Cummings' Estate, In re

• Decision Date: 01 October 1958
• Docket Number: No. 43,43
• Citation: 355 Mich. 210,93 N.W.2d 881
• Parties: In the Matter of the ESTATE of Clinton C. CUMMINGS, Deceased. Walter C. CUMMINGS, Contestant and Appellant, v. Mildred I. HARRIS, Executrix of the Estate of Byron Harris, Deceased, Proponent and Appellee. ,
• Court: Michigan Supreme Court

Page 881

93 N.W.2d 881

355 Mich. 210

In the Matter of the ESTATE of Clinton C. CUMMINGS, Deceased.

Walter C. CUMMINGS, Contestant and Appellant, v. Mildred I. HARRIS, Executrix of the Estate of Byron Harris, Deceased, Proponent and Appellee.

No. 43, Oct. Term, 1958.

Supreme Court of Michigan.

Jan. 12, 1959.

E. B. Reese, Saginaw, for contestant and appellant.

Quinn & Bennett, by John B. Bennett, Chesaning, for proponent and appellee.

Before the Entire Bench.

VOELKER, Justice.

This is an appeal growing out of a will contest. The facts necessary to our decision are undisputed. The proponent was a nephew of the testator and sole beneficiary under his will. The contestant filed certain objections, averring that he was a son of the testator. Proponent raised issue in probate court on contestant's relationship to testator, and therefore on his right to contest. After hearing certain preliminary evidence on the execution of the will, further hearing was had on the sole issue of the contestant's right to contest. Both sides put in evidence on this issue (none of which is before us) and after the close of proofs and arguments the probate judge took the matter under advisement.

On February 16, 1956 the probate court entered an order holding in effect that the contestant was not the son of the decedent, Clinton C. Cummings, and was therefore not a proper party in interest under the statute to object to the allowance of the will. On February 27, 1956 the probate court entered a further order admitting the will to probate.

There was no appeal from either of these 2 orders within the 20-day period provided by law. C.L.1948, § 701.36 (Stat.Ann.1943 Rev. § 27.3178 ); Michigan Court Rule No. 74, § 1 (1945). On May 15, 1956 contestant-appellant filed a petition for a rehearing of these 2 orders in the probate court. After hearing on this petition the probate court took the matter under advisement and on August 1, 1956 entered an order denying appellant's petition for a rehearing. On August 17, 1956 appellant filed his notice of appeal from all 3 of the above-mentioned orders of the probate court, whereupon proponent-appellee appeared specially in the circuit court and moved to dismiss the appeal. On November 27, 1957 the circuit court dismissed the appeal on the grounds that there had not been a timely appeal taken from the 2 earlier orders of February 1956 and further that appellant had insufficiently shown that the probate judge had abused his discretion in denying contestant's subsequent probate petition for rehearing.

This case therefore resolves itself into 2 main issues. 1: Is one's right to appeal from an order of the probate court, which was not exercised within the named statutory period, renewed by the timely filing and subsequent denial of his petition for a rehearing? 2: Did the circuit court err in dismissing contestant's appeal from the order of the probate court denying his petition for rehearing?

The first question involves Michigan Court Rule No. 74, § 1 (1945) which says in part:

'In all counties of less than 500,000 population, appeals to the circuit court from probate court * * * shall be made in accordance with statutory provisions governing the same.' (Emphasis added.)

The controlling statute, already cited, provides in part:

'In all cases not specifically prohibited by statute, any person aggrieved by any order, sentence, decree or denial of the judge of probate, may appeal therefrom to the circuit court for the same county, by filing a notice thereof with the judge of probate, within 20 days from the date of the order, sentence or denial appealed from, giving the reason for such appeal, together with such bond as is required in section 39 of this chapter: Provided, That the probate judge may, within said 20 day period upon cause shown and without notice, extend the time for taking such appeal, not to exceed 40 days from and after the expiration of said 20 days. * * *'

Appellant urges here (as he did in circuit court) that the statute empowering probate courts to rehear cases upon petition (C.L.1948, § 701.19 [Stat.Ann.1943 Rev. § 27.3178(19)]) modifies the above statute to the extent that one need not file a claim of appeal from the original probate order within the statutory period of 20 days, but rahter may safely let that time lapse and in effect extend it by timely filing in probate court a petition for rehearing of such earlier order. He further urges that upon denial of his petition for rehearing he can appeal from both the denial of his petition for rehearing and at the same time from the original probate order or orders for which rehearing was sought, effectively bringing both before the circuit court. Stated another way, his argument is that if one timely decides and moves to petition for a rehearing in probate court within the 90 day statutory period for applying for such rehearing that the appeal period on the original order or orders for which he seeks a rehearing is held in abeyance and does not begin to run until a decision has been rendered in probate court on his petition for rehearing.

To support his theory appellant contends among other things that for this Court to hold otherwise 'would deprive litigants from using rehearing procedure. To do so would be at their peril and leave them to the sole remedy of proving that the Probate Court abused its discretion whenever such application for rehearing was denied.' Appellant further urges that the circuit court's interpretation of the statutory procedure 'creates an entrapment for the unwary.'

Appellant's arguments are spirited and undoubtedly contain some merit. The present statutes may very well create a dilemma in some situations by which even the most prudent practitutioner might find himself perplexed. In this case the procedure is not necessarily the hopeless blind alley he suggests, however, as other optional procedural routes have been provided by which he could plainly have sought to reach his goal. With no intention to be exhaustive, we suggest a few of the procedures of which appellant might have availed himself. He could have sought an extension of time in which to file his claim of appeal (C.L.1948, § 701.36 [Stat.Ann.1943 Rev. § 27.3178 (36)]), thus giving him upwards of 60 days in all to study and appraise any possible error and determine whether to take any appeal.

Again he might have filed his claim of appeal to circuit court within the 20 day period or any extended period and later, without affecting his pending claim of appeal, within the 90 day period permitted therefore have also filed in probate court his petition for rehearing. An analogous holding in a chancery case occurs in Domboorajian v. Domboorajian, 235 Mich 668, 209 N.W. 846.

He might also within one year of the original probate court order have petitioned the circuit court for leave to file a delayed appeal. C.L.1948, §§ 701.43, 701.44 (Stat.Ann.1943 Rev. §§ 27.3178 , 27.3178 ).

None of these well-trodden paths did contestant choose to follow. Rather he chose to hack a new trail and now asks us by construction to add still another remedy to the existing list, and that is our problem. It is a problem not made any easier of solution by the fact that it now appears too late for appellant to follow any other course, the year in which he once might have sought a delayed appeal now having passed. The result is that appellant's case must now stand or fall by our decision on the propriety of the course he chose to follow.

It is the declared policy in this state that estates shall be administered with all convenient dispatch. In re Thayer's Estate, ...