Farris v. United States Fidelity & Guaranty Co.
Farris v. United States Fidelity & Guaranty Co.
Opinion of the Court
Two questions of first impression are presented in this appeal. The first is whether an order denying a petition to surcharge a surety on a bond is a final order appealable as a matter of right to the Court of Appeals under MCR 5.801(B)(3)(e). We answer in the affirmative.
MCR 5.801(B)(3) allows appeals of right from certain final probate court orders to this Court. These are "defined as and limited” to orders resolving any of twenty-eight different matters. We hold that the probate court’s order denying surcharge of the surety bond falls within MCR 5.801(B)(3)(e), which allows an appeal of right to this Court for matters "discharging a surety on a bond from further liability.”
The second question is more difficult. Petitioner was bilked out of the bulk of the assets contained in her guardianship account by an unscrupulous fiduciary. She claims she filed this action timely within the two-year tolling provision of MCL 600.5855; MSA 27A.5855. The respondent says her claim is barred by the four-year period of limitation contained in MCL 600.5807(1); MSA 27A.5807(1) and we agree.
The facts of this case are not disputed by the parties. On July 16, 1976, Melvin Cotton was appointed by the Wayne County Probate Court as guardian of petitioner, his niece, who was then a minor. Respondent United States Fidelity and Guaranty Company issued a fiduciary bond for Cotton in the amount of $10,000. The inventory disclosed that the estate consisted of $15,000 in life insurance proceeds. Petitioner turned eighteen years of age on November 10, 1976, and Cotton
Melvin Cotton, 8048 Carbondale, Detroit, Michigan.
United States Fidelity & Guaranty Company, 1900 West Big Beaver Road, Troy, Michigan, 48084.
Thomas Bayliss, 13700 Woodward, Suite 400, Highland Park, Michigan (Attorney for the Estate)
Katherine Farris, 8048 Carbondale, Detroit, Michigan.
There the matter languished.
MCL 600.5807(1); MSA 27A.5807(1) provides a four-year period of limitation on actions against guardians.
The acts or misrepresentations constituting fraudulent concealment of a claim must be pled. Dunmore v Babaoff, 149 Mich App 140, 147; 386 NW2d 154 (1985); Tonegatto v Budak, 112 Mich App 575, 584; 316 NW2d 262 (1982). In the instant case petitioner did not plead fraudulent concealment in her petition to surcharge the respondent’s surety bond. She merely alleged that Cotton "failed and refused and still fails and refuses to turn over to her the balance of her estate.” Petitioner is bound by the public record and could have discovered that Cotton was withholding assets from the estate simply by examining the probate court file. That file contains the inventory dated August 31, 1976, and filed December 2, 1976, showing the proceeds from two life insurance policies totaling $15,000. Notice of the suspension of the guardian was mailed to petitioner and should have put her on notice that the guardian was in violation of his duties. Petitioner cannot rely on MCL 600.5855; MSA 27A.5855 to postpone the running of the four-year period of limitation because petitioner is charged with knowledge of the
Affirmed.
The period of limitation on actions charging any surety on any bond of any executor, administrator, or guardian is four years after the discharge of the executor, administrator, or guardian.
A guardian’s authority and responsibility terminates upon the death, resignation, or removal of the guardian or upon the minor’s death, adoption, marriage, or attainment of majority but termination does not affect the guardian’s liability for prior acts nor the guardian’s obligation to account for funds and assets of a ward. Resignation of a guardian does not terminate the guardianship until it is approved by the court. A testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding.
Reference
- Full Case Name
- In re FARRIS ESTATE FARRIS v. UNITED STATES FIDELITY AND GUARANTY COMPANY
- Cited By
- 2 cases
- Status
- Published