222 N.W. 702 | Mich. | 1928
Plaintiffs gave notice in probate court of a contest of the will of Marion V. Reynolds, their sister. Practically all the estate was willed to charitable and religious societies outside the State. C. Oscar Strand was named executor in the will. Under Act No. 281, Pub. Acts 1923, he petitioned for *521 and was granted authority to employ counsel, obtain witnesses, and to take on the prosecution of the proceeding to establish the will. The will was admitted to probate. Plaintiffs in due season filed a notice of appeal, a surety company bond running to Strand and the devisees and legatees in the will, and the probate court made an order for service on Strand alone. In the circuit Strand moved to dismiss the appeal on the ground that he was not the adverse party; plaintiffs moved to bring in the devisees and legatees. Plaintiffs' motion was denied, and the appeal was dismissed on Strand's motion. The trial court having declined to entertain jurisdiction, we review on mandamus.
Before the enactment of the act of 1923, this court quite uniformly held that persons named as executors in wills and special administrators appointed by the probate court did not possess such an interest in the estate as to authorize them to expend money of the estate in a will contest, their duty being to conserve the estate and not to engage in a contest between heirs on the one hand and devisees and legatees on the other, in litigation which concerned them alone; and this court went so far as to treat expenditures of the money of the estate in a will contest as a dissipation of the assets of the estate.Zimmer v. Saier,
The devisees and legatees named in the will were interested parties, and it was proper to bring them into the case by notice; they being nonresidents of the State, publication would be sufficient. Strang v. Hillsdale Circuit Judge,
The writ should issue as prayed.
NORTH, C.J., and FEAD, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred. *523