In re Emmons' Estate

Ostrander, J. (after stating the facts). While lands of an intestate deceased person descend subject to his debts (3 Comp. Laws, § 9064), an interest or estate may exist in such lands or in a part of them superior immediately to the rights of creditors. The Constitution provides : “If the owner of a homestead die, leaving a widow, but no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner of a homestead in her own right.” Article 16, § 4. This court has held that this homestead right attaches whether the estate be solvent or insolvent. Koster v. Gellen, 124 Mich. 149; Eagle v. Smylie, 126 Mich. 612. It was strongly intimated that a sale of the homestead property, to pay debts, ought not to be made during the continuance of the homestead interest. Showers v. Robinson, 43 Mich. 502; Zoellner v. Zoellner, 53 Mich. 620. See Louden v. Martindale, 109 Mich. 235. Remarriage of the widow, there being no children, terminates the homestead right, though her dower right is not thereby affected. Dei v. Habel, 41 Mich. 88. All statutes relating to the settlement of estates of decedents must be construed together; and, so far as is possible, harmonized. Where limitations of time are imposed, they must yield to the consideration that they cannot be held to apply if their application would defeat the general purpose of devoting the estate to the payment of debts. The legislature has recognized that the limits it has set generally to the time within which estates must be closed may not always be observed. Rather, it has made an express exception in 3 Comp. Laws, § 9137, in providing: [309] “ If the appraised value of the homestead, as fixed by the probate court in the manner provided in section one of this act, shall not exceed fifteen hundred dollars, no further action shall be taken or had in the matter until such homestead shall cease to be exempt from the payment of .the debts of the deceased.” Manifestly the time when a homestead in lands of a decedent will cease to be exempt from the payment of debts is uncertain, and it may be so exempt for a period greater -than the longest time fixed otherwise for the settlement and closing of estates. See Kraft v. Kraft, 102 Mich. 439, 441. The facts found show the separating of the homestead property, of the value of not more than |1,500, from the other property of the estate, the insolvency of the estate, and the disposition of the remainder of the estate. They show that the homestead property became available to pay debts, if at all, on January 9, 1896, upon the remarriage of the widow. More than seven years •elapsed before the petition for appointment of an administrator de bonis non was filed. It is contended by counsel for appellant that the statute (3 Comp. Laws, §§ 9134-9137) “in no manner changes or affects the homestead when only of the value of $1,500, and ■does not in direct terms authorize a sale, except when exceeding that value,” and that “there is no provision of lat^ which authorizes a sale except during the administration, and no provision for pursuing it after administration is closed. If the import of this argument is understood, it is that such a homestead — one in value no more than $1,500— cannot be sold at all, if the statute is followed, unless it falls into the estate before the time otherwise limited by statute for closing the estate, or before the time when the estate is, otherwise, actually closed. Such a holding would do violence to settled rules of construction. There may be difficulties in fact, but there is no legal difficulty in saving both the constitutional homestead for those entitled to it, and, ultimately, the value of the fee for cred [310] itors of the decedent. The statute referred to, enacted in 1887, may be presumed to have been suggested by decisions of this court, and to have been intended to set at rest the questions discussed in Showers v. Robinson, supra, and in other of the cases cited. We are not required to indicate rules of proper procedure in such cases. In the case before us procedure has been adopted, the effect of which is questioned. It is necessary to consider whether, for any of the reasons assigned, the administrator de bonis non is to be held precluded from subjecting the particular homestead to the payment of debts. The objections made are founded upon (1) the effect of the proceedings to close the estate, and (2) upon the lapse of time. They will be considered together. It is not entirely clear, upon this record, what effect the order of February, 1895, was intended to have. Before his death the estate of Mr. Emmons had been in charge of his wife as guardian, and the probate court considered and attempted to settle, in one proceeding, the accounts of Mrs. Emmons as guardian and as administrator. It is found that, when the final account was allowed, there were no assets except the homestead and the personal property reported to be on hand, and which was, upon conditions named, turned over to the widow. Yet it was, for some reason, perhaps a reckoning of the then present value of the homestead, required that she pay to creditors, whose claims had been allowed, 20 per cent, of their several claims. The statute (3 Comp. Laws, § 9403) provides for the payment of a dividend when there shall not be assets sufficient to pay all of the debts of a class. Claims had been allowed to the amount of $2,734.16. The value of the estate, realized, was $6,118.86. Disbursements were allowed to the amount of $9,258.64. Including the appraised value of the homestead, the excess of disbursements, exclusive of the 20 per cent, of claims ordered paid, was $1,639.78. Of this sum $1,250 was allowed as guardian’s compensation, so that the excess of actual disbursements over total appraised and re [311] covered values was $389.78. Add to this 20 per cent, of claims paid, $546.83, and it appears that Mrs. Emmons disbursed $936.61 over and above the value of the whole estate which decedent left. She was allowed no compensation as administratrix, had no allowances as widow, excepting the personal property described in her final account. Her dower interest was never admeasured. She had herself an allowed demand against the estate for $605. There is, therefore, ground for saying that the orders of February, 1895, and October, 1896, were intended as disposing finally of the rights of creditors in and to the estate upon a basis considered to be equitable. That such was the intention may be further inferred from the following facts: No appeals were taken. When the final order was entered, the homestead interest had for several months been terminated. The widow continued to occupy the homestead with appellant, her husband, until her death, October 29, 1903. Either by will or by deed she conveyed her interest in the land to appellant. Two of the heirs at law of B. Ridge-way Emmons have transferred their interests to appellant, and last, but not least, a fact not found nor requested to be found by the court, but which is shown by the undisputed testimony, none of the creditors who presented claims were concerned in the appointment of the present administrator. The statement in the findings of law: “ That a satisfactory excuse for the delay exists and that appellant is estopped from objecting that the creditors allowed his wife to retain possession of all the land in question. There were, however, no special circumstances to cause the delay. The delay was mere leniency on the part of creditors” — is supposed to be based in part upon the asserted duty of the administratrix to herself devote the homestead property to the payment of the debts. This finding emphasizes the fact that the asserted neglect of duty and the real rights of creditors have been all of the time known to the creditors. The discharge of the administratrix was evidence to them that further action on her part was not to be expected. [312] It is argued for appellee that the question whether this estate should be opened has been passed, that it is open and in the hands of an administrator, and that the specific property not having been, in fact, heretofore devoted to the payment of debts, and it appearing that debts remain unpaid, the question of selling, unaffected by the former orders, is the only question here. The petition upon which the administrator de bonis non was appointed is not before us. It cannot, however, be held that the order opening the estate and appointing a representative is conclusive of the rights of owners of property which at some time was part of the estate.- The fee of the particular property descended — one-half to the wife, one-half to the other heirs. It was subject to be set apart as a homestead for the widow, and also to be sold for the benefit of creditors. The homestead right was interposed, and it ceased before the estate was settled and closed, of which facts all those interested had knowledge. If the orders which were entered, the estate being insolvent and the orders, in terms, closing it, were not conclusive upon the matter here presented after the time for appeal had expired, a point upon which no opinion is expressed, it is still true that a time must come in such cases as this when the heirs and the public may safely deal with the property. What is a reasonable period for action is, in this case, a question to be answered by the court. It is answered by saying that the unexcused delay for more than six years must be held to have determined the rights of the creditors to enforce their claims. It should be certified to the probate court that the order appealed from should be set aside, and the petition for.the sale of the homestead property dismissed. Appellant will recover costs of all courts. McAlvay, Grant, Blair, and Montgomery, JJ., concurred.