Bassett v. Durfee

• Decision Date: 28 July 1891
• Court: Michigan Supreme Court
• Parties: BASSETT v. DURFEE, Judge.

49 N.W. 558

87 Mich. 167

BASSETT v. DURFEE, Judge.

Supreme Court of Michigan

July 28, 1891

Petition of John Bassett, administrator of the estate of Mary Andrews for mandamus to Edgar O. Durfee, probate judge of Wayne county. Petition denied.

Conely, Maybury & Lucking, (A. H Wilkinson, of counsel,) for relator. Sidney T Miller, (John H. Bissell, of counsel,) for respondent.

CHAMPLIN C.J.

Stephen Andrews died July 26, 1889, leaving an estate to be administered in the county of Wayne, valued at $17,255.65, of which $13,855.65 is personal property. He left him surviving a wife named Mary Andrews, who had been incompetent mentally and sick for four years before his death. She had been under guardianship on his petition, and so remained until her death, which took place December 7, 1890. They had no children. He left a will providing that she should first be cared for out of her own estate; then, if anything was needed, out of his estate; then all personal property to go to certain relatives of his. Her estate in the hands of her guardian amounted to $3,200. She was 83 years old at the time the will was made, sick, infirm, and utterly incompetent. Had Stephen Andrews died intestate, she would have been entitled under the statute to about $7,000 of his personal estate, but, a will existing, it was necessary for her to make an election if she desired to take under the statute. How. St. �� 5824, 5825. She was incompetent personally to make the election. During the life-time of Stephen Andrews he petitioned the probate court for the appointment of a guardian over his wife, Mary Andrews, and upon such petition Lawrence W. Simmons was appointed such guardian. Andrews also named Lawrence W. Simmons as executor of his last will, which was probated September 3, 1889, and he, as such guardian, acting in the matter of the estate of Mary Andrews, did on the 13th day of November, 1889, file an election in the matter of the estate of Stephen Andrews, deceased, as follows: "State of Michigan, county of Wayne-ss. In the matter of the estate of Stephen Andrews, deceased. To Edgar O. Durfee, judge of probate for said county: I, Lawrence W. Simmons, the guardian of Mary Andrews, a mentally incompetent person, and the widow of said deceased, do hereby, in her behalf, waive the provisions made for her in and by the last will and testament of said deceased, and elect for her to take her share of the estate of said deceased provided by statute. Dated November 13th, 1889. LAWRENCE W. SIMMONS, Guardian for Mary Andrews." And thereupon the same was filed upon the same day, in the said court, in the matter of the estate of said Stephen Andrews, deceased. After the expiration of a year from the probate of the will, it was claimed that this election was of no effect; that the act of election is personal, and can be exercised by no one where the widow is incompetent; and, on the application made by the widow through her guardian to distribute the estate, the court so held, and refused to award any portion to the widow or her representatives. This order of denial was made December 1, 1889. The widow died December 7, 1889. An appeal has been taken from this denial by the widow's representatives to the circuit court. The probate court has made a formal order of distribution, dated January 25, 1890, and from this order the administrator of Mary Andrews has appealed to the circuit court.

In February, 1891, the administrator of Mary Andrews petitioned the probate court for an order...