Svitojus v. Kurant

For the reasons hereinafter stated, the circuit judge's decree dismissing plaintiffs' bill of complaint should be affirmed. A question of first importance is whether the decree entered in the Federal court for the western district of Michigan should be held to be res judicata of the present suit. Plaintiffs are residents and citizens of the Republic of Lithuania, and defendants are residents of this State. Obviously plaintiffs planted their former suit in the Federal court because of diversity of citizenship. The record on this appeal clearly discloses that the parties litigant in the instant case are the same as in the Federal case and the subject matter is the same. In both suits plaintiffs charged defendants with the same fraud and misconduct, and the same testimony was presented and relied upon in the two cases. After a full hearing on the merits the judge of the Federal court found plaintiffs had failed "to establish by a fair preponderance of the evidence the charges of fraud and conspiracy" and in consequence thereof he held the Federal court was without power or jurisdiction to grant relief. A decree was entered dismissing plaintiffs' bill of complaint.

It may be conceded that dismissal in the Federal court, if on the sole ground of lack of jurisdiction of the parties or of the subject matter, would not bar a subsequent hearing and determination of the same suit in a court of competent jurisdiction. Hughes v. United States, 4 Wall. (71 U.S.) 232. But a fair reading of this record discloses beyond all question that, after hearing the same testimony that the circuit judge in the instant case heard (with the exception of some inconsequential exhibits introduced by defendants), the Federal district judge found against the plaintiffs because they had failed to establish the fraud or misconduct on the part of any of the defendants that plaintiffs had charged in their bill of complaint. Surely this was a holding on the merits of that case, and plaintiffs are now in the State courts asking a second adjudication of the identical issues between the same parties; and, strange as it may seem, on the same testimony as taken in the Federal court. The district judge, notwithstanding he stated a lack of jurisdiction, made it plain that he was brought to his conclusion because plaintiffs had failed to prove the alleged fraud or misconduct on which they asserted their right to relief. Nowhere in his opinion did the Federal district judge question the obvious fact that he did have jurisdiction of the parties and of the subject matter in this suit; but he did hold that he could not grant relief because plaintiffs had failed to prove the alleged fraud or misconduct. In this particular we quote from his opinion:

"Plaintiffs have failed to establish by a fair preponderance of the evidence the charges of fraud and conspiracy enumerated in the last preceding paragraph of these findings, and withthese issues eliminated no jurisdiction remains in this court to determine issues relative to lack of prudence in making investments or to the settlement of the accounts of the guardian or administrator, or as to the liability of the surety upon the bond of the guardian.

"The sole jurisdiction over these remaining issues is vested in the probate court for the county of Kent."

From the above it convincingly appears that Judge Raymond, before whom the case was tried in the Federal court, specifically passed upon the merits of plaintiffs' case insofar as the bill charged fraud or conspiracy on the part of defendants; but he declined to pass upon the matters specifically indicated in his opinion, to-wit: (1) The propriety of investments made with funds of the Svitojus estate; (2) the settlement of the accounts of the guardian or administrator; (3) the liability of the surety upon the guardian's bond. As to each of these three issues the Federal judge held that "sole jurisdiction" was in the probate court of Kent county, wherein the matter of the Svitojus estate was still pending.

In disposing of a motion to dismiss in the Federal court, Judge Raymond in his opinion said:

"The court, after a careful review of the record, is of the opinion that these charges (of fraud or conspiracy) have not been sufficiently sustained to warrant the relief prayed. Thisfinding compels dismissal of the bill of complaint for want of jurisdiction. * * *

"It is probably true that had the proofs established conspiracy or fraudulent misappropriation with consequent wastage of the assets of the guardianship and decedent estates, this court would be warranted in assuming jurisdiction, but no case is cited by plaintiffs and none is revealed by diligent search which warrants the assumption of such jurisdiction for determination of the other issues here involved. * * *

"An order may be entered dismissing the bill of complaint for want of jurisdiction, but without prejudice to furtherproceedings upon similar issues in the probate court of Kentcounty."

