Benjamin v. Fairchild

• Decision Date: 03 April 1928
• Docket Number: No. 62.,62.
• Citation: Benjamin v. Fairchild, 242 Mich. 274, 218 N.W. 663 (Mich. 1928)
• Parties: BENJAMIN et al. v. FAIRCHILD et al.
• Court: Michigan Supreme Court

242 Mich. 274

218 N.W. 663

BENJAMIN et al.

v.FAIRCHILD et al.

No. 62.

Supreme Court of Michigan.

April 3, 1928.

Appeal from Circuit Court, Wayne County, in Chancery; Joseph H. Collins, Judge.

Suit by Agens Benjamin and others against Alice May Fairchild and others.From an adverse decree, plaintiffs appeal.Affirmed.

Argued before the Entire Bench, except FLANNIGAN, C. J.Yerkes, Simons & Goddard, of Detroit (C. Upton Shreve and Don M. Harlan, both of Detroit, of counsel), for appellants.

C. H. & G. M. Lehman, of Detroit, for appellees Fairchild and Smith.

Arthur E. Whipple, of Detroit, for appellees Bentley.

WIEST, J.

The bill herein was filed October 8, 1925, to set aside a final order of the probate court for the county of Wayne, made December 5, 1922, adjudging defendants Fairchild and Smith sole heirs at law of Andrew Turnbull, deceased, and assigning the estate to them.Plaintiffs claim that they are the heirs at law of Andrew Turnbull, deceased, and defendants Fairchild and Smith, while daughters of Turnbull, are illegitimate because their mother was never divorced from her first husband, Samuel L. Collins.The bill was dismissed on the ground that the order of the probate court was res adjudicata.Plaintiffs appealed and claim the petition for administration was false and fraudulent and, therefore, the probate court acquired no jurisdiction.No excuse is alleged or shown by plaintiffs for not appealing from the probate order if dissatisfied therewith.

Andrew Turnbull's wife was formerly Sarah Van Houghton, and in February, 1863, she was married to Samuel L. Collins.About three months after the marriage Collins deserted his wife, and a little later became a soldier in the Civil War and was not heard of again for nearly 50 years.One child was born of that marriage.In 1865, Sarah married Andrew Turnbull and lived with him until his death in 1896, a period of 31 years.Defendants Fairchild and Smith were born of that marriage.Samuel L. Collins died in 1918.After the death of Turnbull, Sarah married a Mr. Brown, with whom she lived but a short time when he died, and in April, 1921, she died.Andrew Turnbull, at his death, owned real estate then worth about $1,500.After the death of Sarah, and in April, 1921, defendant Fairchild applied for administration of the estate of her father and averred that she and her sisterSarah A. Garfield(now Smith) were the heirs at law of Andrew Turnbull.The usual probate proceedings were had.September 7, 1922, Agnes Benjamin, one of plaintiffs, filed a petition in the probate proceeding, alleging that defendants Fairchild and Smith were illegitimate children, that plaintiffs herein were the true heirs at law, and asked the probate court to determine the legal heirs of Andrew Turnbull entitled to inherit the real estate.We understand from the record that testimony was taken in the probate court.The probate court adjudged defendants Fairchild and Smith to be the only heirs at law of Andrew Turnbull, deceased, and assigned to them, in equal shares, the real estate.No appeal was taken from this adjudication.We are satisfied that ...