Campbell v. Detroit Trust Co. (In re Meredith's Estate)

• Decision Date: 06 April 1936
• Docket Number: No. 44.,44.
• Citation: 275 Mich. 278,266 N.W. 351
• Parties: In re MEREDITH'S ESTATE. CAMPBELL v. DETROIT TRUST CO. et al.
• Court: Michigan Supreme Court

275 Mich. 278

266 N.W. 351

In re MEREDITH'S ESTATE.CAMPBELL

v.DETROIT TRUST CO. et al.

No. 44.

Supreme Court of Michigan.

April 6, 1936.

Proceeding in the matter of the estate of Howard Graves Meredith, deceased, by Frederick W. Campbell, for the probate of a codicil, opposed by the Detroit Trust Company and another, executors and trustees. From an order of the circuit court dismissing an appeal from an order of the probate court denying probate to the codicil, proponent appeals.

Reversed and remanded.

SHARPE, J., dissenting.Appeal from Circuit Court, Wayne County; Allan Campbell, judge.

Argued before the Entire Bench.

Robert M. Brownson, Kenneth Murray, and Paul Marco, all of Detroit, for appellant.

David H. Crowley, of Detroit (George M. Clark, of Muskegon, of counsel), for appellees.

POTTER, Justice.

Howard Graves Meredith, March 25, 1932, made and executed his last will and testament, naming Detroit Trust Company and James O. Murfin executors and trustees thereof. August 28, 1934, he executed a codicil thereto naming as executors and trustees the Detroit Trust Company, James O. Murfin, and Frederick W. Campbell. Substantially the only change in the will by the codicil was the naming of Mr. Campbell as the additional executor and trustee. Mr. Meredith died December 6, 1934. The will and codicil were before the probate court of Wayne county.

By statute, every person having the custody of the will of the deceased person must, within thirty days after knowledge of the death of the testator, deliver the same into the probate court having jurisdiction, or to the person named in the will as executor. Comp.Laws 1929, § 15531. It is then the duty of the executor or executors named in the will to inform the probate court if they will accept the trust. Comp.Laws 1929, § 15532. If the will is contested, the executor named in the will has authority to employ counsel to sustain the will. Comp.Laws 1929, § 15532. No petition by an executor or by any other person is necessary to institute probate proceedings. Comp.Laws 1929, § 15537. Comp.Laws 1929, § 15541, provides, if there is no contest of the will, the probate court may grant probate on the testimony of one subscribing witness.

No question is made as to the validity of the original will. The only question affecting the merits concerns the validity of the codicil.

Upon the hearing in the probate court upon the admission of the will and codicil to probate, Mr. Murfin, one of the executors named in the original will, testified the doctors told him Mr. Meredith was mentally incompetent to transact business when the codicil was executed, and Margaret Williams, testator's housekeeper, testified she thought Mr. Meredith knew what he was doing when the codicil was executed and ‘the doctor examined him before it was done.’

Mr. Murfin had petitioned that the will be admitted to probate. Mr. Campbell had petitioned for the admission of the codicil to probate. Mr. A. W. Sempliner was attorney for Mr. Campbell, and Mr. James O. Murfin, executor, appeared on behalf of the original will. An agreement was made between Mr. Sempliner and Mr. Murfin in open court to submit the question of the mental competency of the testator to a leading Detroit attorney. This matter was apparently taken up with Mr. Monaghan, who interviewed witnesses and concluded and found the testator did not have sufficient testamentary capacity to make and execute the codicil in question. There is no proof any testimony under oath was taken before Mr. Monaghan. June 18, 1935, Mr. William Sempliner, son of A. W. Sempliner, appeared in the probate court of Wayne county where the following occurred:

‘Mr. William Sempliner:-This is a petition for rehearing of the will and codicil of Howard G. Meredith, deceased.

‘Judge Murfin wants to express his regrets for not being here.

‘He is credited with this statement:

“The petition for probate of the codicil to the last will and testament of the deceased was filed. At the previous hearing the codicil was denied probate, no one appearing to prove it. Re-hearing was granted and by an agreement proofs were taken before Peter J. Monaghan, who filed an opinion that the deceased didn't have testamentary capacity to execute the codicil. Therefore an order denying probate to the codicil should be entered.'

‘The Court: It has been granted.

‘Mr. Sempliner: Yes. Re-hearing has been granted.

‘The Court: Order re-entered admitting will and denying codicil probate.’

