52 N.W. 743 (Mich. 1892), Andrews v. Bassett

Citation:52 N.W. 743, 92 Mich. 449
Opinion Judge:MCGRATH, J.
Party Name:ANDREWS et al. v. BASSETT.
Attorney:[92 Mich. 450] Sidney T. Miller, for appellants. Conely, Maybury & Lucking, for appellee.
Case Date:July 01, 1892
Court:Supreme Court of Michigan
 
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Page 743

52 N.W. 743 (Mich. 1892)

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.

[92 Mich. 450] 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 [92 Mich. 451] 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. [92 Mich. 452] 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...

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