Belcher v. Jamison (In re Alston's Estate), 65.

• Decision Date: 31 December 1924
• Docket Number: No. 65.,65.
• Citation: Belcher v. Jamison (In re Alston's Estate), 229 Mich. 478, 201 N.W. 460 (Mich. 1924)
• Parties: In re ALSTON'S ESTATE. BELCHER v. JAMISON.
• Court: Michigan Supreme Court

229 Mich. 478

201 N.W. 460

In re ALSTON'S ESTATE.BELCHER

v.JAMISON.

No. 65.

Supreme Court of Michigan.

Dec. 31, 1924.

Certiorari to Circuit Court, Isabella County; Ray Hart, Judge.

Petition for delayed appeal from allowance of claims against estate of Delia Alston, deceased, by Blanche Belcher against Kate Jamison, claimant. Order dismissing petition, and petitioner brings certiorari. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.F. H. Dusenbury, of Mt. Pleasant, for appellant.

Frank M. Burwash, of Mt. Pleasant, for appellee.

FELLOWS, J.

Delia Alston died testate September 1, 1918, in Isabella county, and her will was in due course admitted to probate. Blanche Belcher was named as a legatee. Commissioners on claims were appointed, and Kate Jamison presented a claim which was allowed in the following language: ‘Entire estate after payment of debts and expenses.'

An unsuccessful attempt to appeal from this allowance was made by the executor. Jamison v. Isabella Circuit Judge, 217 Mich. 581, 187 N. W. 318. The estate not having been closed, Blanche Belcher filed a petition for a delayed appeal under the provisions of section 14158, C. L. 1915, which reads as follows:

‘If the petitioner shall be without the United States at the time of passing the decree or order or making the determination, he may file his petition within three months after his return, provided it be done within two years after the act complained of; but no such petition shall be allowed after the payment of the debts of the estate and the distribution thereof to the parties entitled thereto by due course of law.'

The attorney for Kate Jamison moved for various reasons to dismiss the petition, and such motion and the application for the delayed appeal were heard together. Upon such hearing petitioner relied upon the petition alone and offered no other or further proof. In opposition the probate files and the files in the case of the attempted appeal by the executor were received in evidence. The petition was dismissed on the ground that petitioner was a resident of Winnipeg, Manitoba. Canada, an alien, and for that reason not entitled to the benefit of the statute. There is sufficient in the record to sustain the finding of fact that Blanche Belcher is an alien, but the court was in error in holding as matter of law that this fact deprived her of the benefit of the statute. Mascitelli v. Union Carbide Co., 151 Mich. 693, 115 N. W. 721. This case is not cited in any of the briefs, and doubtless was not called to the attention of the trial judge. In it cases from other jurisdictions which are here relied on to sustain the holding in the trial court are considered and held to be contrary to the weight of authority. As the opinion contains a citation and consideration of numerous authorities, it will not be necessary to pursue the subject further.

This court has uniformly held that a judgment which is right will not be reversed because a wrong reason is given by the trial judge. This necessitates an examination of other grounds which were urged by the appellee in the court below and which are here repeated as grounds for sustaining the order. It is insisted that justice does not require a revision of the case. When we consider the facts set up in the petition, together with the questionable form of the allowance, we are constrained to overrule this objection.

We have noted that in the court below appellant offered no testimony and rested her case entirely on the petition. This was sworn to before a notary public of Pembine county, N. D. The certificate of the clerk of the district court of that county did not authenticate the signature of the notary public and did not show that such notary public was authorized to administer oaths under the laws of that state. It is insisted that under our statute and the former decisions of this court such affidavit could not be considered. The Judicature Act (Pub. Acts 1915, No. 314), re-enacting former statutes,...