of the set-off claimed in his notice of ■ April 2, 1931. June 1, 1931, Walter Coughlin made a motion to set aside the stipulation *471 dismissing the case of Walter Coughlin v. Henrietta Wineman. June 16, 1931, Henry Wineman, as administrator, was substituted in the place of Henrietta Wineman, as a party plaintiff in the case commenced by Henrietta Wineman v. Jerry Coughlin. June 16, 1931, the judgment against Henrietta Wine-man rendered in the circuit court was set aside and judgment was rendered against Henry Wine-man, as administrator of the estate of Henrietta Wineman, deceased. The item sued upon by Walter Coughlin in his suit commenced in justice’s court and which was appealed to the circuit court for Wayne county was the same item relied upon by Jerry Coughlin in his amended plea and notice of set-off; several years after the death of Henrietta Wineman, and several months after Henry Wineman, the defendant, was discharged as administrator of the estate of Henrietta Wineman, deceased. The item upon which judgment in this case was based is not one which was ever passed upon by the probate court or by commissioners on claims in the estate of Henrietta Wineman, deceased. It is not an item which was involved in any case to which the defendant as administrator of her estate was a party. The claim, during the time the estate of Henrietta Wineman, deceased, was pending in the probate court, was involved in a suit instituted by Walter Coughlin, as assignee of the plaintiff herein, against Henrietta Wineman. After the death of Henrietta Wineman, the probate of her estate, and the discharge of the defendant as administrator by the probate court, the case brought against her by Walter Coughlin in her lifetime was dismissed. The claim was pleaded as a set-off by plaintiff after her death, after the close of the administration of her estate, and after the discharge *472 of the defendant as administrator. To hold defendant personally responsible for the claim here involved is to hold him responsible for a claim which plaintiff did not own at the time suit was brought against Henrietta Wineman, and did not own during the time her estate was being* probated, jvhich he did not present to the probate court, and did not plead either during* the lifetime of Henrietta Wineman or during the probate of her estate, and until some months after the discharge of the defendant as administrator of her estate. Instead of defendant devastating the estate of Henrietta Wine-man to the injury of her creditors, the fact is the estate was conserved to the exclusion of those who were not creditors but would like to have been, and by unsubstantial afterthought now, after the estate of Henrietta Wineman has been administered, seek to enforce a subsequently-acquired claim against defendant personally. The defendant, Henry Wine-man, neither as administrator or otherwise, was ever a party to the suit of Walter Coughlin v. Henrietta Wineman. The claim that defendant, as administrator of the estate of Henrietta Wineman, under such circumstances, is guilty of devastating the estate of Henrietta Wineman to the prejudice' of plaintiff so as to give plaintiff a right to hold defendant personally liable for this item of set-off not asserted by him as a set-off or otherwise until long after the death of Henrietta Wineman, after her estate was probated, and after her administrator was discharged, has no support in law. The trial court said: “The claim of Jerry W. Coughlin and/or Walter Coughlin was never presented to the commissioners on claims appointed by the' probate court, and the *473 judgment upon which the plaintiff predicates this action was on a set-off filed in said cause after the estate of Henrietta Wineman was closed.” 3 Comp. Laws 1929, § 15687, provides: “Every person having a claim against a deceased person, proper to he allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.” 3 Comp. Laws 1929, §15689, provides: “All actions and suits which may be pending against a deceased person at the time of his death, may, if the cause of action survives, be prosecuted to final judgment, and the executor or administrator may be admitted to defend the same, and if judgment shall be rendered against the executor or administrator, the court rendering it shall certify the same to the probate court, and the amount thereof shall be paid in the same manner as other claims duly allowed against the estate.” 3 Comp. Laws 1929, § 15691, provides: “In such case, the defendant may set off any claim he may have against the deceased, instead of presenting it to the commissioners, and all mutual claims may be set off in such action; and if final judgment shall be rendered in favor of the defendant, the same shall be certified by the court rendering it to the probate court, and the judgment shall be considered the true balance.” When claims are presented and allowed against the estate of a deceased person, the executor or administrator is required to pay such claims if he *474 has sufficient assets for that purpose. 3 Comp. Laws 1929, § 15712. 3 Comp. Laws 1929, § 15713, provides: “When a claim shall he presented within one year from the time when it shall accrue, and be established, as mentioned in the preceding section, and the executor or administrator shall not have sufficient to pay the whole of such claim, the creditor shall have a right to recover such part of his claim as the executor or administrator has not assets to pay, against the heirs, devisees or legatees, who shall have received sufficient real and personal property from the estate.” 3 Comp. Laws 1929, § 15714, provides: “If an action shall be commenced against an executor or administrator on such claim, as is mentioned in section nineteen, and for the payment of which sufficient assets shall not have been retained, as before provided in this chapter, the executor or administrator may give notice under his plea to such action, '.that he has fully administered the estate which has come to his possession or knowledge. ’ ’ 3 Comp. Laws 1929, § 15715, provides: “If it shall appear on the trial of such action that the defendant had fully administered at the time the claim was presented, and had no assets which could be lawfully appropriated for that purpose, he shall be discharged, and shall have judgment for his costs; but if it shall be found that he had assets sufficient to pay only a part of such claim, judgment shall be rendered against him, for such sum only as shall be equal to the amount of assets in his hands.” Subsequent sections of the statute make provision for the establishment of the liability of the heirs *475 or beneficiaries of the estate and of creditors who have proved and established their claims in the probate court but no action may be maintained against the heirs or beneficiaries of an estate to recover property which they have received therefrom unless commenced within one year from the time the claim shall be allowed or established. 3 Comp. Laws 1929, § 15716. ■ In this case the defendant was not sued as administrator of the estate of Henrietta Wineman, deceased, but was sued personally. The claim was a claim sought to be established against Henrietta Wineman in her lifetime, suit having been instituted thereon before her death. The estate of Henrietta Wineman was probated in the usual and ordinary course. Notice to creditors to present and prove their claims was duly given and no claim was ever presented to, or allowed by, commissioners on claims, or by the probate court, in favor of plaintiff in said estate, while probate proceedings were pending therein. The estate was distributed in pursuance of the order of the probate court. The claim of plaintiff, not having been certified or presented to, or allowed by the probate court in any matter pending therein, this suit will not lie to enforce any liability to plaintiff against the heirs or beneficiaries of the estate, or defendant, who was administrator. The judgment of the trial court is affirmed, with costs. Clark, C. J., and McDonald, Fead, Wiest, and Butzel, JJ., concurred with Potter, J.