Russell v. Wheeler , 129 Mich. 41 ( 1901 )

Grant, J.

{after stating the facts). All the assignments of error, which are many-, present only four propositions, and are so discussed by counsel. The four questions are:

1. Is the mortgage authorized by the probate court void because authorized and issued for a larger amount than asked for in the petition ?

2. Should the payment of the mortgage debts be excluded from the administratrix’s account because they were not allowed by the probate court, and she be held liable therefor ?

3. Must she be responsible for the rents and profits ?

4. Was the ruling of the court in striking out the item of rents from her account correct ?

1. I think that the mortgage is valid. It is not, in fact, in excess of the amount asked for in the petition. No claim is made that the two mortgages were not valid, or that the administratrix paid any more money than was due thereon. If the administratrix could have secured a loan of $1,500 subject to the other two mortgages, or if Mr. Warren had bought those mortgages and taken a third for $1,500, the situation of the estate would have been precisely the same as it is now, with the old mortgages paid out of the money received on the new. The result accomplished was the same, viz., the shifting of the security upon the real estate from one party to another. Under a petition to sell, it was held competent for the court to authorize a mortgage to pay debts. Cahill v. Bassett, 66 Mich. 407, 415 (33 N. W. 722). But my Brethren think its validity is doubtful. If, however, the mortgage were void, the administratrix would clearly be entitled to be subrogated to the rights and liens of the former mortgagees. Detroit Fire & Marine Ins. Co. v. Aspinall, 48 Mich. 238 (12 N. W. 214). The contestant would therefore gain nothing by maintaining its invalidity. The cases cited by counsel¹ do not support their contention.

2. The position taken by the contestant is anomalous. She says that the Warren mortgage is void, but is-valid to charge the administratrix with the full amount received thereon. If void, the foreclosure sale is void, and contestant still has her interest in the land. Why should she be charged with this amount, and not be credited with the amounts which she has honestly paid out upon the debts of the estate in an attempt to save something for the heirs ? These mortgage debts were debts due against the estate. In re Lambie’s Estate, 94 Mich. 489 (54 N. W. 173). Contestant’s counsel concede that the administratrix might have petitioned the probate court, setting forth that these mortgage debts had not been proved, that they were valid, and asked authority to pay them. There is no statute upon the subject. We see no reason why she should put the estate to the expense of such proceedings, where no question is raised as to the validity or the amount of the mortgages, or as to the right of the mortgagees to rely exclusively upon their liens. Had she neglected to take care of these mortgages, and loss had been entailed upon the estate, undoubtedly she would be liable for not paying.

3. Under the statute existing when letters of administration were issued in this case, and for some time thereafter, the administrator was not entitled to the possession of the real estate. The only'authority he had over it was to sell or mortgage it, under the authority of the probate court. Mrs. Gage continued to live with her family upon this farm, without any change in the character of her possession. She had a right to occupy it as a homestead for herself and her children. She had also a dower interest in it. There is not a scintilla of evidence tending to show that she was in possession as administratrix until she filed her account, in February, 1900. It will be presumed that she was in possession in accordance with law, rather than in opposition to law. Her bondsmen did not sign her bond upon condition that she should do things which the law did not permit, but only those things which the law did permit. Where the statute does not give an administrator a right to the possession of the real estate, neither he nor his bondsmen are liable for the rents or profits. In the absence of any agreement, he is responsible only to the heirs. State v. Barrett, 121 Ind. 92 (22 N. E. 969); Newcomb v. Stebbins, 9 Metc. (Mass.) 540; Palmer v. Palmer, 13 Gray, 326.

4. The item of rents was included in her original account for the sole reason that her attorney made no examination of the statute then in force, — supposed that it was the same as the one now in force, which gives the possession of the real estate to the administrator, — and advised her to make an account in accordance with what he supposed the law then was. It was discovered upon the trial in the circuit court that counsel was mistaken, and when so discovered a motion to amend by striking out that item was allowed. In this there was no error. The learned counsel seek to bring the case within Beam v. Macomber, 35 Mich. 457; Thompson v. Howard, 31 Mich. 309; Thomas v. Watt, 104 Mich. 201 (62 N. W. 345). Those cases are where the plaintiff had brought one suit upon one theory, and carried it to a conclusion in the court, and then brought another suit upon another theory. This is an amendment in the same suit, in which the court had jurisdiction to correct any error in the administratrix’s account. McPike v. McPike, 111 Mo. 216 (20 S. W. 12); 2 Woerner, Adm’n, § 513, and note 6.

The judgment is affirmed.

The other Justices concurred.

1 Viz.: Ryder v. Flanders, 30 Mich. 336; Edwards v. Taliafero, 84 Mich. 13; Griffin v. Johnson, 37 Mich. 87; Shipman v. Butterfield, 47 Mich. 487 (11 N. W. 283); Cahill v. Bassett, 66 Mich. 407 (33 N. W. 722).