
    Sarah J. Atwood v. William Frost.
    
      Contribution by devisees to pay debts due from testator’s estate, if enforced in Probate Court, must be by execution — Consent of executor to possession of devisees, not essential to such, enforcement.
    
    1. Where the devisees of a deceased person have taken possession of the .devised estate, before their liability to contribute towards the debts due from the estate is determined, under sections 5816 to 5820, How. Stat., such contributions, if enforced in probate court, must be by-execution; and a sale of real estate, under license from the probate-court, to pay said debts, as also such license, is void.
    2. The consent of the executor, to such possession, is not required by the statute cited and is not essential to action by the probate court thereunder.
    Error to Kalamazoo. (Mills, J.)
    Argued January 14, 1886.
    Decided January 27, 1886.
    Ejectment. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion and in the same case as reported in SI Mich. 360.
    
      H. F. Severens, for appellant:
    The law of this State makes all the estate of a deceased person, a fund, liable to be sold for thé payment of his debts and the expenses of administration, and prescribes the methods by which the executor may sell and convert the property, as assets for that purpose. It has further provided that the executor may relinquish to the heir or devisee, pending the settlement of the estate, such parts of the property as he may' deem prudent, under the circumstances of the estate, and such relinquishment is equivalent to a preliminary partition or distribution of the estate, pro tanto, and is in anticipation of the partition or distribution which would otherwise take, place on the final settlement of the estate : Campau v. Campau, 19 Mich. 116; Dickison v. Reynolds, 48 Mich. 158.
    The statute contemplates, by this relinquishment, some definite act and purpose on the part of the executor, and the mere continuance in possession of real estate of the testator, by the heir or devisee, which may have been taken before the appointment of the executor, or afterwards by his mere suffrance, or prior to the statute giving the executor the light of possession, would not be the relinquishment meant by the statute.
    If this statutory relinquishment were such as would be implied from mere possession by the heir or devisee, the effect would be to convert, in the great proportion of estates, the whole mode of proceedings from the ordinary probate sale into an execution sale, and the consequence would be far reaching, and disastrous to multitudes of titles resting on probate sales in this State. I do not suppose that in its former decision, in this case (51 Mich. 360), this Court intended to assert a contrary doctrine from that stated. The record, as then made up, raised the necessary implication of fact that the executor had relinquished the land devised to the devisee, and so construing it, the court held that the only way to reach it, was by assessing it for contribution and sale on execution. In the present record, this decisive fact is expressly found the other way. There has never been any such turning over or relinquishment and no possession different from that which ordinarily takes place.
    The claim that the sale took place on the assessment order of August 2, 1880, hence should have been made on execution, has no foundation in fact. The sale professed to be in virtue of the license granted December 15,1879, and all the proceedings were in accord with the provisions of law governing sales under licenses. True, the assessment proceedings, such as they were, took place, but if the facts were as upon this record they appear to have been, it is more than doubtful whether those proceedings had any validity whatever. The facts did not exist which made such a proceeding proper or lawful, and an inspection of the petition will show that it entirely failed to set forth such facts as would lay the foundation of any power in the court to make such an order. .But, independently of all this, what the court in fact ordered, was, that if the assessments were not paid, the executor should proceed to sell under the license of December, 1879, which was no more and no less than was his power and duty without such order. What the executor did, finds ample support in the license, and this being so, what principle of law requires that what is otherwise sound and valid, should be held bad by that which is void and yet not an essential link in the chain. The useful should not fail because of the presence of that which was useless: Odgen v. Barker, 18 Johns. 87; a somewhat similar principle was acted upon in Johnstone v. Scott, 11 Mich. 232; Regents of the University v. Detroit Young Men's Society, 12 Mich. 138; there is no ground on which the plaintiff can stand and insist on interposing these assessment proceedings, as making void what was otherwise valid. Estoppels must be mutual and she claims nothing through them, but rejects them. A case, presenting a similar question, is found in Estate of Montgomery, 60 Cal. 645, which was decided in accordance with the principles stated.
    
      Dallas Boudeman, for plaintiff:
    This controversy has been settled by this Court in favor of plaintiff: Atwood v. Frost, 51 Mich. 360; when proceedings for contribution are instituted under the statute, they must continue and be carried out according to the statute, and contribution must be enforced by execution : How. Stat. §§ 5816 to 5820. It is not essential to proceedings under the statute that the devisees have taken possession of the devised estate, with the consent of the executor. The language of the statute, is “ if by his consent or otherwise,” and if posses-ion is given by consent, or by the neglect of the executor to take possession himself, contribution proceedings may be had, and when had, a sale can only be made by the executor as the statute has provided: Proctor v. Robinson, 35 Mich. 284; Eberstein v. Camp, 37 Mich. 176.
   Campbell, C. J.

This case having been once before decided, on the validity of defendant’s title under a probate sale, as reported in 51 Mich. 360, we declined to hear that question re-argued, unless upon some ground which could legally distinguish the present record from that. We find no such distinction.

It appeared there, as here, that defendant claims under a sale by an executor. Having been licensed in December, 1879, to sell lands which are claimed to cover the estate in question, the executor sold such lands of the decedent as had not been specifically devised, in March and May, 1880. He subsequently, on June 30, 1880, applied to the probate court to have the specific devisees and legatees ordered to contribute their shares of. the deficiency still remaining, and in default, to have their property sold under the previous license. On the second of August, 1880, the probate court apportioned the amounts to be contributed by the devisees, and having fixed the value of Sarah Jane Diboll’s devise, in the land in question, at $1,200, ordered her to contribute $378, and so with the others, and decreed that unless paid in twenty days, the executor should sell their lands under the license issued in December, 1879. On the thirteenth of September, 1880, the executor gave notices of sale, referring expressly to the order of August 2, 1880, as well as to the license of December, 1879. On that sale the property was sold to defendant, and subsequently confirmed, the report of confirmation referring to the notices under which the sale was made.

We held in our previous decision that the probate sale, being founded on the proceedings of August 2, 1880, was void, as the statute requires the balances contributable from devisees and legatees to be collected by execution.

It is now insisted that the present record, negatives a remark made in the former opinion, “ that the action of the executor and of the probate court assumed that the land in dispute had been delivered into the possession of Mrs. Diboll with the executor’s consent. That being so, the proceedings to compel her to*contribute must have been taken under this statute.” In the present finding it is stated, in substance, that neither Mrs. Diboll, nor her grantee, had possession under any express assent or agreement of the executor, and therefore, it is insisted, that the order of August, 1880, was void, and the sale may be regarded as made solely under the license. Neither of these suggestions has any weight.

The probate order was the ostensible basis of the sale, and the action of the probate court was had upon the assumption, to be drawn from the action of the executor himself in presenting such a petition, that the estate was in such a shape that he had a right to call on the specific devisees and legatees to contribute. There was-no law requiring such action tobe confined to cases where he had consented to the possession, and no law which made his consent, to such possession, necessary.

• But this sale must, in any event, be justified under the order in pursuance of which it was'made. Our former decision was based on the ground, that, while it may have been a valid proceeding in the outset to call for contribution, it was void so far as it authorized a sale of the lands under a license. If void for any other reason, as we do not intimate that it is, it can make no difference in favor of the sale, and cannot be thrown out of the case, when it is the real foundation of the defendant’s title. The fact of the order being void was the basis of our decision before.

There were other questions which we did not pass upon before, and do not now, because this sale was utterly void. It is much to be hoped that this controversy will not be disturbed further. The judgment must be affirmed.

Morse and Champlin, JJ., concurred.

Sherwood, J., did not sit.  