289 N.W. 126 | Mich. | 1939
John Horsman, widower, died intestate on November 3, 1936. He left surviving him his next of kin, a brother, Thomas B. Horsman, and three nieces, the daughters of a deceased brother, Edward Horsman. The latter also had an adopted son, Edward Horsman, Jr., who had been adopted when approximately two weeks of age. On November 4, 1936, one of the nieces, Edna Clements, filed a petition for special administrator, which was grantedex parte. Very shortly thereafter, Thomas B. Horsman, the surviving brother, filed a petition asking for his appointment as general administrator. Each of the petitions named Edward Horsman, Jr., as heir-at-law of John Horsman, deceased. According to the concise statement of proceedings and facts in the record, the latter petition was heard before a Wayne county probate judge. All of the nieces and the said Edward Horsman, Jr., were either present in person or represented by counsel. Thomas B. Horsman was appointed general administrator; no objection was made as to the status of Edward Horsman, Jr., as an heir-at-law, nor to his right to share in the estate of the deceased.
Shortly thereafter commissioners on claims were duly appointed. Two meetings of the commissioners were held at which petitioner was represented by an attorney. The debts as allowed were paid by June 1, 1937. No appeals were taken from the report of the commissioners. On June 4th an order was entered for a partial distribution of the estate, $40,000 to be paid to the brother of deceased and $10,000 to each of the children of Edward Horsman, deceased. Payments in bonds were delivered and duly receipted for by each of the heirs, including petitioner. No appeal was taken from this order of distribution, nor was there any objection raised to the right of participation *193 of Edward Horsman, Jr. On September 30, 1937, the first and final accounting of the administrator was ordered. Payments were made in the same proportion as on the partial distribution, and receipts were duly given therefor by Edward Horsman, Jr., and the three nieces, including Edith Moritz, the petitioner herein. By signing the receipt petitioner acknowledged full and complete satisfaction of all her claims in the residue of the deceased's estate. Thereafter, the administrator was discharged and his bond cancelled.
Three days before the statutory period elapsed, petitioner on September 27, 1938, filed a motion in the Wayne circuit court for leave to take a delayed appeal from the allowance of the final account entered on September 30, 1937. The petition set forth that the distribution to Edward Horsman, Jr., was improper and contrary to the laws of descent and distribution because he was an adopted rather than a blood son of Edward Horsman, the deceased brother of the decedent. Alleging that she had been ignorant of the applicable rule, petitioner stated that her delay in objecting to the distribution was due to unfamiliarity with the practice of the probate court and that she was not guilty of any negligence and had taken immediate steps to enforce her rights upon learning that the allotment to Edward Horsman, Jr., had been made under a misconception. In an additional affidavit filed by her husband, it was claimed that at the time the first partial distribution was made, petitioner asked the attorney for the administrator whether an adopted son of a deceased brother had a right to share in the estate, and she was assured that there was such right if the adoption had been regular and legal. That such conversation ever took place was denied in a counter-affidavit made by *194 the attorney. Edna Clements, a sister of petitioner, also filed a supporting affidavit alleging that she inquired of her uncle, Thomas B. Horsman, the administrator, whether Edward Horsman, Jr., was entitled to share in the estate and that she was assured by the administrator and his attorney that such was the law in Michigan. When the motion came on for hearing, the trial judge refused to allow a delayed appeal.
Including Edward Horsman, Jr., as an heir-at-law was improper, for he was a legal stranger to the estate. In Michigan it has been established that one cannot adopt an heir for another person. Van Derlyn v. Mack,
In Ernst v. Freeman's Estate,
WIEST, BUSHNELL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred.