51 Mich. 29 | Mich. | 1883
Defendant, claiming to be administrator of ^he deceased wife of plaintiff, Mrs. Mary Ellen Breen, took from plaintiff a considerable amount of personal property, wbicb plaintiff thereupon replevied, but in the court below judgment of return was given for defendant, and plaintiff brings error. The only question is whether defendant showed a superior right of possession.
The case finds that Mrs. Breen was formerly the widow and sole executrix and legatee of James Moran, who died in January, 1879. That his estate is not yet closed up, and that when defendant intermeddled with the property, there was no administrator de bonis non, and that an appointment made since this controversy arose is appealed from and undetermined. Mrs. Breen left four minor children— three by her first husband and one by plaintiff — and she died intestate April 1, 1881. Defendant was nominated to the probate court of Alpena county on the petition of one Robert Black, filed May 31, 1881. No written order was «entered appointing him until May, 1882, after the trial of the suit below had begun, but letters were issued June 27, 1881. Plaintiff had made an earlier application than Black, in which he claimed to be creditor of his wife, but the probate court seems to have paid no attention to it. Black sets up his interest in the estate of Mrs. Breen as that of a brother merely, and his petition shows the existence of
Under our statute of distributions the husband of a deceased married woman is now entitled, if she dies intestate, to one-third of her personalty at all events, and to one-half if she leaves but one child or if she leaves no children but has a father, mother, brothers, sisters or then-issue. If no such blood relatives, he takes the whole estate. 'There is no individual who takes under any circumstances a larger interest than the husband. In the present case, there being four children, he and his own child together .took one-half of the property. Comp. L., § 4317, subd. 7.
The interests of Moran’s estate, whatever they may have been, were not in the hands of any successor to Mrs. Breen, •and therefore were not of any importance in determining this controversy. Here the question is between an alleged .administrator of Mrs. Breen’s estate, and her husband, who •was personally entitled to a share of it, and was lawfully possessed of it at the time of the appointment.
Since the passage of the statute creating this right in -him there can be no possible doubt of his right to be heard on the question of administration. It directly concerned him who should manage the estate in which he and his child were so largely interested. Whether he has, since the change in the law, any exclusive preference in claiming the appointment or not, this is not a record on which that question arises. But that he has a right to be heard in any controversy concerning his own property is manifest.
It was held in Gillett v. Needham 37 Mich. 143 that whatever may be the immunity of letters of administration against attacks from strangers, parties interested may always object to the want of jurisdiction in the court which issued them. And it is also clear that no one has any right to intervene, and no court can allow any one to intervene in
Without passing upon any of these questions of proced-ui’e, which could only become important by the application of some authorized person for the granting of letters, it is sufficient to say that under our statutes administration can only be granted to or on application of one or more of the persons specified in the statute itself, and as among them can only be granted in the order and under the contingency specified. The only persons having a right to letters are the persons interested as creditors and distribut-ees, and in all cases the grant must be made to some of those persons or their nominees, if competent or willing to take the trust. Comp. L. § 4379.
In this case it appeared expressly, on the face of the petition, not only that there were lawful distributees residing in the county, but that the petitioner was not even re
The judgment must be reversed and judgment rendered for plaintiff on the finding, with nominal damages, and with costs of both courts.