Noble v. McNerney

• Citation: 165 Mich.App. 586,419 N.W.2d 424
• Decision Date: 26 February 1988
• Docket Number: Docket No. 86634
• Parties: Julie McNerney NOBLE, Personal Representative of the Estate of William J. McNerney, Deceased, Plaintiff-Appellant Cross-Appellee, v. Zella McNERNEY, Defendant-Appellee Cross-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 424

419 N.W.2d 424

165 Mich.App. 586

Julie McNerney NOBLE, Personal Representative of the Estate

of William J. McNerney, Deceased, Plaintiff-Appellant Cross-Appellee, v. Zella McNERNEY, Defendant-Appellee Cross-Appellant.

Docket No. 86634.

Court of Appeals of Michigan.

Submitted Dec. 4, 1986.

Decided Jan. 19, 1988.

Released for Publication Feb. 26, 1988.

Smith & Smith by James L. McInerney, Dearborn, for plaintiff-appellant cross-appellee.

Archer, Kenney & Wilson by Peter C. Kenney, Dearborn, for defendant-appellee cross-appellant.

Before DANHOF, C.J., and SHEPHERD and PORTER, ^* JJ.

DANHOF, Chief Judge.

Plaintiff appeals and defendant cross-appeals from an order of the Wayne County Probate Court entered pursuant to the settlement of an estate.

William J. McNerney died on June 25, 1979. Decedent's will, dated May 19, 1977 was admitted to probate on July 10, 1979. Julie McNerney Noble, a daughter of the decedent, was appointed personal representative. On November 18, 1981, the personal representative brought the instant action in the probate court to recover proceeds from a life insurance policy and a credit union account, allegedly obtained by defendant Zella McNerney as a result of undue influence. Defendant is decedent's second wife, whom he married on June 17, 1978, just over a year prior to his death.

On June 7, 1984, defendant filed a countercomplaint against the estate seeking funeral expenses, a widow's allowance, a homestead allowance, and a determination that she was a pretermitted spouse.

On September 5, 1984, a jury found that defendant had obtained the proceeds of the life insurance policy and the credit union account through undue influence. On March 5, 1985, the trial court issued an opinion ruling that the insurance proceeds and credit union account, totalling almost $100,000, were assets of the estate. The court also held that defendant was a pretermitted spouse as defined by statute and that she was entitled to a homestead allowance (subject to setoff against her pretermitted share) and an exempt property allowance. The court denied plaintiff's prayer for interest from defendant on the assets she had acquired as a result of undue influence. At the same time, the court ruled that defendant was not entitled to a widow's allowance. The court ruled that plaintiff's prayer for interest was offset by defendant's claim for a widow's allowance. The trial court also denied plaintiff's request that the fees of the estate's attorney be paid from the estate corpus.

We address first the issues raised by defendant in her cross-appeal.

Defendant argues that the probate court lacks subject matter jurisdiction to entertain plaintiff's claims of undue influence. Defendant contends that such actions can only be brought in the circuit court.

Pursuant to Const.1963, art. 6, § 13, the circuit court has original jurisdiction in all matters not prohibited by law. In contrast, the Constitution provides that the probate court shall possess only such jurisdiction as provided by law. Const.1963, art. 6, § 15.

The jurisdiction of the probate court is set forth at M.C.L. § 600.841; M.S.A. § 27A.841 and includes, inter alia, jurisdiction and power "[a]s conferred upon it under the revised probate code."

The Revised Probate Code, 1978 P.A. 642, M.C.L. § 700.1 et seq.; M.S.A. § 27.5001 et seq., became effective July 1, 1979. The bill was proposed in part because of a general feeling that the prior code's procedures for probating estates were in many cases needlessly complex, resulting in unnecessary delay and expense. House Legislative Analysis, HB 4475, January 30, 1979.

The Revised Probate Code sets forth the court's jurisdiction in two sections. Section 21 delineates the areas in which the probate court has exclusive jurisdiction. Pertinent to the instant appeal is subsection (a) which provides that the probate court will have exclusive jurisdiction in

"(a) Matters relating to the settlement of the estate of a deceased person, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled without the state leaving an estate within the county to be administered." M.C.L. § 700.21(a); M.S.A. § 27.5021(a).

The probate court's § 21 jurisdiction is substantially similar to the court's jurisdiction under the former probate code, M.C.L. § 701.19; M.S.A. § 27.3178(19). Prior to the enactment of the Revised Probate Code, probate courts were without jurisdiction to resolve disputes involving questions of title to real and personal property. Hilliker v. Dowell, 54 Mich.App. 249, 252, 220 N.W.2d 712 (1974); Ashbaugh v. Sinclair, 300 Mich. 673, 2 N.W.2d 810 (1942).

