Elliott v. Collins (In re Elliott's Estate)

• Decision Date: 03 October 1938
• Docket Number: Motion No. 428.
• Citation: 281 N.W. 330,285 Mich. 579
• Parties: In re ELLIOTT'S ESTATE. ELLIOTT v. COLLINS.
• Court: Michigan Supreme Court

285 Mich. 579

281 N.W. 330

In re ELLIOTT'S ESTATE.ELLIOTT

v.COLLINS.

Motion No. 428.

Supreme Court of Michigan.

Oct. 3, 1938.

Proceeding in the matter of the estate of Elizabeth Elliott, deceased, wherein Sidney Elliott offered an instrument for probate as the last will and testament of Elizabeth Elliott, deceased, which was contested by Martha Burbank Collins, and the contest was certified by the Probate Court to the Circuit Court. From an order denying the proponent's motion to dismiss the contest, the proponent appeals.

Order vacated and the cause remanded, with directions.

Appeal from Circuit Court, Wayne County; James E. Chenot, judge.

Argued before the Entire Bench.

Robert J. Quail, of Detroit, for appellant.

Henry C. L. Forler, of Detroit, for appellee.

BUSHNELL, Justice.

This is an appeal from an order denying proponent's motion to dismiss a will contest. The will contest was certified by the probate court to the circuit court, where trial was had before a jury, who rendered a verdict sustaining the will. Contestant appealed and the judgment entered in the circuit court was set aside and a new trial ordered. See In re Elliott's Estate, 269 Mich. 677, 257 N.W. 919. Before the second trial, both parties secured new counsel and proponent moved to dismiss the will contest on the ground that: ‘The contestant, Martha Burbank Collins, is not an interested party, as she would not share in the estate if the will were set aside, and therefore is not concerned in the outcome, and is not a proper contestant.’

Proponent attached to the motion an affidavit stating that he was married to the testatrix, Elizabeth Elliott, on July 30, 1927, at Detroit, Michigan, and that she did not leave surviving her any issue, father, mother, brother or sister or child of a brother or sister.

In opposition to this motion contestant's counsel filed an affidavit, sworn to by him, which stated that the records of the Circuit Court for the County of Wayne show that, on March 2, 1906, Sidney Elliott, the proponent, filed a bill for divorce from his first wife, Philomene Elliott; that the matter was heard in part on July 2nd and 16th, 1906, but that no disposition was made thereof, and that, while the cause was still pending, Elliott filed a bill for divorce from Philomene in the County of Burleigh, State of North Dakota. There is attached to this an affidavit of the contestant, which was filed in this court on the first appeal in opposition to a motion for the disallowance of costs. The latter affidavit questions the validity of the marriage of Sidney Elliott to the testatrix, and claims that the North Dakota decree of divorce is invalid and that, therefore, the marriage between the testatrix and proponent was null and void. The North Dakota decree was entered December 18, 1908. Upon the issues thus framed, the court denied proponent's motion to dismiss the appeal without stating any reason therefor.

Appellant claims that, under the facts recited and the statutes of this State, he is entitled to all of the property of the deceased whether or not the will is sustained. See 3 Comp.Laws 1929, § 13440 (Stat.Ann. § 26.981) and § 15726 (Stat. Ann. § 27.2891). Contestant's brief does not indicate how she would share in the estate if the will were set aside, and we assume that her theory is that, if the North Dakota divorce was invalid, the marriage between proponent and testatrix was a nullity, and then contestant would be an heir at law as ‘next of kin’. Secs. 13440 and 15726, supra.

The first question raised is whether contestant's lack of interest may be challenged by proponent's motion to dismiss.

The authorities indicate that this procedure is proper. In re Wynn's Estate, 193 Mich. 223, 159 N.W. 492, the court said [page 493]: ‘* * * we suggest that the better practice is to determine the contestant's ‘interest’ in advance of the trial. 16 Ency. P. & P. 1016. Under the present practice this can be accomplished by a motion to dismiss the appeal.'

In Re Vanden Bosch's Estate, 207 Mich. 89, 173 N.W. 332, and In re Parker's Estate, 268 Mich. 79, 255 N.W. 318, the procedure was similar to that in the instant case, and there is no suggestion in either opinion that it was improper.

The principal question in this appeal is whether the North Dakota decree is valid. Appellee insists that proponent's North Dakota decree was invalid because the testimony produced before the North Dakota court was not sufficient to show that proponent was a bona fide resident of that state when the divorce decree was entered. Appellant suggests that appellee may not challenge the validity of the North Dakota divorce decree in such an incidental proceeding as this will contest. We will not discuss this question because our examination of the record satisfies us that there is no evidence that appellant acted in bad faith in procuring the North Dakota decree. Some of the authorities in this state upon the question which we do not discuss are: People v. Dawell, 25 Mich. 247, 12 Am.Rep. 260; Waldo v. Waldo, 52 Mich. 94, 17 N.W. 710;Reed v. Reed, 52 Mich. 117, 17 N.W. 720,50 Am.Rep. 247;James v. Emmet Mining Co., 55 Mich. 335, 21 N.W. 361;Philip v. Heraty, 135 Mich. 446, 97 N.W. 963,100 N.W. 186, and O'Dell v. Goff, 153 Mich. 643, 117 N.W. 59.

The record contains a portion of the proceedings and some of the testimony in the North Dakota divorce matter. The...