McDivitt v. Mapes

300 N.W. 107, 299 Mich. 329, 1941 Mich. LEXIS 468

• Court: Michigan Supreme Court
• Decided: October 6, 1941
• Docket: Docket No. 78, Calendar No. 41,604.
• Status: Published

Opinions

Wiest, J.

This is a bill in equity by the administrator de bonis non of the estate of Clarence E. Mapes, deceased, under the provisions of Act No. 288, chap. 7, § 14, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-7 [14], Stat. Ann. 1940 Cum. Supp. § 27.3178 [394]), known as the probate code, which superseded 3 Comp. Laws 1929, § 15668 (Stat. Ann. § 27.2815), to recover, in behalf of creditors, assets of the estate claimed to have come into the hands of defendant while the deceased was insolvent. By stipulation the issue of insolvency was determined as of the time of Mr. Mapes’ death in December, 1937. In May, 1934, when Mr. Mapes owed debts, now allowed against his estate, he purchased, under land contract, in the names of himself and wife, jointly, a house and lot in the city of Durand for a funeral home. The contract price was $2,000, of which $500 was paid down, and $30 to be paid monthly thereafter. Up to June, 1937, when Mr. Mapes was taken sick, he made the monthly payments and thereafter payments were made by de fendant and, in September, 1939, tbe contract price being paid, defendant received a deed from tbe vendor. It is conceded defendant paid $840 on tbe land contract. Mr. Mapes was an undertaker and, to remodel and equip tbe. premises as a funeral home, he spent considerable sums of money. No homestead right is involved.

The court found Mr. Mapes insolvent at the time of his death in December, 1937, by reason of insufficient assets in his estate, upon sale thereof, to pay debts contracted prior to the purchase of the Durand property and, in behalf of such creditors, decreed a lien upon the premises for $2,000 under a finding that such amount was expended by Mr. Mapes in the purchase and improvement of the property.

Defendant reviews by appeal and claims that, inasmuch as the inventory and appraisal of the estate showed solvency, it was not permissible to plant insolvency at the time of Mr. Mapes’ death upon subsequent deficit by reason of inability to dispose of the assets at the appraised value.

The inventory and appraisal showed an estate sufficient to pay the alleged claims, but sums realized on sales of the assets, expenses of administration, and loss in carrying on the undertaking business in the course of administration, showed insufficient funds to pay the creditors in full.

Except for the stipulation mentioned, the burden would have been upon plaintiff to show that the deceased was insolvent at the time of the purchase of the Durand property in 1934. Under the stipulation the burden was on plaintiff to show that the deceased was insolvent at the time of his death in December, 1937, and the creditors, in whose behalf suit was brought, were such creditors at the time the Durand property was purchased in May, 1934.

The true value of the assets at the time of death governs upon the question of solvency or insolvency and any lessened value thereof, occasioned by delay in the course of the administration, for obsolescence or deterioration as well as expenses or loss in the course of the administration, cannot be considered upon the subject. Loss to the estate in carrying on the undertaking business may not be considered in reduction of assets, if sufficient at the time of Mr. Mapes’ death to meet his obligations to creditors existing in May, 1934. The solvency of the deceased, as at the time of his death, is not to be made dependent upon costs of the administration of his estate or subsequent failure to realize the appraised amount, or loss occasioned by endeavors to carry on the former business of decedent. No fraudulent intent on the part of the deceased in purchasing the Durand property was charged or proven.

Mr. Mapes left a will and defendant herein was appointed executrix of the estate and served for a time,- then plaintiff herein was appointed administrator.

Under the record plaintiff failed to establish the charge that the result of taking the 1934 land contract in the names of Mr. Mapes and his wife was, by reason of insolvency of Mr. Mapes at the time of his death, in fraud of his creditors.

The decree in the circuit court is reversed and • decree will be entered in this court dismissing the bill, with costs to defendant.

Sharpe, C. J., and Bushnell, Chandler, North, Starr, and Butzel, JJ., concurred with Wiest, J.