In none of the cases cited in my Brother's opinion does it appear, as in the instant case, that the court's dismissal on a holding of lack of jurisdiction was based upon the plaintiff's failure to prove alleged facts essential to recovery on the merits. Even in Weigley v. Coffman, 144 Pa. 489 (22 A. 919, 27 Am. St. Rep. 667), cited and quoted in Mr. Justice CHANDLER'S opinion, it appears that dismissal for want of jurisdiction was on demurrer, not after a hearing on the merits. The following is from the syllabus in that case:

"When a bill has been dismissed upon the ground that the court had no jurisdiction, showing that the merits were not heard, the dismissal is not a bar to a second bill."

From the record before us it appears the holding of the Federal district judge was that plaintiffs, who sought relief on the ground of alleged fraud and conspiracy, had failed to prove their case on its merits; and on its merits the Federal judge decided these issues against plaintiffs. Such decision clearly constitutes res judicata of the same issues presented by the same parties in the instant case. In short, the holding of the Federal district judge was this: Since plaintiffs sought relief on the ground of fraud or misconduct which they did not prove, they had failed on the merits; and insofar as they sought relief on other grounds above enumerated, their sole remedy was to institute proceedings in the Kent county probate court, because as to such matters the Federal court was without jurisdiction after plaintiffs had failed to establish alleged fraud or conspiracy. To this end the Federal court's decree dismissing the bill of complaint specifically provided it was without prejudice only as "to further proceedings upon similar issues in the probate court of Kent county." As to plaintiffs' allegations of fraud, conspiracy and misconduct in the Federal court case, the decree of the Federal judge was final, and not "without prejudice;" but the right of plaintiffs to litigate in the Kent county probate court the other issues specified was reserved. To this extent only the Federal court's decree was without prejudice. In this connection it should be noted that proceedings in the Joseph Svitojus estate in the Kent county probate court were pending while plaintiffs' Federal court suit was being tried; and that such proceedings were still pending in the probate court when the instant case was appealed to this court. Evidently with this in mind the circuit judge, in decreeing dismissal of plaintiff's bill of complaint in the instant case, also provided that such dismissal was "without prejudice to any further proceedings in the probate court of Kent county."

Under this record the Federal district judge clearly passed upon the merits of plaintiffs' claim that defendants were guilty of fraudulent misconduct and dismissed plaintiffs' charges so made as not proven. When thereafter in the instant case the same plaintiffs made the same charges against the same defendants and relied on the same testimony, it necessitated the holding of the circuit judge that such charges had already been adjudicated. His decree dismissing the bill of complaint without prejudice to plaintiffs' right to institute further proceedings in the probate court of Kent county, not involving the alleged fraudulent misconduct or conspiracy adjudicated in the Federal court, should be affirmed.

Appellees also urge other grounds for affirmance which we think must be given consideration. They stress another phase ofres judicata and also laches on the part of plaintiffs.

As to appellees' further claim of res judicata, the record discloses that defendant Joseph Kurant submitted his first guardian's account in 1926; and he therein plainly disclosed to the probate court that of the $14,056.85 which constituted the estate in the guardian's hands and which had come to him in cash, $13,204.88 had been invested by him in land contracts. In part the guardian's annual account reads:

"Money invested in land contracts $13,204.88 Money in savings account 204.92 ---------- $13,409.80"

The balance of the estate ($647.05) was accounted for by expense items incurred during the year. This annual account was regularly submitted to the probate court and allowed, April 26, 1926, by Probate Judge Clark E. Higbee, who was not related to the surety on the guardian's bond. There was no appeal taken from this order. The hearing and approval of this first annual account was res judicata of any claim that the guardian's prior "land contract" investments had been improperly or fraudulently made. The exception to the foregoing statement is that the order of allowance would be assailable if obtained by means of fraudulent misrepresentation or fraudulent concealment, but of this there is no proof; and a further bar to such a contention will be noted in considering appellees' claim as to laches. Concerning the finality of a probate court's allowance of a guardian's account from which no appeal is taken, we have said:

"A guardian's accounting is an equitable and not a legal proceeding. It involves not merely the ordinary items of debit and credit, but also considerations as to the propriety of charges and investments and as to the allowance of compensation." Gott v. Culp, 45 Mich. 265, 275.

