Driver v. Union Indus. Trust & Sav. Bank

• Citation: 249 N.W. 459,264 Mich. 42
• Decision Date: 29 June 1933
• Docket Number: No. 109.,109.
• Court: Supreme Court of Michigan
• Parties: DRIVER v. UNION INDUSTRIAL TRUST & SAVINGS BANK et al.

264 Mich. 42

249 N.W. 459

DRIVER

v.UNION INDUSTRIAL TRUST & SAVINGS BANK et al.

No. 109.

Supreme Court of Michigan.

June 29, 1933.

Appeal from Circuit Court, Genesee County, in Chancery; James S. Parker, Judge.

Suit by Raymond Driver against Union Industrial Trust & Savings Bank, successor to the Union Industrial Trust Company and the Bankers Trust Company and others. From a decree dismissing plaintiff's bill of complaint, plaintiff appeals.

Affirmed by divided court.

Argued before the Full Bench.

Farley & Elliott, of Flint, for appellant.

Brownell & Gault, of Flint, for appellee.

SHARPE, Justice.

Alanson Driver departed this life at the city of Flint on April 3, 1929. The defendant Union Industrial & Savings Bank is the successor to the Bankers Trust Company, which was appointed administrator of his estate on petition of his widow, Addie Driver, in which she stated that the heirs of said deceased were herself as widow and the other individual defendants, who were brothers, nephews, and nieces of the deceased. The plaintiff, Raymond Driver, was a son of the deceased. He had left his parents' home in Toledo, Ohio, in 1910, when eighteen years of age. He joined the navy, and was discharged therefrom in 1914. He sailed on an Army Transport named the Findland in 1917-18. He had no correspondence with his parents thereafter. He first learned of his father's death in March or April, 1932. He soon after came to Flint, and found that the estate had been administered, the final account of the administrator allowed, and a determination of heirs had and distribution ordered on February 20, 1930, in which he was not included.

He filed the bill of complaint herein June 25, 1932, alleging that the proceedings taken for the distribution of the estate, except as to the share thereof of his mother, were in violation of the provisions of Act No. 205, Pub. Acts 1925, and praying that the administrator be required to account to him for the moneys unlawfully disbursed by it, and that the other defendants, who had been awarded interests in the real estate owned by the deceased, be required to quitclaim the same to him, or, in lieu thereof, that the decree might be recorded as a conveyance to him. From a decree dismissing his bill, he has taken this appeal.

The record discloses that on February 20, 1930, the judge of probate made an order determining who were the heirs of the deceased. It recites that a petition therefor had been presented to the court. This petition does not appear in the record. The order recites that ‘due notice of the hearing on said petition having been given as directed by said court.’ At the hearing thereon it appears that the widow and all of the other heirs were at that time either present or represented by attorneys.

This order contains the following: ‘The Court further finds that Raymond Driver, son of Alanson Driver, deceased has not been heard from by his parents, Adeline Driver and Alanson Driver, deceased, or by other persons most likely to hear from him were he alive, since 1917. That he was on friendly terms with his parents at that time. That correspondence had been carried on between them and the correspondence on his part suddenly ceased. That he was in the service of the United States Navy during the war and it is believed he was killed. That because more than 7 years have elapsed he is presumed to be dead.'

This finding was based upon the testimony of the widow. We quote from the ‘Stipulation of Facts': ‘At this hearing the widow testified in part that she had had four children by Mr. Driver that she knew three of them were dead, but did not know whether or not the fourth one was living, and that she had not heard from him since 1917 at which time he was just about to sail on the boat, Findland; that he was in the Navy; that he had quit corresponding; and that she had not heard from him since. That she had written the Navy Department and that they could not trace him. That the O. R. C. where he carried insurance had been unable to find him and that ‘he was just about to come home on a furlough when he was ordered to sail and he says if anything happens to me mother, you will have some insurance.’'

This was followed by a determination that the widow and the heirs above referred to ‘were the legal heirs of said deceased and entitled to inherit the real estate of which said deceased died seized.’ On the same day an order assigning the residue of said estate was made by the probate judge. It recites that it was made pursuant to a petition therefor and that the widow and heirs were present or represented by attorneys. This petition does not appear in the record. The order of assignment recites that it was made pursuant to a stipulation signed by all of the persons whom the court found to be entitled. No mention was made of the plaintiff therein.

