Hilliker v. Dowell, Docket No. 18697

• Decision Date: 27 June 1974
• Docket Number: Docket No. 18697,No. 2,2
• Citation: 220 N.W.2d 712,54 Mich.App. 249
• Parties: Yvette Marie HILLIKER, Plaintiff-Appellee, v. Alice Elizabeth DOWELL, Individually and as administratrix of the Estate of Nolan Walter Dowell, Deceased, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 712

220 N.W.2d 712

54 Mich.App. 249

Yvette Marie HILLIKER, Plaintiff-Appellee, v. Alice Elizabeth DOWELL, Individually and as administratrix of the Estate of Nolan Walter Dowell, Deceased Defendant-Appellant.

Docket No. 18697.

Court of Appeals of Michigan, Division No. 2.

June 27, 1974.

Released for Publication Aug. 14, 1974.

Donald W. Sargent, Detroit, for defendant-appellant.

James Paterson, Hazel Park, for plaintiff-appellee.

Before DANHOF, P.J., and T. M. BURNS and CARLAND,* JJ.

CARLAND, Judge.

From a judgment in favor of plaintiff entered February 28, 1973, the defendant appeals. The judgment awarded the proceeds of an insurance policy to plaintiff and her brother. The facts are not in dispute.

Charlie Mae Dowell, by a former marriage, is the mother of plaintiff Yvette Marie Hilliker and her brother Harry August Perrette. Charlie Mae married the decedent Nolan Walter Dowell sometime prior to the execution of the instrument here involved. For some 17 years following their mother's marriage, these who children, although never adopted by the deceased, were brought up in his home and not only treated as his children but during this time the decedent held himself out to be their father. Nolan Walter Dowell had no children of his own.

On December 22, 1958, the marriage of Charlie Mae and Nolan Walter Dowell was terminated by a judgment of divorce. Charlie Mae still survives. The defendant, mother of the decedent, was appointed admimistratrix of the estate and received the proceeds of the policy in dispute. Plaintiff seeks to be determined to be the beneficiary entitled to the proceeds of the policy and defendant maintains that the estate is entitled thereto.

At issue is the legal effect of an instrument executed by the decedent on October 5, 1953 in which he named 'Charlie Mae Dowell, wife' as primary beneficiary, and 'children' without further description as contingent beneficiaries under the policy in the event of the death of the primary beneficiary. Following the divorce, the decedent failed to name a 'primary beneficiary' to replace his divorced wife.

It is conceded both by reason of the judgment of divorce and the provisions of M.C.L.A. § 552.101; M.S.A. § 25.131, that the divorced wife is not entitled to the proceeds of the policy despite the fact that she was named as primary beneficiary therein, Starbuck v. City Bank and Trust Co., 384 Mich. 295, 181 N.W.2d 904 (1970).

On appeal the appellant first challenges the subject matter jurisdiction of the circuit court, it being contended that the subject matter of this dispute lies solely within the jurisdiction of the probate court. M.C.L.A. § 701.19; M.S.A. § 27.3178(19), provides in pertinent part as follows:

'Each judge of probate shall have jurisdiction:

'(1) Of all matters relating to the settlement of the estates of all deceased persons, whether testate or intestate * * *.

'(2) Of all trusts and trustees in the execution of wills and administration of estates of deceased persons * * *.

'The jurisdiction conferred by this section shall not be construed to deprive the circuit court in chancery in the proper county of concurrent jurisdiction as originally exercised over the same matter * * *.'

The claim that the instrument in question is testamentary in character is without merit. It fails entirely to conform to the statute of wills. We hold that the dispute in question is one of resolving title to personal property. That being so, the probate court is without jurisdiction to determine questions of title. Ashbaugh v. Sinclair, 300 Mich. 673, 2 N.W.2d 810 (1942); Laude v. Cossins, 334 Mich. 622, 55 N.W.2d 123 (1952); Nelson v. Woodworth, 363 Mich. 244, 109 N.W.2d 861 (1961). We further hold the remedy available in the probate court under the circumstances here involved to be inadequate. The issurance of the injunction was necessary in order to preserve the property pending the disposition of the issues raised herein. The circuit court had jurisdiction and the case was tried in the proper forum.

It is further claimed that the trial court erred in awarding the proceeds of the policy to the plaintiff and her brother as the 'contingent beneficiaries'...