In Re Horn's Estate, 285 Mich. 145, 151, Justice CHANDLER, speaking for the Court, said:

"The requirement of an annual account is not deemed an idle ceremony, but an order of the probate court allowing an annual account which is not appealed from is held to be conclusive. The rule is clearly stated in Nowland v. Rice's Estate,138 Mich. 146, in these words: 'The order of the probate court allowing the first account being unappealed from, is conclusive upon appellant. If he desired to dispute any of the findings of the court upon the items of that account, he should then have appealed. He cannot reopen it 12 years after it has been adjudicated, upon the assumption that it was erroneous. Parties interested in the estate had a right to assume that the account as allowed was correct, and to rely upon the order of the court as final.' "

To the same effect, see, also, In re Chittick's Estate,286 Mich. 124.

The agreed statement of facts embodied in this record contains the following: "The sales material to the issue (i.e., wrongful investment of guardianship funds) are evidenced in two deeds as follows;" and here are set forth in the record three investments of guardianship funds, one of which is the investment in the so-called "Buffin property." This is the investment on which a substantial loss was sustained approximately 10 years after the guardian made the investment by reason of a compromise settlement authorized by Probate Judge Dalton, September 10, 1935; and this order authorizing the compromise is one of the orders strenuously assailed by appellants on the ground the probate judge was Mr. McKay's brother-in-law, appellants asserting the order for that reason was void. But on all controverted matters pertaining to the guardian's investment in the so-called "Buffin property" appellants are confronted with the undisputed record that this investment was approved by Probate Judge Higbee on April 26, 1926, when he entered the order allowing the guardian's first annual account. Plaintiffs have offered no testimony tending to establish that in securing the allowance of his first annual account defendant Joseph Kurant either by fraudulent misrepresentation or fraudulent concealment induced Judge Higbee to enter the order of allowance. Nor is there testimony that Probate Judge Higbee in making that order was misled or deceived by either of the other defendants to this suit. It follows that at least as to the guardian's investment in the so-called "Buffin property," plaintiffs are barred of relief on the ground of res judicata.

And it might well be urged that the subsequent investments of like character and under like circumstances by the guardian were at least impliedly authorized by the allowance of the guardian's first annual account which disclosed to the court that already all of the guardianship funds, with the exception of $204.92 deposited in a savings account, had been invested in land contracts.

The record as to the allowance of the guardian's final account is, we think, likewise barren of testimony of fraudulent misrepresentation or fraudulent concealment chargeable to any of the defendants. We are mindful in this particular appellants urge that the guardian's petition, in consequence of which his final account was allowed and he and his surety were discharged, was so misleading and lacking in details it sustains appellants' contention that the guardian was guilty of fraudulent misrepresentation or at least of fraudulent concealment through which the order was obtained; and that the administrator in giving a receipt of like character to the guardian for the assets of the estate and consenting to the guardian's discharge was a party to the fraudulent misconduct. Under the record this contention is not tenable; but instead the record conclusively shows that the probate judge at that time was advised in detail as to the investments into which the estate's funds had gone.

