Look v. Durfee

Moore, J. In 1869, John Schehr died leaving a will, which was probated. He left a widow and six children. In his will he appointed three executors, giving them full ■power and authority to sell his personal and real estate, •and to invest the proceeds in mortgages upon real estate in Wayne county. The executors subsequently resigned, .and an administrator de bonis non with the will annexed was appointed. Upon his resignation, Mr. Look was .appointed administrator. At this time the debts and administration expenses had been paid, and the estate •consisted of personal property amounting to about $4,000. The widow, Mrs. Schehr, claimed that she was entitled to this estate. Her claim was not admitted by the administrator. She filed a bill in chancery to obtain possession of the property. Her bill was dismissed in the circuit court, and, upon appeal to this court, the decree was affirmed. The case is reported as Schehr v. Look, 84 Mich. 263. In that case the court construed the will of Mr. Schehr, and made use of this language: “ In the present case, however, it is evident, from the language employed, that the estate bequeathed to the wife is intended to be limited to the use, and after her death the whole body of the estate is to become vested in the children. Whether or not the testator intended to vest .any estate in the executors, or only to give them power of disposition, does not become important. The execution of the trust failed by the resignation of the executors before any portion of the estate had been disposed of or any distribution made. The estate is now in the hands of the administrator, and, upon proper application, undoubtedly a ■court of chancery would have power to appoint the necessary trustee for the control and management of the estate, and to pay the income over to the widow.” Doubtless, acting upon the suggestion contained in this464 opinion, Mrs. Schehr, in June, 1891, filed a bill in chancery against Mr. Look, as administrator, praying for an accounting by him as administrator and for the appointment of a trustee. July 23, 1891, a decree was entered in said cause according to the prayer of the bill. Mr. Look was appointed trustee, and filed his account as administrator, and entered upon his duties as trustee, and continued to obey the orders of the chancery court until Mrs. Schehr died, in July, 1895. In September of that year, Mr. Look filed his final account as trustee, showing a balance in his hands of something over $2,000. In October, 1895, Mr. Look was cited to appear before the probate court and file his final account as administrator. He appeared before the probate court, and objected to its jurisdiction upon the ground that he was now a trustee, and should account to the chancery court, and not to the probate court. The probate court held it had jurisdiction, and found a balance to be due from Mr. Look of something more than $5,000. The question involved here is, Should Mr. Look be required to settle his account in the probate court as administrator, or in the chancery court as trustee? In support of the contention that Mr. Look should settle with the probate court, counsel cite Holbrook v. Campan, 22 Mich. 288; Lafferty v. Savings Bank, 76 Mich. 35; 2 How. Stat. § 5957; and the recent cases of In re San-born’s Estate, 109 Mich. 191, and In re Sweetser’s Estate,.Id. 198. We do not think these cases are controlling here, for the conditions are very different. The only act Mr. Look had done as administrator was to take •the estate as it came to him. His right to the estate was at once questioned, and the aid of the chancery court was invoked to decide that right. It was then, said by this court that, upon the matter being brought before the chancery court, it would take jurisdiction to appoint a trustee, and later it did appoint a trustee. To its action in that respect apparently no objection was made, and for four years the trustee managed the estate under the direc [465] tion of the chancery court. In Re Sanborn’s Estate, 109 Mich. 196, Mr. Justice Montgomery said: “Assuming that the will creates such a trust as is contended, we think that, before the executor can discharge himself of his official responsibility, he must do some act to change the character of his holding, and show that the fund is placed safely where it ought to be.” Is not that just what has been done in this case ? Suppose the chancery court had appointed some one else as trustee, and Mr. Look, as administrator, had turned over all the assets in his hands as administrator to the trustee, who for four years administered the fund as trustee, and disposed of the income under the direction of the chancery court; could it justly be said that the probate court should still require the administrator to account to it for the entire fund, just as though no proceedings were had in the chancery court? We think not. The record shows that the fund which came to Mr. Look as administrator passed into his hands as trustee, and we think he should account as trustee to the court appointing him. The order of the circuit court is reversed, the writ will issue as prayed, and the order of the probate court is vacated. Grant, C. J., and Long, J., concurred with Moore, J.