119 Mich. 421 | Mich. | 1899
Warren Bordwell died, intestate, in December, 1897. Later an administrator of his estate was appointed. In June, 1898, the relator filed a petition in
It is claimed on the part of the heirs at law that section 6779, 2 How. Stat., gives the right of appeal in cases of this character; citing the case of Peet v. Peet, 52 Mich. 464. The question of whether the order was appeal-able was not raised or discussed in that case, and' it does not aid us in the solution of the question involved here. The question has been before this court repeatedly whether an order of the probate court making the allowances provided by subdivision 2 of section 5847 is appealable, and it has been uniformly held the order was not appealable. People, ex rel. Curtis, v. Cass Probate Judge, 35 Mich. 220; Walker v. Hull, Id. 488; Freeman v. Washtenaw Probate Judge, 79 Mich. 390; North v. Tuscola Probate Judge, 84 Mich. 69; In re Power's Estate, 92 Mich. 106; Bacon v. Kent Probate Judge, 100 Mich. 183. The statute does not in terms give the right of appeal from these allowances, and the cases hold that to so construe the statute as to give the right of appeal would deprive the widow of her support, and perhaps the support of a family of small children, at a time when they needed it most, — a result not contemplated by the statute, and not to be desired.
It is urged that, in the cases cited, there was no dispute whether the person claiming the allowance was the widow or not, and that, when the fact is disputed, there should be a right of appeal, because, if it was decided the claimant was not the widow, there would be no way to get the allowances back. Such a case cannot, in fact, often occur. When it does, doubtless a hardship would result; but not more so than where allowances are made pending divorce proceedings which are instituted by one not the wife. It is better that a hardship should occur in the rare cases where a claim is made by a person not entitled to make the claim than to make it possible to prevent the many widows whose right is unquestioned from having their allowances during the pendency of the litigation. In Lorimer v. Wayne Circuit Judge, McGrath, Mand. Cas. No. 136, the relator claimed to be the widow of Thomas Lorimer, deceased. She sought to appeal from an order refusing her an allowance out of the estate. This was refused, for the reason, among others, that the order of the probate court was not appealable. The question was again presented in Lorimer v. Wayne Circuit Judge, 116 Mich. 682, where the relator had instituted proceedings under 3 How. Stat. § 5992a et seq., to have it decided who were the heirs of the Lorimer
The order may issue dismissing the appeal, with costs of this court.