In re the Estate of Campau

48 Mich. 236 | Mich. | 1882

Marston, J.

We shall not express any opinion at present, ■as to whether this class of eases can be appealed from the probate to the circuit court. If an appeal will lie, the issue in the circuit must be the same as in the probate court. In this case the record shows that the appellant opposed the confirmation of the sale in the probate court, and that after the sale was confirmed, he tendered in that court a bond with sufficient sureties conditioned to bid ten per cent, in excess of the amount for which the premises were sold. The appeal was afterwards taken and the effort made in the circuit was to show that the land did not bring its fair value and that another sale should be ordered. The objection-made in the probate court to a confirmation, was upon the case as it then stood, and no examination was made or attempted as to the value of the property.

The matters litigated in the circuit were not raised in the probate court at all — indeed the effect of giving such a bond does not seem to have been passed upon by that court at all-Now if the parties opposing the sale could thus, after the confirmation, file such a bond and take an appeal and thus-raise a new issue thereon, it- is very evident that difficult and serious questions might arise tending to delay and embarrass the administrator i-n a settlement of the estate. The hearing or trial in the circuit would not be as upon appeal, but would be the trial of a new issue presented for the first time in that court.

The proceedings must therefore be affirmed with costs.

The other Justices concurred.