Andrews v. Bassett

• Citation: 52 N.W. 743,92 Mich. 449
• Court: Supreme Court of Michigan
• Decision Date: 01 July 1892
• Parties: ANDREWS et al. v. BASSETT.

52 N.W. 743

92 Mich. 449

ANDREWS et al. v. BASSETT.

Supreme Court of Michigan

July 1, 1892

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

In the matter of the estate of Stephen Andrews, deceased. From an order of the circuit court reversing an order of the probate court upon the appeal of John Bassett, administrator of Mary Andrews, Charles B. Andrews and others, residuary legatees of Stephen Andrews, bring error. Affirmed.

Sidney T. Miller, for appellants.

Conely, Maybury & Lucking, for appellee.

MCGRATH J.

The facts in this case are fully set forth in Bassett v Durfee, 87 Mich. 167, 49 N.W. 558, which was an application for a mandamus pending this controversy and a repetition here is unnecessary. The sole question is whether an election made by the guardian for an incompetent widow to take under the statute, instead of under the will of her deceased husband, made with the consent of the probate court, is a valid election In England, formerly at least, courts of chancery had exclusive jurisdiction over the persons and estates of incompetent persons. All guardians were appointed by that court, and it alone had power to commit the person and property of such persons to the custody of guardians. Persons under guardianship were the wards of that court. The guardian was the medium through whom the court acted. Under that system the matter of election belonged to that court, and the right to elect for the ward has been recognized by repeated decisions. In most of the states, courts of probate, surrogate courts, or orphans' courts have been established, and the jurisdiction thereof fixed by constitution or statute. In some states these courts have limited powers, and the general jurisdiction has been expressly vested in courts of chancery. As, for instance, in Pennsylvania, the orphans' court is clothed with limited powers, and the constitution expressly vests "the power of a court of chancery, so far as relates to the care of the persons and estates of those who are non compos mentis" in the court of common pleas. Hence in Kennedy v. Johnston, 65 Pa. St. 454, the court held that the guardian could not, of his own motion, relinquish the provision made for the wife in the will of the husband; that the election was a judicial, and not a ministerial, act, and belonged to the court, and not to the committee; that it was the duty of the committee to apply to the court of common pleas having jurisdiction over the person and estate of the lunatic for leave to elect the dower, and, having such decree, he could then proceed to have a record of his election made in the orphans' court. The court simply held that the guardian must invoke the consent or aid of the court having jurisdiction. Under our statute, probate courts have jurisdiction, not only as to all matters relating to the settlement of estates of deceased persons, but as to the estates of minors, and all others under guardianship. That jurisdiction embraces not only the appointment of guardians, and control over their official conduct, but the care and protection of the estate of the wards. Indeed, the grant of jurisdiction to probate courts is so general and extensive under our statute that to the section conferring jurisdiction the legislature added a proviso that such grant should not be construed to deprive circuit courts in chancery of concurrent jurisdiction.

In People v. Wayne Circuit Judge, 11 Mich. 393, it is said that a very large portion of the old equity jurisdiction has been vested in these courts, and that courts of chancery have only jurisdiction of matters relating to the settlements of estates in those cases in which an adequate remedy does not exist in the probate court. Probate courts, with us, occupy the same relation to persons under guardianship as did courts of chancery under the English system. They stand in loco parentis, in the place formerly occupied by the king, then by the chancellor, then by the court of chancery. The guardian has such powers as are conferred by statute. As to other matters, he must invoke the aid or consent of the court. That jurisdiction being, under our statute, vested in the probate court, the right of election is vested in that court. State v. Ueland, 30 Minn. 277, 15 N.W. 245. In Collins v. Carman, 5 Md. 503, no renunciation by the widow, or by any one in her behalf, was made, or attempted to be made, during her life, and the court, in determining the case, wished to be understood "as not intimating an opinion upon the question whether a court of equity can or cannot make an election or renunciation for an insane widow during her life, and in proper time." In Penhallow v. Kimball, 61 N.H. 596, the court say: "This court having the powers of a court of equity in cases cognizable in such a court, and having the same protective jurisdiction over the persons and property of lunatics as the English court of chancery, may elect for the lunatic where the lunatic has the right of election. It has the power, and it is its duty, to protect those who have no lawful protector. In making such election the court is guided by considerations for the benefit of the lunatic, without regard to what the advantage may be to the heirs." Young v. Boardman, 97 Mo. 181-188, 10 S.W. 48; Van Steenwyck v. Washburn, 59 Wis. 498, 17 N.W. 289; Wright v. West, 2 Lea, 78; Smither v. Smither, 9 Bush, 230. Lewis v. Lewis, 7 Ired. 72, was placed upon the ground that the statute expressly required her dissent in open court, and upon the further ground that a court of law, which was the court where the guardian filed his petition, had no jurisdiction. In Pinkerton v. Sargent, 102 Mass. 570, it is held that the privilege of waiver is a purely personal right, and its exercise rests in her personal discretion alone; that it is not a question of mere pecuniary advantage; that the widow's knowledge of the family arrangement, the wishes of her husband, equitable considerations known and appreciated only by her, may all have weight and influence in determining her election, and that it is a privilege which cannot be regarded as a portion of her estate.

Our statute (How. St. � 5824) relating to wills provides that all dispositions of personal property by last wills and testament shall be subject to the following limitations: "If the testator shall leave surviving him a wife, the testamentary disposition shall be subject to the election of such wife to take any interest that may be given to her by the testator in his last will and testament; or, in lieu thereof, to take the sum or share that would have passed to her under the statute of distributions had the testator died intestate, until the sum shall amount to five thousand dollars, and of...