Patrick v. Howard
| Decision Date | 12 October 1881 |
| Citation | 10 N.W. 71,47 Mich. 40 |
| Court | Michigan Supreme Court |
| Parties | PATRICK v. HOWARD. |
It is suggested that there ought to be some statutory limitation upon the time allowed for taking out letters of administration.
On appeal from commissioners on an estate the probate claim need not be put in the form of a declaration; the case cannot be enlarged, and no claim can be heard that was not passed on by the commissioners.
The circuit courts have no original jurisdiction over claims against estates.
On probate appeals from commissioners on claims against estates it is the safer practice to confine the jury's attention to the items on which testimony is offered as they are introduced during the trial, rather than to permit pleadings to be read to them which include items that they cannot properly consider.
In prosecuting a claim against the estate of a son for articles converted by him while living on the estate of his father, a daughter of the plaintiff's intestate after stating that the mother "stayed right there at her own home" was asked "and [the son] took the whole thing and ran it and carried it on?" Held, that this question called for the deductions of an interested witness upon a subordinate issue which belonged to the Jury, and that it led too far and its allowance was erroneous.
Where individual witnesses, in testifying to the reasons of several joint parties for delaying in the presentation of state claims, speak in the plural number, their testimony, so far as it involves merely the knowledge or opinions of others than themselves is hearsay.
Testimony that the family of an intestate continued to occupy the estate together, and one of the heirs paid the household expenses, does not warrant the submission of the question whether he claimed to own the property.
A witness who has denied making a statement properly identified cannot contradict impeaching testimony on this point by showing that he had no such idea as is expressed by such statement.
The amount of hay raised on a farm in a given year cannot be proved by showing the average acreage of grass land and its yield in other years.
The delivery of a deed is presumed from its having been executed acknowledged and recorded and from possession by the grantee or beneficiary under it, unless there are facts against the presumption.
Error to Wayne.
C.I. Walker, for plaintiff in error.
Levi Bishop, for defendant in error.
This case has been tried several times, and this is the third occasion of its appearance in this court for review, and the former decisions are reported in 38 Mich. 795, and 43 Mich 121. It is peculiar in being a controversy between two estates from the beginning, so that neither interest in litigation has the benefit of the personal knowledge of the persons whose transactions are under review. And it is very manifest that the chief and perhaps the only difficulties which attend the dispute are caused by the long delay. The suit is brought on behalf of the estate of Joseph Pardu who died in 1859 against the estate of his son, John W Pardu, who died in 1872. No administration was sought of the former estate until 1875, and John W. Pardu lived till 1872, without having been proceeded against during his lifetime. It is unfortunate that our laws have not imposed some limitation on the time allowed for taking out letters of administration; and whether the delay is well or ill founded, upon which we are not in a position to pass, it is a misfortune which in our opinion illustrates the great mischief of allowing letters to be postponed indefinitely.
The questions raised make it necessary to refer to the shape in which the issues are presented. The claim presented to the commissioners of John W. Pardu's estate and rejected by them consisted of an itemized account of specific articles of property claimed to have belonged to Joseph and to have been wrongfully converted to his own use by his son John W., and claims for rent and timber which have been thrown out as not proper claims. After the last decision by this court, there appears to have been an amended declaration filed in the circuit court for the county of Wayne, which in some respects changes the claim, and includes also a demand for a partnership balance, in case it should turn out that the father and son were in partnership. There may be no objection to putting the probate claim on appeal in the form of a declaration, but the practice is not necessary, and can seldom be of much use. The case made before the commissioners can never be enlarged or changed on appeal, unless by reductions or immaterial alterations, and no claim can be heard that was not passed on by the commissioners. The circuit court has no original jurisdiction over claims against estates, and no new claim can be made there. The probate issues need not be changed in form in such cases or in analogous cases, and whether changed in form or not cannot be added to in substance. Baptist Missy. Union v. Peck, 9 Mich. 445; Torrey v. Wayne Cir. Judge, 38 Mich. 614; Comstock v. Smith, 26 Mich. 306; La Roe v. Freeland, 8 Mich. 531; Fish v. Morse, 8 Mich. 34; Lothrop v. Conely, 39 Mich. 757; Patton v. Bostwick, 39 Mich. 218; Hillebrands v. Nibbelink, 40 Mich. 646.
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