Pratt v. Millard , 154 Mich. 112 ( 1908 )

Grant, C. J.

(after stating the facts). Upon the hearing and argument in the court below, and as well in this court, the counsel for complainant insisted that she was entitled to maintain the bill in her capacity as special administratrix. He did not and does not now claim that complainant represented herself or the heirs at law in any other capacity than as administratrix. There is no allegation in the bill that it was filed in the interest of creditors. Neither was there any offer to show that there were any creditors of the estate. An administrator, either general or special, has no interest in the real estate, and no right to the possession thereof, except when there is insufficient personal property to pay the debts and expenses of administration. O’Connor v. Boylan, 49 Mich. 209; Kellogg v. Beeson, 58 Mich. 340; Rough v. Womer, 76 Mich. 375. Under these circumstances it would have been idle ceremony to take testimony upon the merits, as no relief could have been granted.

The case is not ruled by Gray v. Eldred, 144 Mich. 23. In that case it was apparent that there might be two trials, and possibly two appeals to this court to determine the issues. In this case the statement made by the counsel in his opening showed that complainant was not entitled to a decree upon the facts stated. Under the statement, the heirs are the only ones who could maintain a bill to set aside the deed, as they are the sole parties interested. Defendant should have demurred, and thus have avoided the expense of preparation for trial. Under these circumstances, no costs will be allowed.

Decree affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.