Kangas v. Lefko

119 N.W.2d 645, 369 Mich. 341, 1963 Mich. LEXIS 474

• Court: Michigan Supreme Court
• Decided: February 7, 1963
• Docket: Calendar 20, Docket 49,609
• Status: Published

Opinions

Dethmers, J.

On August 31, 1958, plaintiff was injured in a collision between Ms automobile and one owned and operated by defendant’s decedent, who was fatally injured in tbe accident and died that day. This suit against decedent’s estate is brought to recover plaintiff’s resultant damages.

This is defendant’s appeal from an order denying her motion to dismiss. The facts constituting tbe basis for the motion are as follows: Probating of decedent’s estate commenced on September 5, 1958. The probate court entered an order fixing December 2, 1958, as the date for hearing on claims. It was adjourned until December 9,1958, claims were heard, and the hearing on claims then was closed. The assets of the estate were duly distributed. On January 20, 1959, an order entered assigning the residue and the final account of the administratrix was allowed and approved. By order of the probate court dated January 30, 1959, the administratrix was discharged. On May 6; 1960, plaintiff filed in the probate court a motion to reopen the estate, together with a statement and proof of claim for the above mentioned damages. That motion was granted by the probate court on January 17, 1961. On February 7, 1961, the instant action was commenced in circuit court.

Defendant says that her motion to dismiss should have been granted because: (1) the probate court was without jurisdiction to reopen the estate and appoint her again as administratrix and hence there is no proper defendant before the court having legal capacity to be sued; (2) the probate court order reopening the estate is void under the provision of CL 1948, § 704.56 (Stat Ann 1959 Cum Supp § 27.3178 [307]); and (3) the provisions of CL 1948, § 704.56 (Stat Ann 1959 Cum Supp § 27.3178[307]), and CL 1948, § 708.18 (Stat Ann 1943 Eev § 27.3178[428]), bar plaintiff from maintaining this suit in circuit court after such reopening, for the reason that no claim therefor was filed in probate court or suit filed in circuit court during the original administration of the estate and before its closing.

It will be noted that defendant’s position is predicated on the assumption that the estate had been probated, closed, and then reopened. The record does not bear out defendant’s contention that the estate ever was closed. There was an order assigning residue, an order allowing the final account of the administratrix and an order discharging her as such. There was no provision in any of those orders nor any special order closing the estate.

In CL 1948, § 708.18 (Stat Ann 1943 Rev § 27.3178 [428]), it is provided:

“On the application of a creditor who has failed to present his claim, if made within 18 months following the time originally fixed by the court for the presentation of claims, and before such estate is closed, the judge of probate shall allow further time, not exceeding 1 month, for such creditor to present his claim.”

Here plaintiff’s statement and proof of claim was filed in probate court before the estate was closed and within 18 months following the time originally fixed by the probate court for presentation of claims. It was, therefore, entitled to be considered by the probate court and was not barred by the statute.

In this case, however, while the estate was still open, plaintiff commenced this action of trespass on the case against the fiduciary in circuit court. This is permissible, so long as decedent’s estate is not closed, under the provisions of CL 1948, § 708.22 (Stat Ann 1943 Rev § 27.3178[432]). In the case of In re Chamberlain’s Estate, 298 Mich 278, it was held that one in the position of plaintiff here has the option, under said section of the statute, to pursue his tort claim either in probate court or by filing a tort action in circuit court. None of defendant’s contentions or citations of authority in her briefs in this case obviate plaintiff’s right under that statute to maintain this suit. For example, In re Cook Estate, 366 Mich 323, is a case in which the estate had been “finally closed” and the attempt of the claimant was to cause the estate to be reopened for the presentation of a tardy claim. Suit in circuit court under CL 1948, § 708.22 (Stat Ann 1943 Rev §.27.3178 [432]), had not been attempted and the right to do so was not involved. And so in Seilnacht v. Wayne Probate Judge, 201 Mich 536, there was an order of the probate court containing, inter alia, the language “said estate closed,” and involved was a petition for “revival of the commission on claims,” not, as here, a suit in circuit court under the above statute.

Affirmed. Costs to plaintiff.

Kelly, J., concurred with Dethmers, J.