Rice v. Hosking
| Decision Date | 21 May 1895 |
| Citation | 63 N.W. 311,105 Mich. 303 |
| Court | Michigan Supreme Court |
| Parties | RICE ET AL. v. HOSKING. |
Error to circuit court, Houghton county; Jay A. Hubbell, Judge.
Action by John H. Rice and another, executors of the estate of Martha D. Watson, against William H. Hosking, on two notes. Plaintiffs bring error from a judgment against them. Reversed.
Chadbourne & Rees, for appellants.
A. T Streeter (C. R. Brown & Son, of counsel), for appellee.
GRANT J. (after stating the facts).
1. We think the two first points are not well grounded. While the last act might properly have been passed as an amendment to section 5801, 2 How. Ann. St., yet it is not necessarily an amendment. It provides simply for an act on the part of the probate judge which is not in conflict with the other provision, and does not, of necessity, change it. Two statutes relating to the same subject will be so construed as to allow both to stand where they do not contain inconsistent provisions, and the provisions of both can be carried out. Connors v. Iron Co., 54 Mich. 168, 19 N.W. 938; Tillotson v. City of Saginaw, 94 Mich. 240, 54 N.W 162; In re Sanborn's Estate, 96 Mich. 606, 56 N.W. 25. Section 5801 does not require the hearing on the petition to take place at any specified time. It cannot be less than three weeks, because there must be three successive weeks' publication previous to the time of hearing. The court may fix the time at 60 days or more from the date of the order, and thus be enabled to comply with the latter statute. We see no repugnancy between the two.
2. The failure of the probate judge to comply with the statute did not deprive him of jurisdiction which he acquired upon the filing of the petition. Parties interested in the estate were residents of Houghton county. The object of the statutory notice, while the proceeding itself is in nature in rem, is to give the heirs and legatees, and others interested in the distribution of the property of the estate, an opportunity to be heard. Debtors of an estate are not parties in interest within the meaning of the statute. They are not concerned in the proceedings any further than to protect themselves by the payment of their debts to the proper representatives of the estate. Although the notice may be insufficient, and the proceedings declared void upon seasonable objection by a party in interest who has not waived it, yet an appearance will waive the defect, and bind all those who so appear. As to the parties in interest living in Michigan, the notice was sufficient. The finding of facts states that "none of the foreign heirs filed any waiver of such notice." Whether they appeared at all in the case is not shown. The petition stated the residence and post-office address of each heir living in Canada. They may appear at any time before the estate is closed, and file their waiver. They can only be interested in the probate of the will which affects the distribution of the property. The court below held the proceedings in the probate court absolutely void. It must be conceded that these foreign heirs might have appeared in the probate court at any time after the judgment in this case was rendered, waived the notice, and thus validated the entire proceeding. We would thus have the anomalous situation of a valid decree in the probate court, probating the will, and authorizing the executors to collect the estate, and a judgment in the circuit court, in a collateral proceeding holding the decree void, and cutting off the estate from a large portion of its assets. Certainly, the legislature did not contemplate such a situation. Obviously, the statute was enacted for the sole benefit of foreign heirs, and it is but reasonable to hold that they are the sole persons who can take advantage of a failure to comply with its provisions. Other heirs, legatees, creditors, and debtors are neither benefited nor injured by this requirement that the judge of probate shall write and send a letter which may or may not...
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