In re the Appeal of Nuckols ( 1894 )

Hooker, J.

The questions raised by this r.ecord involve-the reasonableness of certain charges for time spent in the-management and settlement of an estate, consisting principally of real property situated some miles from the residence of the administrator. The items objected to consist-of jper diem charges for time spent, including the use of' horse and vehicle, amounting to $45, a charge of $150 for time and services in getting possession of real estate, collecting rents, renting farms, etc., and a charge of $279.15-allowed by commissioners. These items were allowed by the probate judge, whose action was approved by the circuit judge; and, so far as the first .two are concerned, we see-no reason to disagree with them. Five dollars a day for time and team for the limited number of days during the-period covered by these services does not seem immoderate.¹ The items of expenditure forming a part of the account-show that the affairs of the estate were a matter of everyday consideration, for which no. other specific charge was-made. The evidence shows the nature of the services, and we think the charges are sufficiently specific.

The allowance of $150 as a gross sum, without particular specification of the items, is not without precedent. Such a charge was allowed in Loomis v. Armstrong, 63 Mich. 355; and in the case of Wisner v. Mabley Estate, 70 Mich. 271, cited by counsel, although the propriety of specific charges is mentioned, this Court made an allowance in gross based upon the testimony.

The item of $279.15 is attacked upon two grounds:

1. It is said to be invalid as an allowance by the commissioners, because it was not seasonably presented, and becartse no sworn testimony was offered before the commissioners in support of it.

2. It contained an item of $150 for a horse, which died while the appellee was on a trip for the intestate, previous, to her death.

The circuit judge found that this item ($279.15) was duly allowed by the comnlissioners. It appears from the-report of the commissioners, dated April 10, 1891, that an account was allowed amounting to $279.15. The same-report shows that public notice was given that the commissioners would meet for the purpose of receiving, examining, and allowing claims on September 26 and December-26, 1890, and that they did so meet, etc. The commissioners took the oath August 30, 1890. Upon' the trial at. the circuit, counsel questioned the validity of the allowance, contending that the evidence showed that the claim could not have been presented upon either day set for the presentation of claims. The appellee testified that.he presented it between the dates mentioned for the presentation of claims. Two copies of the account appear in the record, and appellant's contention seems to be based upon the fact-that one of them (which she claims that the appellee testified was the one presented) has at the head the following: “Ypsilanti, January, 1891." It has, however, a. verification dated March 5, 1890. The other copy is dated 3-29-1890, and is indorsed on back: ífAcct. C. E. Samson as allowed by commissioners." From these papers and the testimony of the appellee, the trial court found the fact that the claim was duly allowed by the commissioners. We must infer that he found that the claim was properly presented and allowed.

Upon the other point it is enough to say that the claim for the- horse was one of which the commissioners had jurisdiction. The circuit judge appears to have been satisfied that the claim was not a fraudulent one, and that the allowance was not collusive.

Again, the statement that there was no evidence before the commissioners is not borne out by the record. The ■only testimony upon the subject that our attention is ■called to is that of the appellee, and he states that he does not remember whether any one was sworn or not in his ■behalf. Consent to this allowance by two of the heirs was filed with the commissioners. Unless we are to infer, from the fact that the appellee says he does not remember that any testimony was taken, that no evidence was given in support of the claim, we must say with the circuit ■court that the subject was settled by the commissioners. He testified that it was possible that he was sworn, but he did not remember.

The order of the circuit court will be affirmed.

The other Justices concurred.

1 The period covered by these items extended from May 5, 1890, to March 10, 1891, both days inclusive, and they embraced charges-for time spent at time of appointment as special and general administrator; securing notices to creditors to present claims; posting said notices; trips to see a mortgagor, who was holding over after foreclosure; and two trips to Detroit to attend a suit against, the mortgagor, — making in all 9 days.