173 Mich. 504 | Mich. | 1913
This case comes here on an appeal taken from a judgment of the circuit court of Saginaw county, overruling petitioner’s demurrer to a plea to the jurisdiction of the probate court of said county, to entertain a petition for the probation of a lost will, quashing
The petitioner, a grandson of Anna Maria Butts, deceased, filed the petition in question on October 16, 1911, in the probate court of Saginaw county, asking probation of a lost will claimed to have been made by deceased in June, 1878. Said Anna Maria Butts died in 1880, prior to April 20th of that year, on which day her son, Jacob Butts, filed a petition in said court for the probation of her last will and testament. An instrument in writing, dated April 5, 1876, was produced in evidence, and properly proven as such will. It was duly admitted to probate, and said Jacob Butts was appointed its executor. He qualified and entered upon his duties as such executor, and continued to act in that capacity until his death in 1901. Upon his death his brother, John Butts, who by said will was given a life estate in a farm formerly owned by deceased, was named as executor, and so continued until his death in 1911, following which his wife, Maria Butts, was appointed executrix, and so still continues.
Petitioner in this case is a son of said Jacob Butts, who filed the first petition, and was appointed executor in 1880. He claims in his petition that the former will made in 1876, and probated on petition of his father, had been revoked by a later will made in 1878; that neither he nor his father knew there were two wills, but labored under the misapprehension that the will then probated was the one now sought to be probated, owing to the fact that both wills gave a life estate in the land left by deceased, which was the principal part of her estate, to his uncle John Butts, and they were advised, and understood, that there could be no further distribution until his uncle’s
After this petition was filed, the contestants, being beneficiaries under the will already probated, filed a plea to the jurisdiction, reciting briefly the history of the probation of the other will substantially as already stated, alleging that in the matter of said estate the same court had long before determined that a certain instrument in writing duly presented and proven was the last will and testament of the deceased; that for the court to again act and take cognizance of this second petition would necessarily involve the setting aside of former orders of the court relating to the same estate, and would require the exercise of powers not vested in the court, and beyond its jurisdiction. At this stage of the proceedings the petitioner removed the case to the circuit court, under the statute already referred to, and a stipulation in writing was entered into between the parties, providing that, after the plea had been disposed of, either party could file such order or take such steps as to them seemed proper, following which petitioner demurred to the plea. The case was thereupon submitted to the circuit court on said petition, plea, and demurrer, and said demurrer was overruled.
The matter being presented on demurrer, it is the rule
“ We believe we have made it plain that our objection to appellant’s petition is not upon the ground of laches and we submit that the issue is this: Has a probate court jurisdiction to entertain a petition for the probate of an instrument alleged to be the last will and testament of a deceased person, where the same court, in the same matter and estate, has already adjudicated that a certain other instrument is the last will and testament of the deceased person?”
It is recognized as a general principle of law, both in England and America, that any court, whether ecclesiastical, surrogate, probate, or otherwise designated, which, acting within its jurisdiction, has admitted a will to probate, has inherent power to vacate its order or decree and revoke such probate, unless, as in a few jurisdictions, the constitutions and statutes are so framed as to deny the court such power. 40 Cyc. p. 1234. This is one of the
Petitioner contends, however, that he does not ask or seek by his petition to have the court revoke, or set aside, its former orders or judgments, and that it is not necessary to do so in order to grant the prayer of his petition; that the order admitting a will to probate is conclusive only as to its due execution. If properly proven and found to be duly executed, the lost will, as well as the former will, stands probated and established as duly executed, thus laying the foundation for invoking a court of chancery to determine between them; the probation of the will being a prerequisite to the chancery court assuming jurisdiction, inasmuch as jurisdiction to probate wills primarily rests with the probate court. We are unable to accept these conclusions. The probation of the later will of the same testatrix, in relation to the same property, by its terms revoking the former will, inevitably operates to
“That the jurisdiction hereby conferred shall not be construed to deprive the circuit court in chancery, in the proper county, of concurrent jurisdiction, as originally exercised over the same matters.” Section 651, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12099).
Under our probate system, this section, in its entirety, has been construed to give the chancery court jurisdiction only where an adequate remedy does not exist in the probate court, and to declare that in such contingency the chancery court does have jurisdiction to exercise its inherent equity powers, amongst which, peculiarly within its province, are fraud, accident, and mistake. People v. Wayne Circuit Judge, 11 Mich. 393 (83 Am. Dec. 754); Holbrook v. Campau, 22 Mich. 288; Smith v. Boyd, 127 Mich. 417 (86 N. W. 953); Nolan v. Garrison, 156 Mich. 397 (120 N. W. 977).
We are of opinion that the circuit court was correct in
The judgment is affirmed.