Phillips v. Heraty

• Decision Date: 27 June 1904
• Court: Michigan Supreme Court
• Parties: PHILLIPS v. HERATY et al.

100 N.W. 186

135 Mich. 446

PHILLIPS v. HERATY et al.

Supreme Court of Michigan

June 27, 1904

On motion for rehearing. Denied.

For former opinion, see 97 N.W. 963.

Moore C.J., and Carpenter, J., dissenting.

HOOKER, J.

Counsel for plaintiff having moved for a rehearing, we have examined the cause again. The claim that the adjudication that the plaintiff is the widow of the deceased, necessarily determined in the proceedings whereby she was appointed administratrix, is conclusive upon the world and therefore precludes the denial of her widowhood by this defendant, rests upon a failure to discriminate between the right to administratorship, which defendant cannot attack and the fact of widowhood, which it may question in a different subject-matter; not having appeared or taken part in the proceedings for letters of administration. The statement that securing letters of administration upon the uncontested claim of widowhood establishes the latter fact against the world is startling, in its possible consequences to heirs and to a true and lawful widow. It would be an easy way to forstall a prosecution for bigamy, if it were the law. But it is not, as the following authorities will show: In Blackham's Case, 1 Salk. 290, plaintiff in trover proved goods to have been taken from his possession by defendant. Defendant showed that the goods had belonged to Jane Blackham in her lifetime, and that he had taken out letters of administration upon her estate, and so was entitled to the goods. Plaintiff then proved that she was married to him a few days before his death. The defendant answered that the court could not have issued letters of administration to him but upon supposing there was no such marriage, and that this was conclusive upon plaintiff. The court held otherwise. An adjudication of death is a necessary fact to the issue of letters of administration. Yet the Supreme Court of Iowa held that, while such issue is prima facie evidence of death, the presumption raised thereby is very weak, and may be rebutted by slight evidence, in an action on a policy of insurance. Tisdale v. Conn. Mut. Ins. Co., 26 Iowa, 170, 96 Am Dec. 136. See, also, s. c. 28 Iowa, 12. This case went to the Supreme Court of the United States, where it was held that 'in a suit brought by the plaintiff in his individual character, and not as administrator, to recover a debt upon a contract between him and the defendant, where the right of action depends upon the death of a third person, letters of administration upon the estate of such person, granted by the proper probate court in a proceeding to which the defendant was a stranger, afford no legal evidence of such death.' There is a discussion and review of the authorities in that case. A clear exposition of this distinction will be found in a criticism of this case in 3 Cent. Law J. 169. The case of James v. Mining Company, 55 Mich. 347, 21 N.W. 361, upon which the plaintiff relies, was not, in our opinion, intended to lay down a different rule. The question put to the administratrix in that case was upon cross-examination, and as follows: 'Q. Was not Thomas James married to another woman before he married you, and is not that wife still living, and not divorced?' Plaintiff's counsel objected to said question as incompetent and immaterial. Said court sustained the objection, 'and an exception was noted.' This was all there was of the cross-examination, and it followed the admission of her letters of administration against an objection upon the ground that it was not shown that the probate court had obtained jurisdiction to issue them. The appellee's brief discusses the question of immateriality, insisting that the question of her right to administration was not open, and that she was not the heir, but the representative, of the deceased, by virtue of her appointment as administratrix, and that she could not reasonably have been expected to meet the question of the validity of her husband's divorce; and the brief states that these were the views of the circuit judge. The opinion of the court indicates that the right to administration, rather than the fact of widowhood, as bearing upon the amount of damages, was looked upon as the question, and both appellee's brief and the opinion are silent upon the point first made in appellant's brief, viz., that on the fact of widowhood depended, to some extent, the amount of damages. Again, it is inferable that in that case, as in Waldo v. Waldo, 52 Mich. 91, 94, 17 N.W. 709, 710, which is the only case cited by counsel or court, the question was whether the validity of a decree of divorce could be attacked collaterally--a different question from the one before us. The objection that this question went to the measure of damages was not called to the attention of the trial court specifically. It has often been held that grounds of objection must be specifically stated. People v. Foglesong, 116 Mich. 556, 74 N.W. 730; Jourdan v. Patterson, 102 Mich. 602, 61 N.W. 64; Mahiat v. Codde, 106 Mich. 387, 64 N.W. 194; Benedict v. Provision Co., 115 Mich. 527, 73 N.W. 802; Hynes v. Hickey, 109 Mich. 188, 66 N.W. 1090; Isaacs v. McLean, 106 Mich. 79, 64 N.W. 2; Rivard v. Rivard, 109 Mich. 98, 66 N.W. 681, 63 Am. St. Rep. 566; Farrell v. School Dist., 98 Mich. 43, 56 N.W. 1053; Ranson v. Weston, 110 Mich. 240, 68 N.W. 152; Hutchison Mfg. Co. v. Pinch, 107 Mich. 12, 64 N.W. 729, 66 N.W. 340; Heddle v. Elec. Co., 112 Mich. 547, 70 N.W. 1096; Krolick v. Graham, 64 Mich. 226, 31 N.W. 307; Abbott v. Chaffee, 83 Mich. 256, 47 N.W. 216; Merkle v. Town of Bennington, 68 Mich. 133, 35 N.W. 846; People v. Moore, 86 Mich. 134, 48 N.W. 693; Hutchinson v. Whitmore, 95 Mich. 592, 55 N.W. 438; Seventh Day Ad. Ass'n v. Fisher, 95 Mich. 274, 54 N.W. 759; Gilbert v. Kennedy, 22 Mich. 117; Lobdell v. Bank, 33 Mich. 408; Jennison v. Haire, 29 Mich. 207; Rash v. Whitney, 4 Mich. 495; Jochen v. Tibbells, 50 Mich. 33, 14 N.W. 690; Young v. Stephens, 9 Mich. 500; Maxwell v. Kellogg, 55 Mich. 606, 22 N.W. 60; Heynes v. Champlin, 52 Mich. 26, 17 N.W. 226. The objection in James v. Mining Co. was well taken as to the ground stated and discussed in the trial court, and the defendant's counsel made no claim there of the reason for the admission of the testimony which he afterwards urged in this court. Apparently it did not then occur to him. If it did, his conduct was unfair to the trial court. The province of this court is to pass upon questions raised and passed upon in the court below. Wierengo v. Ins. Co., 98 Mich. 627, 57 N.W. 833; Ross v. Ionia Tp., 104 Mich. 326, 62 N.W. 401. In Rogers v. Ferris, 107 Mich. 129, 64 N.W. 1048, we refused to consider a question that the attention of the trial court had not been called...