However, the enactment of the Revised Probate Code expanded the probate court's jurisdiction with the addition of § 22, M.C.L. § 700.22; M.S.A. § 27.5022. Section 22(1) provides:

"Except where exclusive jurisdiction is given in the state constitution of 1963 or by statute to some other court, or where the probate court is denied jurisdiction by the constitution or statutes of this state, in addition to the jurisdiction conferred by section 21 and other laws, the probate court has concurrent jurisdiction of any of the following when ancillary to the settlement of an estate of a decedent, ward, or trust:

"(a) To determine the validity of and resolve claims involving title to real and personal property.

"(b) To authorize partition of property.

"(c) To authorize specific performance of a contract in a joint or mutual will or of a contract to leave property by will.

"(d) To ascertain survivorship of parties.

"(e) To bar a mentally incompetent or minor wife from her dower right, under sections 1 to 29 of chapter 66 of the Revised Statutes of 1846, as amended, being sections 558.1 to 558.29 of the Michigan Compiled Laws, in the real estate of her living husband as provided in section 2931 of Act No. 236 of the Public Acts of 1961, being section 600.2931 of the Michigan Compiled Laws.

"(f) To determine cy-pres, when an estate of a trust of a decedent is involved, over gifts, grants, bequests and devises in trust or otherwise to religious, educational, charitable, or benevolent uses as provided in Act No. 280 of the Public Acts of 1915, as amended, being sections 554.351 to 554.353 of the Michigan Compiled Laws.

"(g) To construe a will or determine heirs.

"(h) To hear and decide an action or proceeding against distributees of an estate fiduciary to enforce liability arising because the estate was liable upon some claim or demand before distribution of the estate.

"(i) To require an accounting of a fiduciary.

"(j) To determine an action or proceeding of a constructive trust.

"(k) To order, when requested by an interested person, any instruction or direction to a fiduciary under this act regarding this act or any applicable Michigan law affecting an estate within the jurisdiction of the court."

Subsection 4 of § 22 explains the purpose of the expansion in the probate court's jurisdiction:

"(4) The underlying purpose and policy of this section is to simplify the probate of estates and the disposition of actions or proceedings involving estates of decedents, estates of wards, and trust estates by having the probate and other related actions or proceedings in the probate court." (Emphasis added.)

Even though the scope of the probate court's jurisdiction was expanded by the enactment of the Revised Probate Code, the probate court has not become a court of general jurisdiction. In re Kus Estate, 136 Mich.App. 343, 347, 356 N.W.2d 23 (1984). For the probate court to have jurisdiction, the claim must be "ancillary to the settlement of an estate of a decedent, ward or trust" and the claim must fall within one of the specific categories set forth in § 22. Van Etten v. Manufacturers National Bank of Detroit, 119 Mich.App. 277, 287, 326 N.W.2d 479 (1982).

As noted above, prior to the enactment of the Revised Probate Code, probate courts were without jurisdiction to resolve disputes involving questions of title to real and personal property. However, M.C.L. § 700.22(1)(a); M.S.A. § 27.5022(1)(a) now provides that probate courts possess concurrent jurisdiction to "determine the validity of and resolve claims involving title to real and personal property" if "ancillary to the settlement of an estate."

Black's Law Dictionary (4th ed) defines "ancillary" as: "Aiding; attendant upon: describing a proceeding attendant upon or which aids another proceeding considered as principal.... Auxiliary or subordinate." We find that resolution of title to the life insurance proceeds and the savings account is ancillary to the settlement of the estate. Determining what assets are within the estate undoubtedly is beneficial to the estate's general administration.

Despite the apparent expansion of the probate court's concurrent jurisdiction under § 22(1)(a), defendant argues that the probate court remains powerless to resolve "disputes regarding title of the decedent to specific assets alleged to be included in the estate." Defendant bases her contention upon the definition of "claim" in § 3(4). Section 3(4) provides:

" 'Claim' in respect to estates of decedents, disappeared persons, minors, and legally incapacitated persons includes liabilities of the decedent, disappeared person, or ward, whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or before the death of the decedent, and funeral and burial expenses. Claim does not include estate and inheritance taxes, demands, or disputes regarding title of a decedent, disappeared person, or ward to specific assets alleged to be included in the estate." M.C.L. § 700.3(4); M.S.A. § 27.5003(4). (Emphasis added.)

For ease of reference, § 22(1)(a) is again set forth:

"Except where exclusive jurisdiction is given in the state constitution of 1963 or by statute to some other court, or where the probate court is denied...