Prince v. Clark

• Decision Date: 06 June 1890
• Citation: 45 N.W. 663,81 Mich. 167
• Court: Michigan Supreme Court
• Parties: PRINCE et al. v. CLARK.

45 N.W. 663

81 Mich. 167

PRINCE et al. v. CLARK.

Supreme Court of Michigan

June 6, 1890

Appeal from circuit court, Kalamazoo county, in chancery.

Osborn & Mills, for appellants.

A M. Stearns and Dallas Boudeman, for appellee.

GRANT J.

William B. Clark, the father of the defendant and Mary C. Brett, died March 18, 1878, leaving a last will and testament, by which he bequeathed to his wife a life-estate in one-third of his real estate, and the residue to his two children, share and share alike. After the probate of the will the defendant and Mary C. Brett purchased the widow's interest in the real estate, and thereby became the sole owners of said property as tenants in common, each owning an undivided half interest. Mrs. Brett died November 23, 1886, leaving surviving her her husband and one child, Frederica E. Brett. She left a will devising all her property to her daughter, excepting a sufficient sum for the support and maintenance of her husband. He survived her but a short time, and died February 8, 1887, before the controversy involved in this case arose. February 16, 1887, defendant filed a petition in the probate court for his appointment as guardian of Frederica, who was then six years old and feeble minded, and was subsequently duly appointed such guardian. On January 21, 1888, defendant filed a petition in the probate court for a partition of the real estate owned by him and Frederica, his niece. Citation was issued, and served upon Mr. Prince. No guardian ad litem was appointed to represent the infant, and no notice given to any of her relatives except the defendant. Commissioners were appointed, who gave notice to the defendant personally, and as guardian, and to Mr. Prince, as representing the estate of Mary C. Brett, of their appointment, and of the time and place of meeting. The commissioners partitioned the property, filed their report February 24, 1888, and the same was duly confirmed. February 27, 1889, the defendant resigned his trust as guardian, and David Fisher was appointed and qualified in his stead. The bill was filed in this cause June 15, 1889, praying that said partition proceedings may be decreed to be ineffectual inoperative, null, and void; that an accounting be taken of the rents and profits received by each; and that a partition may be made according to the course and practice in the circuit court, in chancery. The case was heard upon pleadings and proofs taken in open court, decree entered dismissing the bill, and complainants appeal.

No charge of fraud is made against the defendant, or any one connected with the partition proceedings. It is virtually admitted that all the parties have acted in good faith. Although it is charged in the bill that the partition was unequal and unjust, the complainants offered no testimony in support of this allegation. The defendant and one of the commissioners, Mr. Hoyt, were sworn, and testified in regard to the manner of conducting the proceedings. It is apparent that no unfair advantage was taken, or intended to be taken by the defendant, and that the commissioners divided the property according to their best judgment. The sole question, therefore, for our determination is whether the probate court obtained jurisdiction to order the partition, because no one but the party whose interest must be considered as hostile to hers was appointed to represent and protect the interests of the infant. Every person is entitled to his day in court whenever his interests are involved, and to due notice of the proceedings, and of the hearing...