In this particular we note the following undisputed facts: The guardian filed his final account in the probate court October 1, 1930. While this account was allowed on the 7th day of November, 1930, he was not discharged until the 27th day of January, 1931. In the meantime and on January 20, 1931, the administrator receipted for the assets of the estate and consented to the discharge of the guardian. But prior to the discharge of the guardian and his surety, and on January 22, 1931, the administrator filed with the probate court a detailed inventory of the assets of the Svitojus estate, which we now quote in detail:

"A true and perfect inventory of all goods, chattels, rights and credits of said estate, to-wit:

"This inventory dates as of October 1, 1930, at the time that Mr. Joseph Kurant, Guardian of Joseph Swetojus, mentally incompetent, filed his final account in the estate of the mentally incompetent Swetojus.

"Due from Joseph Bartkus on land cont- ract, house and lot at 1332 Muske- gon avenue, N.W. $ 6,388.59

"Due on land contract from Ernest Buffin house and lot at 156 Straight avenue, N.W. 7,832.14

"Due from Peter D. Hollander on land contract, house and lot at 2210 Genesee street, N.W. 3,636.32

"Total due on land contracts 17,857.05

"Cash on hand 178.52

"Cash by McKay check # 6578 32.47 --------- $18,068.04"

This inventory further disclosed that the property covered by the Hollander land contract was subject to a prior mortgage in the amount of $1,500; and that the property covered by the Bartkus land contract was subject to a prior mortgage of $2,819.23. Hence it conclusively appears from this record that the probate judge was in possession of this detailed inventory five days prior to the discharge of the guardian and his surety, and was not misled by any fraudulent misrepresentation or fraudulent concealment with which any of these defendants are chargeable. It follows that, except for the contention of appellants that the probate judge's order was void because of his relationship to Mr. McKay, a final and conclusive adjudication was made of all issues involved in the final discharge of the guardian.

In this connection it should be noted that none of the investments of which appellants complain were made by the administrator. There is no showing that he was guilty of any misfeasance or malfeasance in the administration of his trust. Nor does the record sustain appellants' contention that the administrator was requested to institute proceedings by which alleged misappropriations by the guardian and his surety could be recovered for the estate and the administrator refused to do so. In fact the administrator was not even made a party defendant to this case until the plaintiffs filed their amended bill of complaint. Under this record plaintiffs did not establish a right to relief against defendant Smolenski. Even if it be assumed that the circuit judge was in error in dismissing the bill on the ground of res judicata, plaintiffs cannot complain as to denial of relief against Mr. Smolenski because they made no case against him. On this phase of the appeal it is worthy of note that in their brief appellants do not ask for any specific relief against defendant Smolenski. Perchance this is due to the fact that Mr. Smolenski's petition for the allowance of his final account as administrator is still pending in the probate court of Kent county. If so, it discloses another reason why Mr. Smolenski should not have been made a party defendant in plaintiffs' amended bill of complaint and sustains, as to this defendant, the circuit judge's decree dismissing the bill.

Another circumstance bearing somewhat upon this phase of the case is that subsequent to the dismissal of plaintiffs' bill of complaint in the Federal court they instituted further proceedings in the Kent county probate court. The nature of these proceedings appears from the following allegation in plaintiffs' bill of complaint in the instant case:

"That plaintiffs herein have objected to the allowance of said account and are seeking to recover the losses sustained by their decedent, Joseph Svitojus, and by his estate, by reason of the unlawful and improper investments of his funds by defendants McKay and Kurant and by reason of the failure and refusal of said John J. Smolenski seasonably to require an accounting by said Kurant and by said McKay."

The proceeding thus instituted in the probate court is still pending, decision thereof having been held in abeyance by the probate judge until final disposition of the instant case.

As to all the defendants, it is urged that dismissal of plaintiffs' bill of complaint was proper on the ground of laches. In considering this question we will assume, but do not so hold, (1) that the guardian's investments of the estate's funds were of such a character that, had proper proceedings been timely instituted, he could have been surcharged with resultant losses; and (2) that the orders of Probate Judge Dalton, because of his relationship to defendant McKay, were void, or at least voidable.

