Detroit Bar Ass'n v. Union Guardian Trust Co., 5.

• Decision Date: 03 October 1938
• Docket Number: No. 5.,5.
• Citation: 282 Mich. 707,281 N.W. 432
• Parties: DETROIT BAR ASS'N et al. v. UNION GUARDIAN TRUST CO.
• Court: Michigan Supreme Court

282 Mich. 707

281 N.W. 432

DETROIT BAR ASS'N et al.

v.UNION GUARDIAN TRUST CO.

No. 5.

Supreme Court of Michigan.

Oct. 3, 1938.

On motion for reconsideration of denial of motion for rehearing.

Motion for rehearing denied.

For former opinion, see 282 Mich. 216, 276 N.W. 365.

Appeal from Circuit Court, Wayne County, in Chancery; Allan Campbell, judge.

Argued before the Entire Bench.

George E. Brand, Ben O. Shepherd, and Ezra H. Frye, all of Detroit, for plaintiffs.

Shaeffer & Dahling, Butzel, Eaman, Long, Gust & Bills, Harold B. Desenberg, and Clayton C. Purdy, all of Detroit, for defendants.

PER CURIAM.

Plaintiffs and appellants have petitioned for reconsideration of denial of their motion for rehearing. The attorneys for the respective parties ahve filed briefs and have made oral arguments before the court. After due consideration, we adhere to our former denial of a rehearing; however, in this connection we have again given consideration to certain phases of the appeal because, as appellants point out, the first question hereinafter considered was not covered in our original opinion (282 Mich. 216, 276 N.W. 365); and also because of appellants' contention that unless it is clarified our former opinion may be misconstrued.

First. Appellants complain that our original opinion does not determine the right of a corporate fiduciary to have its lay employees ‘draft probate papers and conduct probate court proceedings.’ We might well decline to give consideration to the above for the reason that this specific question is not embodied in the issues presented by appellants' original brief. Instead the right of the corporate fiduciary's employees to render service of the character above noted was presented to this court without discrimination as to whether such employees were layman or licensed attorneys. Further this specific question is not covered by the prayer for relief in the bill of complaint, it is not mentioned in the decree entered in the circuit court, nor is it in any of the three issues (quoted in original opinion) which counsel for the respective parties stipulated were the issues presented to the trial court for adjudication. On appeal from such a decree and under such a record it is scarcely to be expected that this court would undertake to adjudicate the issue now urged. Notwithstanding the noted condition of the record on this appeal, in part because the question was embodied in appellants' original application for rehearing and in part because it is a matter of public concern, we now make disposition of this additional issue. As above noted appellants seek decision of whether a lay employee of a corporate fiduciary may (1) ‘draft probate papers' and/or (2) ‘conduct probate court proceedings.’

By stipulation of the attoneys for the respective parties the decree entered in the trial court and affirmed in this court expressly provided that the defendant trust company was enjoined from ‘drafting, or having drafted for others by its attoneys or attorney or others selected or paid by it therefor, any [will] * * * or proposed form or outline thereof intended for individual use.’ 282 Mich. 223, 276 N.W. 369. It cannot be more definitely adjudicated that the corporate fiduciary may not through its lay or lawyer employees draft wills.

Now we have the question whether such lay employees may draft ‘probate papers,’ obviously meaning petitions, orders, etc., to be filed in probate court. So far as the mere mechanical drafting of such instruments or the diction used therein is concerned, we know of no reason justified in law in consequence of which it should be held that a lawyer in his office may employ a law clerk or a stenographer who, having the ability, is entrusted with the drafting of papers of this character; and on the other hand holding that a trust company empowered by statute to act as a fiduciary is barred from so using such employees. But when such papers are filed in or presented to the probate court or other court of record by a corporate fiduciary, they must be under the name and by the authority of one licensed to practice law. Thereupon the attorney becomes responsible for such papers in the same manner as if he had drafted them in person. He makes the draftsmanship his own. It seems unnecessary to add that in any judicial proceeding with which the...