Richards v. Pierce

• Decision Date: 27 October 1880
• Citation: 44 Mich. 444,7 N.W. 54
• Court: Michigan Supreme Court
• Parties: RICHARDS v. PIERCE.

7 N.W. 54

44 Mich. 444

RICHARDS v. PIERCE.

Supreme Court of Michigan

October 27, 1880

An action of ejectment may be brought by a devisee, for lands devised to him, before the probate of the will. The probate is essential to enable him to prove his rights, and when made relates back.

Error to Shiawassee.

Hugh McCurdy, for plaintiff in error.

Jerome W. Turner, for defendant in error.

CAMPBELL J.

Plaintiff brought ejectment for certain lands in Shiawassee county which belonged to James Wadsworth, of Livingston county, New York, and were devised by his last will to various persons, from whom plaintiff derives title. These devises were partly in trust and partly directly, in the same proportions and for the same beneficiaries as would have taken the property by descent. The testator died in 1844 and his will was proved the same year in New York, but was not proved in Michigan until after this action was brought.

The only question argued before us was whether, before probate ejectment could be brought by devisees or by those to whom their rights had been previously transferred. The general direction given by the court below to find a verdict for the defendant must have been given under misapprehension, as title was made out which would have been valid without a will, to a large share of the estate. But this seems to have escaped the notice of all parties, and is not material as the case stands.

There has never been any question of the right of a devisee to take his estate as of the death of the testator, and our statutes confine descents, and did when this testator died, to property which is not devised. Rev.St.1838, p. 267. That this is so for all purposes except as otherwise provided by statute is not doubted. But it is claimed that the declaration of section 30, p. 275, Rev.St.1838, (which is substantially the same as in subsequent revisions,) that "no will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the probate court," makes every devise take effect from probate and not earlier, and if not for other purposes, does so for purposes of bringing action. As probate was always necessary to enable one to make proof of title of personalty, this statute cannot certainly impose any greater restrictions on realty than existed before on personalty.

There were undoubtedly some technical rules of common-law pleading which required an executor to make profert of his letters in pleading. But for any other purpose the decisions are uniform that probate merely furnished the means of establishing by a peculiar kind of record evidence the validity of an existing right; and that for every valuable purpose touching the existence and transfer of title the probate was retroactive, and had the same effect as if it had been had at the time of the testator's death. And so far as the statutes have been applied to devises, there is no material difference. Upon so familiar a rule it would not be profitable to multiply authorities, and a few illustrations will suffice as to the condition of things before probate.

The executor may release a cause of action. Co.Lit. 292b. He may sell goods. Mayor of Norwich v. Johnson, 3 Mod. 92. He may enter on a term and the entry be good though he die before probate. 3 Dyer, 367. He may sell a term of years, though he die before probate, and the sale will stand. Brazier v. Hudson, 8 Simons, 67.

In Wankford v. Wankford, 1 Salk. 299 and notes, the doctrine is quite fully discussed, and clearly laid down. And the practical result is said in Brazier v. Hudson to be that subsequent probate validates all acts that would be valid after. This may be a somewhat broad statement, but it is certainly true for most purposes, and authorities might be multiplied upon it.

In the United States the rule has been the same. After probate a...