An appeal was taken from the probate court to the circuit court, and August 5, 1935, an exemplification of the record of the probate court filed in the circuit court. August 26, 1935, a motion to dismiss the appeal was filed which was opposed. September 6, 1935, Mr. Campbell filed a demand for a jury trial. September 12, 1935, the appeal was dismissed upon the ground the order of the probate court appealed from was entered by consent of all parties involved, including the appellant. An appeal to this court was taken and perfected.

It is claimed the trial court erred as a matter of law and fact in dismissing the appeal; in holding the probate of the will or codicil was or could be the proper subject of common-law arbitration or submission to one other than the court; in holding the probate judge could delegate his power and duty of hearing and determining a petition for the probate of a codicil to one other than the court; in denying appellant's contention the probate of a will or codicil is a proceeding in rem which may not be made the subject of common-law arbitration or consent; in holding in effect the parties to the so-called common-law arbitration had agreed to abide by the award; in holding it was not necessary the will or codicil be proved and allowed or denied in the probate court in accordance with the statutes; in holding in effect the testamentary capacity of Howard Graves Meredith was or could be a proper subject-matter to be determined by consent without due proof thereof; in holding the so-called common-law arbitration or submission could be the basis of a valid consent order; in holding that William Sempliner, June 18, 1935, then attorney for Frederick W. Campbell, consented to the entry of the probate court order on that date and thereby precluded his client from appealing therefrom; in holding it was not necessary there be an agreement to abide by an award rendered pursuant to a common-law arbitration arrangement where the submission is by parol; in refusing to hold the order of June 18, 1935, was but a part and parcel of and predicated upon the agreement by counsel to submit the question of the testamentary capacity of Howard Graves Meredith at the time of the execution of said codicil to Peter J. Monaghan for determination; in determining the probate court order entered June 18, 1935, denying the codicil to probate was a valid consent order from which no appeal could be taken by Frederick W. Campbell, appellant; in determining disputed questions of fact framed by appellees' motion to dismiss the appeal of Frederick W. Campbell and the answer to said motion and the affidavits of Frederick W. Campbell and Abram W. Sempliner in support of said answer; and in denying appellant's demand for a jury trial of said disputed questions of fact in violation of Court Rule No. 18, § 3. These thirteen assignments of error are condensed into ten questions said by appellant to be involved.

Appellant contends the probate of a will or codicil is a proceeding in rem to which the whole world is a party, and which may not properly be made the subject of common-law arbitration or consent; it is necessary a will or codicil be proved and either allowed or denied in the probate court; a probate judge may not delegate his power and duty of hearing and determining a petition for the probate of a codicil to one other than the court; the matter of the probate of a codicil is not the proper subject of common-law arbitrationor submission to one other than the court; the testamentary capacity of Howard G. Meredith was not the proper subject-matter to be determined by consent of the parties without due proof thereof in the probate court; the submission to Peter J. Monaghan of the question of Meredith's testamentary capacity and Monaghan's opinion could not be made the basis for a valid consent order in the probate court; counsel for appellant did not consent to the entry June 18, 1935, of an order denying the codicil of Meredith to probate and preclude an appeal therefrom by Campbell; the order of the probate judge denying probate to the codicil of Meredith was a part and parcel of and predicated upon the agreement between counsel to submit the question of the testamentary capacity of Meredith to Monaghan for determination; the validity of the probate order of June 18, 1935, denying probate to Meredith's codicil, could not be conditioned upon the submission of the question of Meredith's mental competency to Peter J. Monaghan; that the entry of the order is a part of and cannot be divorced from the agreement to arbitrate or submit, which entire agreement appellant contends is void and of no effect; the circumstances connected with the entry of the order of June 18, 1935, denying the Meredith codicil probate, presented a question of fact for the jury with respect to consent or lack of consent to such entry, and appellant was entitled to a jury trial.

Appellees make a counter statement of questions involved, contending the order of the probate court of June 18, 1935, denying probate to the purported codicil, was a consent order and the arbitration was valid and binding.

The probate court derives none of its jurisdiction or power from the common law, Grady v. Hughes, 64 Mich. 540, 31 N.W. 438, but must find the warrant for all its doings in the statute, Grady v. Hughes, 64 Mich. 540, 31 N.W. 438;United States Gypsum Co. v. Circuit Judge, 150 Mich. 668, 114 N.W. 666;Nolan v. Garrison, 156 Mich. 397, 120 N.W. 977;Rodgers v....