105 Mich. 303 | Mich. | 1895
Plaintiffs, as executors, brought suit upon
In 1887 the Legislature passed an act entitled—
“An act requiring judges of probate in certain cases to give notice to foreign consuls of an application for administration in the estate of deceased persons.”
This act is as follows:
“Whenever it shall appear upon application to any probate court for letters of administration, or to prove the will of any deceased person, that the heirs at law of said deceased, or any of them, are residents of a foreign country, it shall be the duty of the judge of such probate court to notify the consul resident in this State, if there be one of such foreign nation where the said heir or heirs may reside, and, if no such consul reside in this State, he shall notify the consul of such foreign nation in the city of New York, of the pending of and the day appointed for hearing such application. And such notice may be given by letter addressed to such consul, and deposited in the postoffice, with the postage prepaid thereon, at the city or village where such application was made, at least 60 days before such day of hearing, unless such heir or heirs shall file in such probate court*306 a waiver of such notice, in writing and under oath.'5, 3 How. Stat. § 6812.
The judge of probate gave no notice as required by this section. The circuit court found, as a conclusion of law7, that the probate court acquired no jurisdiction to probate the will by reason of the failure of the probate judge to give this notice. This presents the sole question upon the record.
The plaintiffs’ contentions are:
1. If the act of 1887 is to be regarded as an amendment of section 5801, it is an amendment by indirection, and prohibited by section 25, art. 4, of the Constitution, which reads:
“No law shall be revised, altered, or amended by reference to its title only, but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length."
2. It is in violation of section 20 of art. 4, which reads:
“No law shall embrace more than one object, which shall be expressed in its title.”
3. The provisions of the act are not mandatory or jurisdictional, but, if mandatory as to foreign heirs, they are not mandatory as to parties and interests within the country.
4. If the provisions be held mandatory, the failure to comply with them can be complained of by foreign heirs only.
The statute of Wisconsin is the same as section 5801, above referred to. In O’Dell v. Rogers, 44 Wis. 136, the supreme court of that state, in an able and exhaustive, opinion, has discussed the jurisdiction of probate courts, and the effect of a failure to publish the notice within the time required by the statute. In that case the publication fell short of the statutory three weeks, and it was held that the decree admitting the will to probate was valid as to all who were duly notified, or who appeared and assented to the proceedings. An infant heir was not represented upon the hearing, and it was held that she could not be charged with laches, consent, or ratification during minority. After she became of age she filed a petition in the probate court alleging want of notice of the time and place of probate, by personal service or due publication, and alleging acts of fraud to impeach subsequent proceedings of the executors, and denying the jurisdiction of the probate court, and prayed that the probate of the will, and all subsequent proceedings, be set aside. Her petition did not question the validity of the will, or its due proof, and asked relief only consistent with a valid probate. It was held that her petition and complaint operated as an assent and submission on her part to such probate and appointment. It was there said that—
*309 “The death of the testator gives to courts of probate general jurisdiction; and proof of the domicile and situation-of the estate, both the general jurisdiction of the subject-matter and jurisdiction of the particular case;’’ and “that whenever the courts, deciding upon the question of the effect, upon a decree of the court of probate, of a want of notice to persons in interest, or of their nonappearance, use the word 'void/ it is used, not in the sense of an absolute nullity, but of invalidity, and as to such persons only.”
Many authorities sustaining this proposition are there cited and commented upon.
In the present case the executors have given a bond; the probate of the will was valid as to all parties living-within the United States; the foreign heirs are the only ones who can have any interest in contesting the will, or in setting aside the probate; the executors and their bondsmen are liable for all the money collected, which must be distributed under the order and direction of the probate court; and payment by debtors to them is valid, and a complete bar to any further liability.
“From the testimony in the case, the court finds that the notes offered in evidence were executed by the defendant, Hosking, and delivered to the payee therein.
“That the said Martha D. Watson, at the time of her decease, was the owner of said notes, and that there was and is now due thereon the face amount thereof, with interest from the 22d day of July, 1887, at 7 per cent, per annum.
“That Martha D. Watson, the deceased person represented by the plaintiffs, had become and was, at the time of her decease, the owner and holder of the notes described heretofore, and was entitled to recover upon the same against the defendant.”
It thus appears that the merits of the controversy upon
It follows that tbe judgment must be reversed, and judgment entered in this Court for tbe plaintiffs, with the costs of both courts. .