The pertinent facts bearing upon appellees' claim of laches are hereinafter stated. Joseph Svitojus died August 21, 1930. Prior to his death plaintiffs had no interest in his estate, and hence they could not be held guilty of laches except subsequent to August 21, 1930. Plaintiffs' bill of complaint was filed May 27, 1938. In the main the basic relief sought is cancellation of three orders made by Probate Judge Dalton. These three are: (1) the order of November 7, 1930, allowing the guardian's final account; (2) the order of January 27, 1931, discharging the guardian and his surety; and (3) the order of September 10, 1935, authorizing and directing a compromise in settlement of the amount due the estate on the Buffin land contract.

Since plaintiffs' claim for relief on the ground of fraudulent misconduct is, as we have above held, barred by the defense of res judicata, this phase of the record may be disregarded in considering the question of laches. Passing for the moment appellees' contention that if the noted probate court orders are void because of the relationship of the probate judge to Mr. McKay, then the questions arising are open to adjudication in the probate court; and giving consideration to appellants' claim that they did not know of this relationship until after time to appeal from the order of September 10, 1935, had expired, the following observations are pertinent. The burden of excusing seeming laches was on plaintiffs. 35 C. J. p. 237 and cases cited. While plaintiffs allege this lack of knowledge in their amended bill of complaint, the allegation was neither admitted nor denied, but plaintiffs were left to their proof. We find no proof nor admission in the record which sustains plaintiffs' alleged lack of knowledge. In this particular they have not excused delay in instituting suit.

Thus the only issues left open for possible adjudication are those excepted from Judge Raymond's decree, to-wit: (1) the propriety or legality of investments made with the Svitojus estate's funds; and (2) the validity and finality of the orders allowing the guardian's final account, and discharging him and his surety. While Judge Raymond held that the probate court had "sole jurisdiction over these remaining issues," and notwithstanding plaintiffs prior to this suit had instituted such proceedings in the probate court, they have seen fit also to seek adjudication of these issues in the instant suit in equity. Consideration of the defense of laches is material only as it pertains to these issues reserved in Judge Raymond's order of dismissal.

Incident to the defense of laches, appellees stress these facts. Immediately after Svitojus' death, plaintiffs, being residents of Lithuania, were represented by that country's consul located in Chicago. He made inquiries of defendant Smolenski in the latter's capacity as a public administrator even before he was appointed administrator of the Svitojus estate. As soon as the assets of this estate were delivered to the administrator shortly following his appointment, he mailed, on January 22, 1931, to the consul a copy of the detailed inventory of the estate's property which is above set forth. At that time there were no serious defaults in payments on the contracts held by the estate, nor were there any other circumstances at that time which should have caused the administrator to be apprehensive of holding these contracts as assets of the estate. He testified concerning the balance then unpaid on these contracts: "It was cash so far as I was concerned." Very soon after the administrator was appointed, the Lithuanian consul and his secretary came to Grand Rapids and investigated in detail. Thereafter the consul or his agents came repeatedly to Grand Rapids and acquainted themselves with the affairs of the estate. Further, following his appointment as administrator, defendant Smolenski carried on a somewhat continuous correspondence with the consul's Chicago office. In this connection it should be noted that no claim is made by plaintiffs of deceit or fraudulent concealment on the part of the administrator, save one unjustifiable claim of such nature pertaining to a letter written to the consul prior to the time defendant Smolenski was appointed administrator, and in which letter there appears what is obviously an inadvertent misstatement of fact. At all times following his appointment, plaintiffs' representatives had the full cooperation of the administrator. A brother of the deceased, Tony Smedt, who lived in Chicago and who appears to have been in frequent contact with the Lithuanian consul concerning this estate, also seemingly had full information about the estate's affairs. He became actively interested in an attempt to close the estate; and early in 1932 this brother negotiated for a purchase of the assets of the estate for something like $8,000, but this transaction failed of consummation because of Smedt's inability to secure the necessary funds.

