Ewing v. McIntyre

• Court: Michigan Supreme Court
• Writing for the Court: HOOKER, C.J.
• Citation: Ewing v. McIntyre, 95 N. W. 540, 133 Mich. 459 (Mich. 1903)
• Decision Date: 23 June 1903
• Parties: EWING v. McINTYRE et al.

95 N.W. 540

133 Mich. 459

EWING v. McINTYRE et al.

Supreme Court of Michigan

June 23, 1903

Error to Circuit Court, Wayne County; Joseph W. Donovan, Judge.

Petition by Augusta Ewing for probate of the lost or destroyed will of Archibald McIntyre, deceased. From a judgment for contestants, Delos McIntyre and others, proponent brings error. Reversed.

Maybury & Lucking (Dohaney & Dohaney and Richard I. Lawson, of counsel), for appellant.

Bowen Douglas, Whiting & Murfin and S. S. Babcock, for appellees.

HOOKER C.J.

We are asked to decide in this cause whether there is jurisdiction in our probate courts to probate a lost, suppressed, or destroyed will, when the citation of such a court is ineffective to compel its production before the court.

One Augusta Ewing made the petition for probate, as a beneficiary. It states the decease of one Archibald McIntyre in May, 1900, leaving a will, and an estate of about $200,000 in real and personal property. The names of the heirs at law are given, all being collateral. It also names some heirs of his wife, who are said to be beneficiaries under the alleged will. Petitioner is a niece, and her petition states, upon information and belief, that testator duly executed the will after September 1, and before October 31, 1894; that his brothers were given nothing by the will; that the will was placed in his private box, with his papers, and kept in his desk up to the time of his death; that while he lay dead, and on May 14, 1900--as she is informed and believes--two of the persons named examined these papers, and removed them all including the will, and, immediately after the funeral hastily and unexpectedly departed for New York, with the papers and other property, and have not returned the will, but instead, on petition of one Helen Lamphere, have been and are proceeding with the administration of the estate in their own interest, as heirs at law of the deceased, ignoring the rights of the beneficiaries under the will, who are entitled to it. The petition prayed that the will be admitted to probate, and for citations and processes necessary for its discovery and production, and special administration meantime. The printed record contains nothing to show what was done in probate court, but counsel for the appellees state in their brief that citations were issued, and no will was discovered, and the petition was denied. An appeal was taken, and came on to be heard before the circuit court, and after a statement of proponent's case the judge directed a verdict for the respondents (or contestants), whoever they may be. The printed record does not seem to show who made the defense, or who appeared and answered, or the nature of the answer, if any were filed. The proponent has appealed. Objection was made to the introduction of proof under the petition, for the reasons: (1) Because it shows the alleged will to have been stolen, and that no effort has been made to bring in the persons who are alleged to have taken it. (2) That the contents and provisions of the alleged will are not stated. Counsel for the proponent admitted the insufficiency of the petition, and asked to amend. It was stated that the point was raised in probate court, where the merits of the case were apparently litigated. The court declined to permit an amendment, and appears to have held not only that the petition was inadequate, but that under the statement of counsel in opening, which was quite full, a valid will had not been shown, and therefore directed a verdict for the jury. Counsel supplemented the statement before the ruling, by offering to prove the 'due execution of the will by the deceased in October, 1896, or facts to go to the jury'; that it was abstracted and removed, if not destroyed, by interested parties; that it existed when testator died; and to prove fully its contents as a complete will, which contents they offered to make a part of the petition by amendment.

If the probate court had jurisdiction to permit the establishment and probate of a lost or destroyed will, we think the court had power to permit the amendment under the circumstances, the case having been fully tried in probate court, and that he would have done so but for his belief that the verdict should be directed for other reasons. We understand from the record and from the briefs that the real point upon which the action was taken was that it was not within the jurisdiction of a probate court to admit to probate a lost or destroyed will. The jurisdiction to admit wills to probate is now quite generally conferred upon probate courts, and in other...