Breen v. Pangborn
| Decision Date | 13 June 1883 |
| Citation | 51 Mich. 29,16 N.W. 188 |
| Court | Michigan Supreme Court |
| Parties | BREEN v. PANGBORN. |
Under the statute of distributions the husband of a woman who dies intestate is entitled to one-third of her personalty, or to one-half if she leaves but one child, or a father, mother brothers, sisters, or their issue. No individual, under any circumstances, takes any larger interest than the husband. Comp.Laws, � 4377, subd. 7.
A husband has a right to be heard in regard to the appointment of an administrator for his wife's estate if she leaves any personalty, as he has an interest in the property.
Persons interested in the property left by an intestate can always raise the objection of any want of jurisdiction in the court which issues letters of administration; but no one can be allowed to intervene in the affairs of an estate, unless he is authorized by law to do so, or is personally interested.
Administration when letters are issued on petition to the court, can only be granted to, or on application by, one or more of the persons specified in Comp.Laws, � 4379, viz., creditors and distributees; and, as between these, only in this order, and under the contingency specified, of their being competent or willing to take the trust.
A woman died intestate, leaving a husband and four minor children. The husband was a creditor to her estate, and applied for letters of administration, but the probate court issued them to a person who was neither a creditor nor a distributee, and did so on a petition filed by the intestate's brother and setting forth on its face that there were lawful distributees residing in the county, and that the petitioner was not interested. Held, that the petition negatived the jurisdiction, and that, in the absence of reasons for disregarding the petition of the husband, the appointment made was void as against him.
Case made from Alpena.
J.D. Turnbull, for plaintiff and appellant.
J.B. Clayberg, for defendant.
Defendant, claiming to be administrator of the deceased wife of plaintiff, Mrs. Mary Ellen Breen, took from plaintiff a considerable amount of personal property, which plaintiff thereupon replevied, but in the court below judgment of return was given for defendant, and plaintiff brings error. The only question is whether defendant showed a superior right of possession. The case finds that Mrs. Breen was formerly the widow and sole executrix and legatee of James Moran, who died in January, 1879; that his estate is not yet closed up; and that when defendant intermeddled with the property there was no administrator de bonis non, and that an appointment made since this controversy arose is appealed from and undetermined. Mrs. Breen left four minor children,--three by her first husband and one by plaintiff,--and she died intestate April 1, 1881. The defendant was nominated to the probate court of Alpena county on the petition of one Robert Black, filed May 31, 1881. No written order was entered appointing him until May, 1882, after the trial of the suit below had begun, but letters were issued June 29, 1881. Plaintiff had made an earlier application than Black, in which he claimed to be a creditor of his wife, but the probate court seems to have paid no attention to it. Black sets up his interest in the estate of Mrs. Breen as that of a brother merely, and his petition shows the existence of the husband and four children, all residing in the county, of a father and mother of Mrs. Breen, and of two of her sisters. No personal notice was given to any one, and the action in the probate court seems to have been based upon some claim of publication, although the record does not show any order, or proof of publication of any order.
Under our statute of distributions the husband of a deceased married woman is now entitled, if she dies intestate, to one-third of her personalty, at all events, and to one-half if she leaves but one child, or if she leaves no children but has a father, mother, brothers, sisters, or their issue. If no such blood relatives, he takes...
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