Estate of Wojan, In re, Docket No. 62676

• Decision Date: 01 August 1983
• Docket Number: Docket No. 62676
• Citation: 337 N.W.2d 308,126 Mich.App. 50
• Parties: In re ESTATE OF Anthony J. WOJAN, Sr. Madelyn RENAUD, personal representative, Petitioner-Appellee, v. Robert L. HOFFMAN, Intervenor-Appellee, v. Phyllis SWITZER, Stella D. Dubreville, Mary Wood and Delores Gallagher, Respondents-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 308

337 N.W.2d 308

126 Mich.App. 50

In re ESTATE OF Anthony J. WOJAN, Sr.

Madelyn RENAUD, personal representative, Petitioner-Appellee, v. Robert L. HOFFMAN, Intervenor-Appellee, v. Phyllis SWITZER, Stella D. Dubreville, Mary Wood and Delores

Gallagher, Respondents-Appellants.

Docket No. 62676.

Court of Appeals of Michigan.

Submitted Feb. 7, 1983.

Decided May 18, 1983.

Released for Publication Aug. 1, 1983.

Michael A. Gibbons, Charlevoix, for Madelyn Renaud.

James R. Deamud, Prudenville, for Phyllis Switzer, Stella D. Dubreville, Mary Wood and Dolores Gallagher.

Menmuir, Zimmerman, Rollert & Kuhn by Charles H. Menmuir, Traverse City, for intervenor-appellee Robert L. Hoffman.

Before MAHER, P.J., R.B. BURNS and MARUTIAK ^*, JJ.

PER CURIAM.

Several of the children of Anthony J. Wojan, Sr., deceased, appeal from a February 3, 1982, probate court order which directed the personal representative to transfer a group of rental properties from the estate to a corporation incorporated by the testator known as Wojan Apartments, Inc. The probate court found the testator's intent, as evidenced by the will and the circumstances surrounding its making, was for the apartment complex to be distributed through the corporate structure. The probate court certified its order as a final one and this appeal is timely and as of right. M.C.L. Sec. 600.861; M.S.A. Sec. 27A.861.

The plaintiff or proponent in the probate court bears the same evidentiary burden as every litigant in a civil case. Litigants must prove their case by a preponderance of the evidence. Utley v. First Congregational Church, 368 Mich. 90, 100, 117 N.W.2d 141 (1962).

The changes brought by 1978 P.A. 543, M.C.L. Sec. 600.861; M.S.A. Sec. 27A.861, and PCR 801, have yet to be fully digested by this Court. One matter yet unresolved is the appropriate standard of review in cases where the probate judge sits without a jury. While the General Court Rules, GCR 1963, 517.1, provide that "[f]indings of fact shall not be set aside unless clearly erroneous", the Probate Court Rules give no such guidance. In Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976), the Supreme Court articulated the "clearly erroneous" standard:

"In construing comparable 'clearly erroneous' language in Rule 52(a) of the Federal rules of Civil Procedure, the United States Supreme Court has stated that '[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed'. After a review of the entire record of this case, we are left with such a definite and firm conviction. Appropriately, the 'judicial sieve' with which we have sifted the evidence in this non-jury case is 'of finer mesh than the one correspondingly employed on review' of a jury's verdict." (Footnotes omitted.)

Whatever the former review standard might have been, whether "against the preponderance of the evidence", Jones v. Eastern Michigan Motorbuses, 287 Mich. 619, 645, 283 N.W. 710 (1939), "manifest error" or "palpably erroneous", as many other cases state, the "clearly erroneous" standard is not significantly different.

In Kevreson v. Michigan Consolidated Gas Co., 374 Mich. 465, 467, 132 N.W.2d 622 (1965), the Michigan Supreme Court noted in a footnote that the "clearly erroneous" standard was equivalent to the "preponderance of the evidence standard" in the former court rule:

"Former Court Rule No 64 (1945) provided that 'Appellant may assign as error that the judgment is against the preponderance of the evidence.' This has been changed to 'Appellant may assign as error that the finding on the issue tried without a jury is clearly erroneous.' GCR 1963, 810. The change of wording does...