On January 14, 1933, the administrator mailed a copy of his final account filed in the probate court on that date to the consul in Chicago. This again gave plaintiffs' representatives detailed information of the assets and condition of the estate. This account was allowed, but the administrator was not discharged because one of plaintiffs' representatives requested the administrator to continue to look after the estate. Later, and on May 1, 1936, another final account was filed by the administrator. Hearing on the allowance of this account and discharge of the administrator was deferred at the request of one of plaintiffs' present counsel, and the hearing is still pending in the probate court.

On August 2, 1935, a petition was brought on for hearing in the probate court by which directions from the court were sought as to the advisability of salvaging something from the Buffin contract by means of a Home Owners Loan Corporation loan. The Lithuanian consul and the Chicago attorney were present at this hearing; and it appears from the record that they neither seriously objected to, nor did they consent to, this compromise of the amount due on the Buffin contract. The probate court thereupon made an order authorizing and directing the compromise whereby the estate received Home Owners Loan Corporation bonds in the approximate amount of $3,000; but this resulted in a loss to the estate of substantially $7,000 on the Buffin contract investment. It was at this hearing that plaintiffs' representatives for the first time made an objection in the presence of the administrator to the probate court to the investments made in the land contracts long before this by the guardian, and raised the question as to the responsibility for financial loss which was then apparent. It was on this occasion that counsel representing plaintiffs suggested to the probate court the propriety of the administrator instituting proceedings against Kurant and McKay; but this suggestion was overruled by the probate judge on the ground that the only matter then before the court was the question of authorizing a compromise in settlement of the Buffin contract.

From this record it may fairly be said that during the years following Svitojus' death plaintiffs' representatives had full access to and knowledge of all the records and proceedings pertaining to the estate. The administrator had possession of the papers which disclosed all the transactions between the guardian and Mr. McKay, and no claim is made that the administrator deprived plaintiffs' representatives of access to these papers. In fact, since the death of Svitojus in 1930, and long prior thereto, the deeds by which Mr. McKay had conveyed the lands covered by the contracts to the guardian, and which specifically recited the prior mortgage liens, were on record in the office of the register of deeds for Kent county. And during the above period on two occasions the administrator upon request had made remittances from the funds of this estate in the total amount of $500 to the Lithuanian consul for the benefit of plaintiffs. While the statute which limits the bringing of an action on the bond of the surety of an executor, administrator or guardian to four years after their discharge (3 Comp. Laws 1929, § 13976, as amended by Act No. 21, Pub. Acts 1937 [Stat. Ann. 1939 Cum. Supp. § 27.605]) is not pleaded, nonetheless this statutory provision has a material bearing upon the defense of laches asserted by appellees.

As hereinbefore noted, this suit was not instituted by plaintiffs until May, 1938. In the meantime, and subsequent to full knowledge on the part of plaintiffs' representatives of the character of the investments which they now assail, the general depression and the bank holiday of 1933 had rendered many investments of the character here involved extremely hazardous, if not worthless. Two of the estate's contracts were totally lost by the foreclosure of prior mortgage liens. We do not hold that investments of the character of which plaintiffs herein complain may not be challenged, if action is timely taken. But it was not until after this estate had suffered serious losses incident to the general depression and some of its assets had been completely wiped out that plaintiffs seem to have conceived the idea of taking action by which the estate's losses could be shifted to the guardian and his surety, who had been discharged in 1931, and to the administrator who has not yet been discharged and whose doings relative to this estate are subject to the sole jurisdiction of the Kent county probate court. In view of the facts above detailed and other facts appearing in the record which have a bearing upon the knowledge plaintiffs' representatives possessed long before this suit was started, most of it since shortly after the death of Svitojus in 1930, we conclude that, as contended by appellees, plaintiffs cannot recover because of laches.

