199 N.W. 666 | Mich. | 1924
Lead Opinion
Pending the probate of the will of Mary C. Kempf, deceased, plaintiff, who was named as executor therein, was, on September 24, 1923, appointed special administrator of her estate, under section 13822, 3 Comp. Laws 1915. Harry V. Angevine, a nephew of deceased, filed a petition on December 5, 1923, averring that he had given notice of contest of the will and that it had been certified to the circuit court for hearing, pursuant to section 14145, and asked for the appointment of a special administrator as provided for in section 14159. An order was made appointing the Security Trust Company. This was reviewed in the circuit court by mandamus, and sustained. Plaintiff here brings certiorari to review such order.
The judge of probate and the circuit judge both construed section 14145 as in effect an appeal from the probate court. Defendant's counsel rely on Newell v. Kalamazoo Circuit Judge,
The order appointing the trust company will be reversed and set aside. No costs will be allowed.
CLARK, C.J., and MCDONALD, BIRD, MOORE, STEERE, and FELLOWS, JJ., concurred with SHARPE, J.
Concurrence Opinion
I concur. There was no decree in the probate court admitting or denying probate of the will, for the contest over the allowance or disallowance thereof was certified to the circuit. The statute stays proceedings under probate sentences, orders or decrees appealed from; but permits the probate court to appoint one or more special administrators to take charge of and protect an estate, when an appeal is taken from a decree admitting or denying probate of a will. The probate court exercised undoubted power in appointing plaintiff special administrator under the provisions of the statute relating to administration. His appointment stands unrevoked by the certification of the contest of the will to the circuit court. The appointment of the Security Trust Company was a nullity. The power to so appoint under the statute relating to appeals did not arise in the absence of an appeal from the allowance or disallowance of the will. *171