206 Mich. 107 | Mich. | 1919
This case is a continuation of the controversy between heirs of Bridget Delia Broffee, which first came to this court in Broffee v. LeFils, 183 Mich. 100. That was an action of ejectment brought by Irene Lulu Broffee, a granddaughter of Mrs. Broffee, by her next friend, against Anna M. LeFils and Ella B. Kelly, daughters of Mrs. Broffee, and their tenants, for the recovery of her interest as heir-at-law in certain premises located in Grand Rapids. A reference to the report of that case will disclose the facts in detail, together with the instrument, there and here involved. In that case defendants made their defense upon the theory that they had acquired title by virtue of the instrument there set forth, which is in form a deed. This court there held that there was not sufficient evidence of delivery of the deed and that the construction of the instrument was for the court, and that the question of Mrs. Broffee’s intent was improperly left to the jury. We therefore reversed the case and granted a new trial.
Thereafter Mrs. Le Fils and Mrs. Kelly offered the instrument for probate as a will and it was admitted. Irene Lulu Broffee, by her guardian, Elsie I M. Curtis, appealed to the Kent circuit court from |
“(1) Jurisdiction and powers of probate courts, and probate proceedings.
“(2) Election of remedies and day-in-court.
“(3) Execution of wills.
“(4) Juridical'abuse of counsel, etc.”
The petition for admission of the instrument to probate was sworn to before a notary public of Douglas county, Nebraska. There was no certificate of a court of record of that county to the effect that he was a notary public. This was not made a ground of appeal from the order of the probate court and the trial judge correctly held that this objection to the proceedings, was not available.
We do not agree with contestant’s counsel that the determination of the probate court in the original proceedings there that Mrs. Broffee died intestate is: a bar to this proceeding, and forecloses that court from entertaining a petition for the probate of a will. Nor do we agree that proponents, by ineffectually claiming that the instrument' was a deed, elected a remedy and thereby are prevented or estopped from insisting that it is a will if such is its legal purport and effect. In re Butts’ Estate, 173 Mich. 504, the case most strongly relied upon by contestant’s counsel, is not in point. This, court there had before it the question of whether a probate court, having admitted to probate an instrument, as and for the last will of a deceased person, could subsequently vacate such order and admit as such last will an instrument of later date. The general rule of other jurisdictions
“If, after the granting of letters, of administration by any probate court, on the estate of any deceased person, as if he had died intestate, a will of such deceased person shall be duly proved and allowed by such court, the first administration shall, by decree of said court, be revoked, and the powers of the administrator shall cease, and he shall thereupon surrender his letters of administration into the probate court, and render an account of his administration, within such time as the court shall direct.”
The instant case falls within this statute. Where a will has 'been- admitted to probate there is no statutory authority or common law power in the probate court to admit another will to probate. Where the estate is administered as intestate there is statutory authority for the later probating of a will.
We do not perceive in what manner these proponents have elected a remedy or estopped themselves from propounding this instrument as a will. Where one having two or more inconsistent remedies deliberately selects one, courts have quite uniformly held that he was estopped from asserting others. This rule, however, does not apply to a mistaken remedy. But in the instant case these proponents in defending an action of ejectment claimed title to the land under
The instrument contained the following clause:
“It is hereby expressly understood that this deed is not to be delivered or become operative except in case of the death of the party of the first part.”
This court has frequently held that language of like purport made the instrument testamentary in character and if executed with the formalities required by the statute authorized its admission to probate as a will although in form a deed. Lautenshlager v. Lautenshlager, 80 Mich. 285; In re Dowell’s Estate, 152 Mich. 194; Lincoln v. Felt, 132 Mich. 49; Leonard v. Leonard, 145 Mich. 563; Moody v. Macomber, 159 Mich. 657 (134 Am. St. Rep. 755). The testimony of Mr. Tucker, the scrivener who drew the instrument, tends to establish that all the formalities of due execution were observed. The other witness was deceased. As against this is the testimony of contestant’s counsel tending to discredit the testimony given by Mr. Tucker. The jury under a carefully prepared charge found for the proponents. We are not prepared to disagree with their conclusion.
Complaint is made of the treatment of contestant’s counsel by the trial judge and it is insisted that contestant’s case was prejudiced thereby. Many pages of the record are taken up with colloquy between court and counsel. From the very beginning of the trial