179 Mich. 567 | Mich. | 1914
Acting under authority of Act No. 253, Public Acts of 1899 (4 How. Stat. [2d Ed.] §10710), the probate court of Wayne county made two orders appointing trustees to administer the estate of Charles Erdman, deceased, in accordance with the last will and testament of said deceased. Two persons beneficially interested in the estate appealed from these Orders to the circuit court for the county of Wayne, where they were affirmed. The appellants thereupon sued .out a writ of error to the circuit court and have thus brought the record of the proceedings before us. No motion to dismiss the writ of error was made, but in the brief for the appellee it is, and at the hearing it was, urged that error does not lie to review the orders of the circuit court.
The statute (section 42) gives aggrieved parties the right to appeal to the circuit court from orders of the probate court. It gives no right of appeal to this
It is manifest that the orders in question were made
The writ of error should be and is dismissed, with costs to appellee; but, inasmuch as the cause has been heard, we express the opinion that the probate court acted within its jurisdiction, and regularly, in making the orders in question.
The probate court, in making the orders in question, did not vacate its own order previously made. Four trustees were named by the testator, first as executors, then as trustees. It was proper, upon closing the estate, to assign the residue to the persons so named, as trustees; but they could accept the trust and perform the duties of trustee only after filing the required bond. They did not file it. This was by all parties regarded as a resignation of the testamentary trusteeship. Thereupon appellants, as well as Mrs. Erdman, cbnceiving and in effect confessing that there were and had been no trustees, and that trustees ought to be appointed by the court, petitioned the court to make the appointment. The court, in its discretion, ap
Under the circumstances, it was not an abuse of discretion, especially when the attitude of appellants was considered, to give the management of this fund to a separate trustee.