Perrin v. Judge of the Circuit Court

Campbell. <B The writ in this case brings up for review a decision of the Calhoun circuit court affirming an order of the probate court requiring the administrator of Horace J. Perrin deceased, who was original executor of Sibley, to* make disclosures of books and other information touching the condition of the estate in favor of Perrin’s successor,. Stephen Y. R. Bepper, who is administrator de bonis non, The order does not purport to provide for a regular administration accounting, but to require such information to be-furnished as will enable the administrator to know the condition and resources .of the estate he is called on to administer. Its purpose therefore is ancillary to such action as may be had in the probate court or in any other court in which litigation may be had, when such information is [345] needed or will be serviceable. The proceeding itself is in no way a part of any final accounting, and may be had under the statute, against strangers to the record as well as against persons who are really or nominally parties. The fact that no final decree can be made against the disclosing party does not become important in the inquiry. The statute authorizing the probate court to compel such a discovery applies in terms to all persons supposed to have had any dealing with the property of the estate, or who are-supposed to have in their possession or knowledge any deeds,, conveyances, bonds, contracts, or other writings which contain any evidence of or tend to disclose the right, title, interest or claim of the deceased to any real or personal estate, or any claim or demand, or last will and testament of the-deceased. Comp. L. § 4408. The language of the statute is broad enough to reach all persons able to give the information desired, and the position of Mr. Lepper, as administrator de bonis non, entitles him to such knowledge as will enable him to fulfill all the duties of his trust. Unless there is some peculiar reason why respondent should be exempted from the plain language of the statute, the relief was proper. This reason is supposed to exist in the fact that respondent is administrator of the-deceased executor, and liable to account as such, and also-because it is claimed the affairs of the estate are complicated with some partnership matters which it is claimed cannot be determined fully in the probate court and have been and are expected to be litigated in equity. The fact of respondent’s representation of a former executor does not under our statute entitle him to succeed his intestate in the trust. The statute is explicit that the executor of an executor does not ex officio occupy his place, and requires an administrator de bonis non to do so. Comp. L. § 4375. It follows,_ therefore, that the latter is entitled to have the property of the estate, and to seek information concerning it in order to understand, as well as enforce his rights. It is unnecessary now to consider the ultimate method of reaching control over such assets as are in the346 shape of claims or things in action. There can be no doubt of the right to such information as will guide him in seeking such relief as he may require in the proper forum, and in the proper procedure. The importance of getting such information to be used in other courts as well as in the probate courts has been well recognized and is apparent. Toller «on Ex’rs 495 ; Williams Ex’rs 1778. And the general right to obtain it, under powers less definite than those of our statute, has been understood as in no way barred or affected necessarily by equity or other proceedings to get final relief. Wms. Ex’rs 840, 1779 ; Brotherton v. Hellier 2 Cases temp. Lee 131; Lloyd v. Beatoniffe 2 Cases temp. Lee 561. The advantage Of pursuing the inquiry summarily and informally may save delay and simplify the proceedings elsewhere. And the representative of a deceased executor, even under the English rule of ¡succession, was bound to give information to the parties in interest, and the probate courts could compel it in any proper case. Colt v. Lasnier 9 Cow. 320; Comyn’s Dig. •“ Administrator, B.;" Farwell v. Jacobs 4 Mass. 634; Holland v. Prior 1 Myl. & K. 237; Gale v. Luttrell 2 Addams 234; Ritchie v. Rees 1 Addams 144; Wms. Ex’rs, 836; Redfield Surr. 359. If, as seems probable, the aid of equity is necessary to make any effectual determination of the rights of the respective parties in interest, these proceedings, being ancillary, .•are in nó way hindrances, and are valuable aids to enable the parties to know their rights and make them showings, and may materially simplify the equitable litigation, as well rás throw light on the final accounting. We need not therefore consider the standing or validity of the equitable controversies referred to in the record. They must be determined in the courts where they are supposed to be pending. We see no reason for reversing the orders 'of the circuit .•and probate courts. Care will be taken there to carry on the inquiry in such a way as not to create any needless difficulty -concerning the place of custody and access to books in daily úse. The probate court should and it is to be expected will [347] harmonize all these matters of practice with the convenience of those interested. The order will‘be affirmed. The other Justices concurred.