110 Mich. 8 | Mich. | 1896
John Edward Jenkinson, an infant, by his next friend, filed a petition for the appointment of an administrator of the estate of his grandfather, alleging that he died intestate, and that, at the time of his death, he was possessed of real and personal estate, estimated at the respective values of $50,000 and $3,000.
A- point is made that the publication was not sufficient, but it does not appear to be argued. As the appellee appeared and contested the application, she cannot be heard to complain. She filed an answer, stating, in substance, that, previous to his death, the intestate conveyed all of his property, and died penniless. It also stated that petitioner had filed a bill to set aside one or more of these conveyances. This was a sworn answer. A demurrer to this answer was filed, and the important ground is that ‘ ‘ the court cannot inquire, as a preliminary question, whether deceased had an estate, real or personal, or whether the same was legally disposed of. ” The circuit court, upon appeal, dismissed the petition, upon the ground that the pleadings and proofs did not show the existence of an estate. In this we think there was error. The case appears to be similar to In re Nugent’s Estate, 77 Mich. 500, and In re McCarty, 81 Mich. 460. See, also, Hubbell v. Blandy, 87 Mich. 212; Findlay v. Railway Co., 106 Mich. 700.
An attempt is made to break the force of appellant’s contention by the claim that, the answer being demurred to, the allegation that intestate left no estate is admitted. The logic of this position is that, although the probate court has no authority to enter into an inquiry upon this subject, or to deny the petition, upon defendant’s answer, and although, therefore, the answer was demurrable,
The order of the circuit court dismissing the appeal is reversed, with costs, and the cause remanded for further proceedings. The probate court is directed to grant letters of administration to John Jenkinson, as prayed.
