Freeman v. Hulbert
| Decision Date | 03 April 1925 |
| Docket Number | Motion No. 495. |
| Citation | 203 N.W. 158,230 Mich. 455 |
| Parties | FREEMAN v. HULBERT, Probate Judge. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Certiorari to Circuit Court, Wayne County; Theodore J. Richter, Judge.
Amariah F. Freeman, special administrator of the estate of Mary C. Kempf, deceased, applied to the circuit court for mandamus to be issued against Henry S. Hulbert, as Judge of Probate. The writ was denied, and plaintiff brings certiorari. Reversed, and cause remanded to probate court for further proceedings.
Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. A. F. Freeman, of Detroit (Millis & Streeter and John F. Jordan, all of Detroit, of counsel), for relator.
Frank J. Riggs, of Detroit, and Ben W. Johnson, of Toledo, Ohio, for respondent.
This is certiorari to review mandamus. Plaintiff, special administrator of the estate of Mary C. Kempf, deceased, requested the probate court for the county of Wayne to authorize him, as executor named in the will of the deceased, to engage counsel and obtain evidence to assist in securing the admission of the will to probate in a contest certified to the circuit court. This the probate court had power to do. Act No. 281, Public Acts 1923. He claims the probate judge granted such authority and admonished him ‘to employ good ones.’ He employed himself and two other attorneys. The authorization claimed to have been made was not reduced to writing and no record thereof made. Plaintiff, however, filed a petition at that time asking for the authority. Plaintiff and the two attorneys selected by him took part in the will contest in the circuit and the will was sustained. Contestant of the will, it is claimed, will seek review in this court. After trial of the will contest in the circuit, plaintiff petitioned the probate court to allow him $2,000 for his services as an attorney and $1,500 to one of the other attorneys and $1,000 to the other. The probate judge, finding no record authorizing the employment of counsel, held he had no jurisdiction to make any such allowance, as the authorization could not rest in parol. Plaintiff then asked for the entry of an order nunc pro tunc to have the record show the authority theretofore granted. This was refused. Plaintiff thereupon applied to the Wayne circuit for a writ of mandamus requiring the probate judge to grant the entry of the order nunc pro tunc and consider the claims of counsel for servidces. This was denied and plaintiff sued out the writ of certiorari herein.
It is claimed that Judge Command granted the authority to employ counsel. Judge Hulbert, having no personal knowledge of such authorization and finding no court record of the same, refused the requested nunc pro tunc order and declined to exercise jurisdiction to pass upon the claims for services.
Plaintiff contends that the probate judge had power to authorize the employment of counsel and no court order or record was necessary, and, if wrong in this, then an order nunc pro tunc should be entered to show the authority was in fact granted by the court.
Plaintiff is in error in saying the statute grants power to the judge to appoint counsel, independent of judicial action entered of record in the court. The statute, supra, provides:
‘* * * Should notice of contest of such will be filed, the person or persons therein named as executor or executors shall, subject to the approval of the judge of probate, be authorized to engage counsel and obtain evidence to assist in securing the admission of such will to probate, and the reasonable expenses thereof shall be a proper charge against the estate.’
The probate court is a judicial agency with such jurisdiction, powers, and duties as prescribed by law. Constitution, art. 7, § 13. This statute grants a power to be exercised in the course of the administration of an estate, and therefore the power is in the court as an incident of such jurisdiction.
A will contest, certified or appealed to the circuit court for trial, does not deprive the probate court of jurisdiction over the estate, for, no matter what disposition is made of the will contest, administration must be had in the probate court. An examination of the books discloses that, in statutes, the failure to make close distinction between the office of probate judge and the judicial power-the court-has led the courts quite generally, to hold the terms ‘probate judge’ and ‘probate court’ synonymous, and to mean the probate court, unless a different intent is clearly made manifest.
As said in Carr v. Corning, 73 N. H. 362, 62 A. 168, where it was contended that a trustee to be appointed subject to the approval of the judge of probate required action by the probate judge and not the probate court:
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