Mower v. Verplanke

105 Mich. 398 | Mich. | 1895

Grant, J.

For a statement of the issue, see same case in 101 Mich. 209. A rehearing was granted upon the statement in the motion for rehearing that the point upon which the judgment was affirmed was not raised •in the'court below. '• The:point was expressly raised anÜ argued in the brief, for the appellees, and was-nóC mentioned in the brief for the appellant. We therefore assumed that the point whs raised upon the'trial. A re-examination of the record .shows that .it was n.ot, and therefore should not have been considered in the former decision. .

•' The ground upon whiéh the court below excludéd the record of the probate of the will in the county of .Ottawa was that'the petitioner .was not interested in such' will, vyithin the meaning of How-¡Stat. § 58,06, which will, be found in the former opinion.-. The petitioner represented in his petition that he was interested “as a subsequent purchaser of the estate oí the deceased.” It was not necessary for him to set forth the proofs of his interest. This case is clearly within the reasoning of Clow v. Plummer, 85 Mich. 550. The petition was sufficient to give the probate court jurisdiction, and the record was therefore admissible in evidence.

Judgment reversed, and a new trial ordered.

The other Justices concurred.