Bacon v. Perkins

• Decision Date: 04 May 1894
• Court: Michigan Supreme Court
• Parties: BACON v. PERKINS, Probate Judge.

58 N.W. 835

100 Mich. 183

BACON v. PERKINS, Probate Judge.

Supreme Court of Michigan

May 4, 1894

Certiorari to circuit court, Kent county; Allen C. Adsit, Judge.

Petition by Frances E. Bacon for writ of mandamus to compel Cyrus E Perkins, judge of probate of Kent county, Mich., to set aside an order of allowance to the widow of Fred A. Holcomb deceased, and to apply the amount paid her thereunder on her distributive share of the estate. There was a judgment denying the writ, and relator brings the case to the supreme court on certiorari. Affirmed.

Clark H. Gleason, for relator. Smiley, Smith &amp Stevens, for respondent.

LONG J.

Fred A Holcomb died intestate January 18, 1890. His heirs were his widow, his mother, his sister, and the children of two deceased brothers. An administrator was appointed, who duly qualified. The only estate left by the deceased was an insurance policy of $9,000, and the amount claimed thereunder was in litigation. This suit was not ended until June, 1892, when the administrator received into his hands the $9,000. The widow remarried in November, 1891, and soon after the termination of the suit she petitioned for statutory widow's allowance out of the estate at the rate of $18.75 per week. An allowance was made by the probate court to her of $15 per week from the time of her husband's death until the date of her marriage, amounting to about $1,400. The administrator paid over to her the amount thus allowed. In October, 1893, the administrator rendered a final account of his receipts and disbursements, including the payment of this amount to the widow. On the hearing of this account the relator, one of the heirs at law, objected to the item of allowance to the widow, on the ground that it was made to her after her remarriage. This objection was overruled by the probate court. This proceeding was commenced in the circuit court for Kent county by petition for mandamus to compel the judge of probate to set aside the order allowing the widow this amount, and to compel the application of the amount so paid to her upon her distributive share of the estate. The mandamus was denied in the court below, and the case comes to this court by writ of certiorari. It is claimed (1) that no legal notice was given to the administrator of the application of the widow for this statutory allowance; (2) that the amount of the allowance by the probate court was an abuse of discretion.

As to the first point raised, the probate judge returns that the administrator was notified, and was aware of the claim made by the widow for the allowance, and was given an opportunity to be heard in relation thereto, and was so heard upon such hearing, and informed the court regarding the circumstances of the widow and the estate. The respondent further returns that, upon thus conferring with the administrator, he determined that $15 per week was a reasonable allowance, and the order was thereupon made directing the administrator to pay the same; and that the administrator thereafter paid said sum in good faith, and upon the strength of such order. No appeal was taken from this allowance by the administrator or by the heirs at law.

1. We have no statute requiring written notice to be given to the administrator of the application made by the widow for the statutory allowance. In Freeman v. Probate Judge, 79 Mich. 390, 44 N.W. 856, it was held that the administrator is entitled to notice of the application of the widow for the allowance of her support pending the settlement of the estate, under How. St. � 5847, and could be heard upon such allowance, and that an order made without such notice is void. But in the present case the administrator had notice, though not in writing. He did appear, and from the returns of the probate court it is shown he was consulted by the court, and gave the court information upon which the order was based. This was sufficient to confer upon the probate court jurisdiction to act.

2. We cannot say that, under the circumstances, the sum was excessive, or that there was any abuse of discretion in making the allowance. In Freeman v. Probate Judge, supra, it was said: "It is the policy of our statutes to leave such allowance to the sound discretion of the probate judge, and the appellate courts will not interfere, except where there has been an abuse of discretion." We have no facts before us which would warrant us in saying that the amount is too large. Undoubtedly facts and circumstances were before the probate court, upon which it acted in fixing the amount, that are not presented to this court. As was said in North v. Van Tassel, 84 Mich. 69, 47 N.W. 663: "It is for the probate court to inquire into the truth of the widow's petition to determine just what allowance should be made, and the proportion each legatee should contribute towards the amount allowed. We are not called upon to decide whether the probate court fixed the amount which plaintiff should pay at too small or too great a sum. The facts were before that court, and are not present here on this record." In Re Power's Estate, 92 Mich. 107, 52 N.W. 298 an allowance of $800 was made out of an estate of $5,000, and it was said that it did not appear that there was such abuse of discretion as would justify this court in...