In my Brother's opinion for reversal some statements are made and inferences drawn which to me seem not to be justified by the record. In fairness it should be noted again that at the time the administrator gave his receipt to the guardian for "Thirteen Thousand Seven Hundred Thirty-eight and 81/100 dollars, in full balance of said estate" the guardian and his bondsman had not yet been discharged; and that prior to their discharge on January 27, 1931, the administrator filed with the probate court his inventory showing that the assets of the estate consisted of the vendee's interest in three land contracts; that two of them were subject to prior mortgage liens; and the third contract investment (the Buffin contract) was one that had been approved several years before by Judge Higbee. At the time the receipt was given there was no material default in contract payments, and the administrator, as he testified, considered "it was cash so far as I was concerned." It surely requires a stretch of imagination to conclude that with this full record before him the probate judge was deceived or misled when he made the order discharging the guardian and his bondsman and that defendant Smolenski was a party to a fraud thus perpetrated on the probate judge.

It is stated by Justice CHANDLER: "The status of the plaintiffs was not the same" in the Federal court as in the instant case. Conclusively they are now asserting the same claims and against the same persons as in the Federal court; and plaintiffs' rights are not greater nor on a different or sounder legal basis merely because the probate court in the meantime made an order assigning to them certain alleged assets of the estate. Contrary to my Brother's inference to that effect, these plaintiffs did not fail of relief in the Federal court on the ground that they were not proper parties plaintiff. Nor could it have been so held. Plaintiffs were the sole heirs at law of the Svitojus estate. As such they brought their Federal suit against all three of these defendants. In the Federal court plaintiffs charged Kurant and McKay with the same misconduct charged in the instant case; and also charged that: "The said Smolenski has conspired with said other defendants to prevent said losses from being recovered." Certainly in a suit so framed these plaintiffs, as sole heirs at law of the intestate Svitojus estate, were the proper and necessary parties plaintiff in the Federal court. Buchanan v. Buchanan, 75 N.J. Eq. 274 (71 A. 745, 138 Am. St. Rep. 563, 20 Ann. Cas. 91), and 22 L.R.A. [N. S.] 454, where an exhaustive note cites numerous authorities in accord with the Buchanan Case. In the latter case the syllabus reads:

"The exception to this rule (that a suit must be brought by the personal representative) arises where the personal representative of the deceased, by reason of collusion with the defendant or otherwise, is derelict in the performance of his duty, when, as in the case of a delinquent trustee, the next of kin, like the cestui que trust, may maintain the action, joining the administrator as a party defendant."

I cannot subscribe to my Brother's holding "that no one other than the administrator could take any proceedings for an accounting or recovery" in the case in the Federal court; or that prior to the probate judge's order of assignment "these plaintiffs had no legal status in any court either Federal or State." The cases cited by my Brother are not applicable where, as in the Federal case, the administrator was made a party defendant with others jointly charged with fraud, conspiracy, et cetera. In any event, plaintiffs, by having brought their suit in the Federal court and having gone to a final hearing on the merits, are estopped from now asserting they were not proper parties plaintiff; and they do not make such claim in their brief filed herein.

While it is true, as stated by Justice CHANDLER, that: "The record in this case does not contain a copy of the Federal pleadings," nonetheless sufficient of plaintiffs' bill of complaint filed in the Federal court does appear in this record to show beyond cavil that the material claims of plaintiffs were the same in the Federal court as in this court; and after a full hearing on the merits the Federal judge, as above noted, held:

"Plaintiffs have failed to establish by a fair preponderance of the evidence the charges of fraud and conspiracy enumerated * * * and with these issues eliminated no jurisdiction remains in this court."

With such a record before us on this appeal it cannot be said that the suit in the Federal court was dismissed without passing upon the merits and solely for want of jurisdiction. The Federal judge very definitely stated that the reason he denied plaintiffs relief was because they failed to establish the fraud and misconduct alleged in their bill of complaint.

