Griffith v. Bucholtz , 295 Mich. 563 ( 1940 )

Wiest, J.

Albert J. Bucholtz was liable upon a bank stock assessment at the time of his death in February, 1936. His son, Francis H. Bucholtz, was appointed administrator of tbe estate and tbe Fidelity & Deposit Company of Maryland was surety on bis bond. In due course, bearing of claims against tbe estate was bad before the probate judge, followed by an order for distribution of tbe estate. Plaintiff herein did not present tbe claim for tbe assessment at that bearing but tbe next day made application to have tbe claim heard and allowed. Tbe probate judge reopened tbe bearing of claims, and the claim was allowed and no appeal taken. Tbe claim was not paid, though tbe administrator had sufficient funds in bis bands to make payment, and this suit was brought against tbe administrator and tbe surety on bis bond to recover tbe claim as adjudged in tbe probate court.

The issues were tried without a jury and tbe circuit judge made findings upon which be entered judgment against tbe administrator and bis surety.

On appeal by defendants it is claimed that tbe stock assessment liability did become absolute in tbe lifetime of tbe deceased; that tbe court erred in finding fraud in tbe actions and doings of tbe administrator and in holding that there remained funds belonging to tbe estate with which to pay tbe tardy claim and in adjudging the surety liable. Tbe liability on the stock assessment accrued during tbe lifetime of tbe deceased.

Claims against the estate were beard before tbe probate judge on February 24, 1938, and on that date tbe probate court entered an order allowing tbe final account of tbe administrator and assigning tbe residue of tbe estate to the heirs of the deceased.

Tbe circuit judge found:

“Tbe residue of said estate as shown on that date by said administrator consisted of personal property of tbe value of $1,981 and real estate of tbe value of $4,000. It appears, however, without dispute, that on or about the 18th day of February, 1938, that said administrator caused the sum of $1,180 of said personal property, consisting of a deposit in the Farmers & Merchants Bank of Lakeview, as reorganized, to be transferred from the name of him, Francis H. Bucholtz, as administrator, to a new account in the name of Francis H. Bucholtz, as trustee. The obvious but unavailing purpose of such transfer was, when taken in connection with his subsequent acts, fraudulent in character and was thereby to avoid the payment of the assessment in question against his decedent.

‘ ‘ On the 24th day of February, 1938, said administrator took receipts from the several heirs of said estate, except himself, for their several shares as distributees of said estate but no money or property was at that time or since transferred by said administrator to them or either of them. The amount of personal property remaining in the hands of the administrator after the establishment of the so-called trustee account was of the value of $801. This personal property still remains in his hands as administrator.”

Under the delay in having the claim allowed the plaintiff could only look to the undistributed part of the estate and the circuit judge, as above stated, found the amount and awarded judgment within that amount against the administrator and the surety on his bond.

An examination of the record brings us to agreement with the findings of the circuit judge. The judgment is affirmed, with costs against defendants.

Bushnell, C. J., and Sharpe, Boyles, Chandler, North, McAllister, and Butzel, JJ., concurred.