Hawgood v. Howard's Estate, Motion No. 171
| Decision Date | 16 September 1932 |
| Docket Number | Motion No. 171,June Term, 1932. |
| Citation | 260 Mich. 60,244 N.W. 229 |
| Parties | HAWGOOD et al. v. HOWARD'S ESTATE. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, Judge.
Application by Henry Hawgood and others for a delayed appeal from the probate court, opposed by the estate of George W. Howard, deceased. From an order of the circuit court denying the application, plaintiffs appeal.
Affirmed.
Argued before the Entire Bench.Frederick W. Bauer and Frank A. Martin, both of Detroit, for appellants.
Renaud & Coash, Abbott & Coulter, McLeod, Fixel, Abbott & Fixel, and James A. Henderson, all of Detroit, for appellee.
This is an appeal, in the nature of mandamus, to vacate an order in the circuit court denying an application for a delayed appeal from the probate court and direction to the circuit judge to allow the appeal.
Plaintiffs, by motion, ask that defendant's brief be stricken from the files for failure to serve notice of appearance under Court Rule No. 62. We decline to deprive ourselves of help furnished by defendant's brief. The motion is denied, but without costs.
In the circuit court plaintiffs, on November 10, 1931, petitioned for leave to appeal from an order of the probate court, entered December 10, 1930, admitting to probate the will of George W. Howard, deceased. Petitioners are residents of Canada, and heirs at law of the testator, and were not given notice of the proceeding in the probate court and did not learn of testator's death and probate of the will until May, 1931, at which time they employed an attorney to look after their interests. The attorney was taken sick, was ill eight weeks, and engaged an associate to help make an investigation. The petition for leave to appeal was denied, and such denial must stand unless there was an abuse of discretion.
The heirs at law complain of want of notice. The statute, C. L. 1929, § 15603, in force at the time the will was filed for probate, provided: ‘Whenever it shall appear upon application to any probate court * * * to prove the will of any deceased person, that the heirs at law of said deceased, or any of them, are residents of a foreign country, it shall be the duty of the judge of such probate court to notify the consul of such foreign nation in the city of New York, or the consul, vice-consul, or consular agent, resident in this state, if there be one of such foreign nation, of the pending of, and the day appointed for hearing such application.'
The record does not show, but we assume from statements in the briefs, that the petition for probate of the will was filed by Hannah Elizabeth June, former housekeeper for testator and principal beneficiary under the will. This petition did not inform the court of the heirs at law in Canada. Notice, in due form, was given to all persons mentioned in the petition and jurisdiction of the probate court was exercised in accord with the statutory provisions applicable to the petition filed, and it is not enough now to show that had the petition been different, then the invoked provision of the statute would have been applicable. Want of notice furnished plaintiffs, with a good excuse for not appealing within the time allowed by statute, but required prompt use thereof to be of avail.
Plaintiffs also invoke C. L. 1929, § 15969, which provides: ‘If any person aggrieved by any act of the judge of probate * * * shall from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably.'
Defendant claims that plaintiffs have not made a showing that justice requires a revision of the case, citing McKay v. Macomb Circuit Judge, ...
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