Counsel for the plaintiff contend that the provisions of sections 16 and 17 of said Act No. 205 (Comp. Laws 1929, §§ 15639, 15640) were not complied with, and that the court was without jurisdiction to make these orders.

Section 16 provides that when a person who has been absent for seven years, and whose whereabouts are unknown, is an apparent beneficiary of a deceased person, the estate shall not be distributed until three years after the death of the decedent.

Section 17 provides that, when the question of the existence of such a beneficiary is presented to the probate court, it may, upon its own motion, frame an issue thereon and determine whether or not the apparent beneficiary is in existence, that is, living, at that time. If he determines that he is not, then the estate may be distributed notwithstanding the provisions of section 16. Unless this construction be placed upon section 17, there would seem to be no reason for its inclusion in the statute.

The proof submitted on the issue to be determined by the court must show, not only that the apparent beneficiary has ‘been absent from his or her last known place of abode for the continuous period of seven years with his or her whereabouts unknown to those persons most likely to know thereof, and who has not been heard from by such persons during said period,’ as set forth in section 16, but must warrant a finding of presumptive death. The law does not require that testimony submitted in the probate court shall be taken by a stenographer. We have quoted from the ‘Stipulation of Facts' the testimony of plaintiffs mother, on which the order made was based.

If she had had any idea at that time that plaintiff was then living, she, above all others, would have sought to protect his interest by casting doubt upon the presumption that he was dead, and, had she done so, the finding of the court would not have been made. A son, no matter how wayward, owes some duty to the parents who have reared him. Plaintiff's relations with his mother were apparently at all times friendly. He kept her advised as to his whereabouts for several years after he left her home in Toledo. In 1917 he embarked on what he led her to believe was a perilous voyage, as a result of which she might be entitled to insurance on his life. For 13 years thereafter she had had no word from him, nor had the navy department or the insurance company been able to trace him. In our opinion her testimony warranted the finding of the trial court as quoted above.

Counsel for the plaintiff contend that the provisions of section 17 requiring the framing of an issue and the appointment of a guardian ad litem were not complied with, and that the court was therefore without jurisdiction to make the order in question. While the record does not disclose that a formal issue was framed, the finding of the court shows clearly that the question which would have been presented thereby was passed upon on and decided. The omission in this respect in no way affected the jurisdiction of the court, which is a court of record.

This section also provides that when an issue is framed a guardian ad litem ‘to represent the possible absent beneficiary’ shall be appointed. This should have been done, but under the proof submitted the rights of the plaintiff were in no way affected by the omission to do so.

In Calhoun v. Cracknell, 202 Mich. 430, page 436,168 N. W. 547, 549, where a similar question was raised, this court expressed its approval of the opinion of the trial court, in which it was said: ‘The court having jurisdiction to distribute the estate and to construe the will for the purpose, the failure to appoint a guardian ad litem for the minor could be no more than an irregularity of procedure. It is fundamental that an irregularity, not jurisdictional, even though sufficient to require the vacation of a judgment on direct attack, does not affect its force when questioned in another proceeding. If the appointment were necessary, the judgment would be, not void, but merely voidable.'

This court has many times passed upon the binding effect of orders of the probate court made in the administration of estates, and has uniformly held that review may be had only in the manner provided for in the statute. Calhoun v. Cracknell, supra; Chapin v. Chapin, 229 Mich. 515, 201 N. W. 530;Thompson v. Thompson, 229 Mich. 526, 201 N. W. 533;Raseman v. Raseman, 234 Mich. 237, 208 N. W. 35;Benjamin v. Fairchild, 242 Mich. 274, 218 N. W. 663.

It is urged that a great injustice will be done to plaintiff if he be deprived of the property to which he would be entitled as an heir of his father. It would seem, however, that under the circumstances an even greater injustice would be done by requiring the trust company, which acted as administrator of his father's estate and made distribution of the personal estate as ordered by the probate court, to account to him for the money paid by it pursuant to such order.

The decree is affirmed, with costs to appellee.

CLARK, WIEST and BUTZEL, JJ., concurred with SHARPE, J.

POTTER, Justice.

Plaintiff filed a bill to set aside an order...