The records of this court disclose that the decedent was adjudicated an *Page 26 insane person on or about January 16, 1925, by the probate court of Kent county and that he was confined in an asylum until his death, which occurred a short time prior to October, 1930. He left as his sole heirs at law a father and mother, residents of a foreign country, Lithuania.
At the time he was adjudicated insane, he was possessed of personal property consisting of cash in the approximate amount of $14,000, the same being on deposit in various banks.
One Joseph Kurant was appointed guardian, who filed his bond as such, with Frank D. McKay as surety in the sum of $10,000. The guardian's first annual account showed cash receipts of $14,056.85, disbursements of $647.05, and an investment from said receipts of $13,204.88 in land contracts. It subsequently developed that bondsman McKay had invested this money in his own land contracts and that the lands described therein were at that time subject to mortgages in excess of $12,000 that had been placed thereon by McKay. On November 7, 1930, appellant Smolenski, then a public administrator of the State of Michigan, was, on his own petition, appointed administrator of the estate of the deceased incompetent, and on January 20, 1931, acknowledged receipt from guardian Kurant of the sum of $13,738.81 belonging to the estate of decedent. On January 22, 1931, appellant filed his inventory in the probate court of Kent county showing the amount of $18,068.04 consisting almost entirely of land contracts on hand subject to mortgages amounting to $4,319.23.
On October 20, 1930, the Lithuanian consul at Chicago, representing the heirs of decedent, wrote to appellant as public administrator for information regarding the estate of decedent and on October 22d appellant gave said consul the following reply: *Page 27
"There are no circumstances at present that need the attention of any attorney in your behalf at this time. Should any occasion arise you will be promptly notified by this office.
"The estate consists of mainly in several pieces of real estate, that the deceased sold by land contract, payments on which contracts are made monthly.
"The only known claim to date is a $500, or thereabouts, funeral bill, which was arranged by the brother of the deceased, to which I as administrator have no objection."
The statement in appellant's letter, "The estate consists of mainly in several pieces of real estate, that the deceased sold by land contract," was absolutely false. If it was through error that this statement was made, it was never corrected by appellant, and the truth was not discovered by heirs of the decedent until some years later.
On May 1, 1936, appellant administrator filed his final account in the probate court of Kent county showing a balance in his hands of cash in the sum of $2,556.29 after payment of all just debts, funeral expenses and expenses of administration.
On August 12, 1938, Hon. Clark E. Higbee, one of the probate judges in and for the county of Kent, in acting upon the allowance of said account, made the following findings:
"3. That the estate of Joseph Svitojus, deceased, has been fully administered and is ready for distribution except for the determination of the alleged liability of said Smolenski, Kurant and McKay, and the question of certain fees and expenses claimed by counsel for the administrator and by counsel for said petitioners. * * *
"5. That petitioners (father and mother of decedent) are the sole heirs at law of said deceased and are the lawful owners of all assets of said estate *Page 28 subject to the payment of such claims for legal services and administration expenses, if any, as may be allowed by any court of competent jurisdiction.
"6. That sufficient funds are in the hands of John J. Smolenski, administrator, to satisfy all unsatisfied claims."
Upon such findings, the probate judge made an order which included the following:
"3. That the funds of said deceased now remaining in the hands of said John J. Smolenski, administrator, continue to be held by him subject to the order or orders of any court of competent jurisdiction and disbursed by him in accordance with such order or orders."
For full substantiation of the foregoing statement of facts, see Svitojus v. Kurant, 293 Mich. 291, and the record on file with this court in said cause.
It will be noted that, according to the order of Judge Higbee above referred to, the funds of said estate should remain in the hands of the appellant subject to the order or orders of any court of competent jurisdiction and be disbursed by him in accordance with such order or orders.
The probate court of Kent county is a court of competent jurisdiction and the only court authorized by law to make orders in connection with the administration of estates of deceased persons.
It is inconceivable for any one to believe that there are not funds in the hands of appellant more than sufficient to meet expenses of administration of the estate since the order of Judge Higbee and to pay the paltry sum directed to be paid to the attorney for the sole heirs at law of decedent to cover some of the expenses incurred by said heirs in the conduct of litigation heretofore had to enforce a remedy against those responsible for the misuse of the funds and the mismanagement of this estate. *Page 29
We may call the order of Judge Higbee appealed from in the instant case, "An order to pay some of the expenses of litigation incurred by the heirs at law," "Advancement of funds to the heirs of decedent," or "Partial distribution of the estate of decedent," but the result is the same. It is in effect an order of the court directing the administrator to make a partial distribution of the estate of the deceased person, and such an order is contemplated by the statute. 3 Comp Laws 1929, § 15728 (Stat. Ann. § 27.2893); In reMcNamara's Estate, 167 Mich. 406. The order did not provide for payment to the attorney of the heirs of a sum to reimburse him for expenses of litigation on their behalf, but was an order to pay to said attorney for said heirs the sum of $200.05 to be disbursed by said attorney for the items set forth in said order which were obligations of the sole heirs of said decedent incurred by them in the litigation above referred to.
The probate court may in its discretion make an order for partial distribution of an estate, and certainly in this instance there was no abuse of such discretion.
It is high time that some one other than McKay and Smolenski should receive some portion of this $14,000 estate, and we find that the court below did not commit error in dismissing the appeal of appellant from the order of the probate court authorizing a small payment for the benefit of the heirs of the deceased person.
This appeal is in our judgment most vexatious. It is without merit and should be dismissed with costs to appellee, and in addition, appellee should recover against appellant the sum of $100 for vexatious appeal. *Page 30