Graham v. Graham

Brooke, J.

(after stating the facts). The first ground of demurrer may be dismissed by saying that the point urged, that of multifariousness, is special rather *310 not be appealed from. Kerr v. Rupp, 144 Mich. 269 (107 N W. 1059); Case v. Longyear, 168 Mich. 484 ( 184 N. W. 459 ).

2. We think it can scarcely be claimed that the bill does not set out facts which warrant the interposition of equity. It was said by this court in Tompkins v. Hollister, 60 Mich. 470 ( 27 N. W. 651 ):

“And especially does equity take cognizance of a case where one holding confidential and fiduciary relations to another, and thereby morally and legally bound to communicate facts, conceals them for his own benefit and profit, and to the disadvantage of the other.”

See, also, Darrah v. Boyce, 62 Mich. 480 ( 29 N. W. 102 ); Harper v. Corcoran, 166 Mich. 474 ( 132 N. W. 106 ).

3. Has the complainant a full, adequate, and complete remedy at law? 3 Comp. Laws, § 9375, provides:

“When a creditor against whom the deceased had claims shall present a claim to the commissioners, the executor or administrator shall exhibit the claims of the deceased in offset to the claims of the creditor, and the commissioners shall ascertain and allow the balance against or in favor of the estate, as they shall find the same to be; but no claim barred by the statute of limitations shall be allowed by the commissioners in favor of or against the estate, as a set-off or otherwise.”

This section must be read in connection with 3 Comp. Laws, § 9383, which follows:

“Nothing in this chapter shall be construed to prevent an executor or administrator, when he shall think it necessary, from commencing and prosecuting any action against any other person, or from prosecuting any action commenced by the deceased in his lifetime, for the recovery of any debt or claim, to final judgment, or from having execution on any judgment.”

There is no doubt that the statute contemplates that wherever it is practicable, or unless there is reason to the contrary, the representative of an estate will set off claims of the estate against those of the creditor, so that a final *311 balance may be ascertained between the parties and needless litigation avoided. Green v. Eaton Probate Judge, 40 Mich. 244; Shelden v. Walbridge, 44 Mich. 251 ( 6 N. W. 681 ); Westra v. Estate of Westra, 101 Mich. 526 ( 60 N. W. 55 ).

It is equally clear that the probate court has exclusive jurisdiction over the settlement of estates of deceased, except when its remedies are inadequate or the interposition of equity is necessary for some auxiliary purpose. Nolan v. Garrison, 156 Mich. 397 ( 120 N. W. 977 ); Davis v. McCamman, 165 Mich. 287 ( 130 N. W. 691 ). It must be borne in mind that the bill in the instant case charges a joint liability on the part of the defendants to the estate. We do not think it was contemplated by the statute to compel a representative of an estate to sever a joint action for the purposes of set-off against the claim of a creditor. Suoh a course would often be difficult and sometimes impossible. The case at bar furnishes a good illustration of the difficulty attending such a course. Between the deceased and the defendants there existed a relationship somewhat resembling a partnership. The machinery of a tribunal consisting of commissioners on claims is inadequate for the purpose of properly adjusting the equities in such a relationship. Elder's Appeal, 39 Mich. 474 . Moreover, it is alleged that all the evidence of the dealings between deceased and defendants is in the possession of the defendants. The difficulty the representative of the estate would encounter in exhibiting his claim of set-off under such circumstances will be. readily appreciated.

4. It is the claim of defendants that the bill shows that complainant has already litigated the matters in question, at least as against Albert Graham, and that the whole matter as to him has been settled and adjusted.

The contrary is alleged in the bill. It is there charged (and it is admitted by the demurrer) that Albert Graham accepted the settlement of $1,100 for his claim without accounting to said estate for the moneys received and handled by himself andhis wife. We do not understand the *312 bill attacks this settlement. If in said settlement defendant made any allowance for or on account of the claims now made by the estate against him, that fact can be miade fully to appear in the chancery hearing.

5. The last ground of demurrer does not require discussion beyond what has been hereinbefore said. While, in the settlement of estates, the aid of equity may be invoked only where the remedy at law is clearly inadequate, we are of the opinion that such a case is made out by the averments of this bill of complaint as to warrant its assumption of jurisdiction.

The decree is affirmed, and defendants are allowed 20 days in which to answer.

Moore, C. J., and Steere, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J„, did not sit.