Carpenter v. Harris
| Decision Date | 02 July 1883 |
| Citation | 16 N.W. 383,51 Mich. 223 |
| Court | Michigan Supreme Court |
| Parties | CARPENTER v. HARRIS. |
The act of 1881, giving possession in certain cases to executors and administrators, is not retroactive in its effect. Van Fleet v. Van Fleet, 49 Mich. 610, [S.C. 14 N.W. 566,] followed.
Where a widow dies before the will of her husband has been admitted to probate, and has made no objection otherwise, the appointment of a guardian for their minor children by such will must stand; at least, until some affirmative objection is made for the removal of the guardian so appointed.
Error to Ottawa.
Frank L. Carpenter, in pro. per., for plaintiff.
Norris & Uhl, for defendant and appellant.
This was a special proceeding to aid a guardian in resuming possession of real estate of his wards, from which he had been forcibly ousted by an administrator of their deceased mother. The case was tried below upon the supposition, on the part of defendant, that the act of 1881, giving possession in certain cases to executors and administrators, was retroactive, and the removal to this court seems to have been made in ignorance of the decision of Van Fleet v. Van Fleet, 49 Mich. 610, [S.C. 14 N.W. 566,] which had not then been published. The court below properly held that in this case the possessory rights of the heirs were superior to those of the administrator. The ouster, which was maintained in legal contemplation forcibly, cannot be legalized by matter arising after the proceeding was commenced. But as neither the showing of general nor of special guardianship in defendant contained any indication of proof of jurisdiction in the court which assumed to grant the authority, these proceedings are not of any importance.
The only really important question presented relates to the authority of complainant, for if that existed, all of the other matters cease to have force on the record as it stands. Complainant was appointed guardian of the minors by their father's will. Myron Harris, the father of these infants, made his will August 23, 1880, and died on the first of September. His wife, Miriam, who owned the land in question, died soon after, on the thirteenth of September. The will contained this clause: "I hereby nominate and appoint said Miriam Harris, and upon her death said Frank L. Carpenter, sole guardian of said minor daughters." The will also declared that the executors (of whom Carpenter was one) and the guardian should not be required to give bond. We have no doubt this covered Carpenter's guardianship.
It is claimed that inasmuch as the mother survived the father, the appointment was not valid without the consent of the...
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