The main theory upon which plaintiffs assert a claim of liability against defendant Smolenski is that he has been guilty of nonfeasance in not having brought suit against the other defendants to recover for alleged wrongful investments of the estate's funds. As noted above, Smolenski was not even made a party defendant in the original bill filed in this case, no specific relief against him is prayed in the amended bill or asked in appellants' brief in their statement of the relief sought. He is still acting as administrator of the Svitojus estate now pending in the probate court of Kent county. He is answerable to that court if guilty of nonfeasance or misfeasance. All the land contract investments of which plaintiffs now complain were made several years before Smolenski as administrator received from the guardian these contracts as assets of the Svitojus estate in 1931. It clearly appears that notwithstanding plaintiffs and their representatives had been fully advised since 1931 of the character of these investments, no demand was made that Smolenski should start suit against Kurant and McKay. As noted above, on one occasion plaintiffs' counsel in probate court suggested the propriety of such an action, but the probate judge declined to accept the suggestion, and plaintiffs' counsel accepted the court's ruling. Surely under such circumstances it would have been presumptuous for the administrator of his own motion to have assailed the three investments of which plaintiffs now complain. As to two of these land contract investments, the probate judge, with full knowledge of the prior mortgages, had accepted the guardian's final account and discharged him and his surety. As to the remaining land contract (the Buffin contract), the probate records and files disclosed that on hearing Probate Judge Higbee had approved this investment in April, 1926, over 12 years before plaintiffs filed the bill of complaint in the instant case. It is also pertinent to observe that if plaintiffs or their counsel desired such a suit started their duty was so to demand of the administrator, and if he refused to act the plaintiffs might then have brought the suit in their own behalf. 21 Am. Jur. p. 940 and numerous cases cited in note 22 L.R.A. (N.S.) 454, 458. While not squarely to the point under consideration, but as being somewhat in this field of the law, see, also, Foote v. Foote, 61 Mich. 181;Letts v. Letts, 73 Mich. 138; Snyder v. Snyder, 131 Mich. 658.

Under such circumstances plaintiff cannot now charge Smolenski with nonfeasance in consequence of his not having instituted suit against Kurant and McKay. Nor can plaintiffs in this manner escape the bar of their own laches. That plaintiffs' laches have worked a prejudice to the defendants is evidenced by the fact that in 1932 a brother of the deceased was negotiating the purchase of the estate's assets at approximately $8,000; but subsequently these assets materially shrunk in value and in part became a total loss.

It cannot be assumed that plaintiffs or their representatives did not know these land contract investments were made by the guardian until "some time in July, 1935," the date fixed by Justice CHANDLER; nor that Smolenski suppressed the facts. As to two of the contracts, conclusively plaintiffs' representatives knew of the prior mortgage liens when Smolenski filed his inventory, January 22, 1931. He mailed a copy of this inventory to plaintiffs' representative. It must have been known by all concerned that the investments were made by the guardian because they were dated subsequent to his appointment. Further, it was a known fact that nearly $12,000 of Svitojus' money was in Chicago banks when the guardian was appointed. Surely it would tax one's credulity to conclude, with all the continued activities of plaintiffs' representatives following Svitojus' death in 1930, including his brother's effort to purchase the estate's assets in 1932, that the details of each of these land contract investments were not known to all concerned; especially since the conveyances were on public record in Kent county and had been for a number of years.

Plaintiffs have been fully advised of all the material facts now before the court since shortly after the death of Joseph Svitojus on August 21, 1930. If they have a right of action now, they had one then. They did not begin this suit until May, 1938. The guardian and his bondsman were discharged in January, 1931. Dismissal of plaintiffs' bill of complaint was fully justified both on the ground of res judicata and because of laches.

The decree entered in the circuit court is affirmed, with costs to appellees.

BUSHNELL, C.J., and WIEST and BUTZEL, JJ., concurred with NORTH, J.