Thompson v. Thompson

• Decision Date: 31 December 1924
• Docket Number: No. 25.,25.
• Citation: 201 N.W. 533,229 Mich. 526
• Parties: THOMPSON v. THOMPSON et al.
• Court: Michigan Supreme Court

229 Mich. 526

201 N.W. 533

THOMPSON

v.THOMPSON et al.

No. 25.

Supreme Court of Michigan.

Dec. 31, 1924.

Appeal from Circuit Court, Kent County, in Chancery; William B. Brown, Judge.

Action by George Thompson against Gerald B. Thompson and others. Decree for defendants, and plaintiff appeals. Reversed, and decree entered for plaintiff.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Linsey, Shivel, & Smedley, of Grand Rapids, for appellant.

Jewell, Raymond & Face, of Grand Rapids, for appellees Gerald B. Thompson and Douglas M. Brown.

SHARPE, J.

Lillie A. Thompson, the former wife of plaintiff, died on July 18, 1900, leaving a last will and testament, executed on June 6, 1900. The defendant Gerald B. Thompson is her son and only child, born on July 7, 1900. The will was admitted to probate. It contained no provision for the defendant. Plaintiff was appointed executor, and administered the estate.

At the time the will was made, the following statute was in force:

‘When any child shall be born after the making of his father's will, and no provision shall be made therein for him, such child shall have the same share in the estate of the testator as if he had died intestate; and the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.’ 3 Comp. Laws 1897, § 9285.

This section was amended by Act No. 80, Public Acts 1907, in that after the word ‘father's' was inserted ‘or mother's.’ Counsel for plaintiff insist that the amendment clearly indicates that the word ‘father's' in section 9285 was not intended to include a mother, notwithstanding the provisions of section 64, subd. 1, Comp. Laws 1915, then in force. In view of the conclusion we have reached, we are not called upon to determine this question.

On March 16, 1901, plaintiff filed his final account as executor. After prayer for its allowance, he asked:

‘That an order be made determining the legal heirs of said deceased and assigning the residue of said estate to the persons entitled by law to the same.’

The order for hearing was duly published as required by the statute. On April 15, 1901, the day fixed therein, an order was made allowing the final account, and assigning the residue of the estate, particularly described therein, to the plaintiff as ‘devisee and legatee, according to law, and the last will and testament of said deceased.’ This order is not subject to attack in a collateral proceeding. Chapin v. Chapin (Mich.) 201 N. W. 530.

Defendant's counsel insist that the order made is in no way binding upon him, first, because he did not take under the will, but under the statute and in hostility to the will, and, second, because he was at that time a minor, and no guardian an litem or general guardian had been appointed for him. It is counsel's claim that immediately on the death of the testatrix Gerald ‘took the entire estate of his mother as her sole heir the same as he would have done had she died intestate.’ That he would not have been entitled to the possession of the real estate in question, pending the administration by the executor, is clearly established by our holding in the Chapin Case. In the petitioner filed by plaintiff for the probate of the will he stated:

‘The names, relationship, ages, and residences of the devisees, legatees, and heirs at law of said deceased are as follows: George Thompson, husband, 39, Walker, Kent County, Mich.; Gerald Thompson, son, 26 days, Walker, Kent County, Mich.; Douglas M. Brown, conditional legatee.’

The fact that Gerald had been born after the making of the will was therefore known to the court, and it must be assumed that he had this fact in mind in the after proceedings had before him. The statute on which counsel for Gerald relies (3 Comp. Laws 1897, § 9285) does not confer any absolute right on a child born after a will is made. His right to take is dependent, first, upon the fact that no provision is made for him in the will, and, second, that it is not ‘apparent from the will that it was the intention of the testator that no provision should be made for such child.’ Both of these facts must be determined before any title rests in him as an heir. It begs the question to say that such facts so clearly appear from the will itself that it required no judicial determination to establish them. The rights of Gerald under the statute applied to the personalty as well as real estate left by the testatrix. In the hands of the executor both were liable for the payment of the debts if it became necessary to use any part or the whole of the realty for such purpose.

When the order was made admitting the will to probate, the entire estate, whether disposed of by the will or not, became subject to the administration proceedings provided for in the statute. It was the duty of the court to see to it that the rights of all persons interested in the estate, whether they took under the will or not, were protected. It was his duty to assign any residue undisposed of by the will to the persons lawfully entitled thereto. The estate of the deceased was the subject-matter with which he was dealing. Of this he acquired jurisdiction when the will was admitted to probate, and his jurisdiction over it did not terminate until he had discharged the executor and assigned the residue as provided for in section 13787. It must be assumed that he gave consideration to the statute (section 9285) and determined the rights of defendant under it. It provides that:

‘The share of such child shall be assigned to him as provided by law in case of intestate estates.’

Section 9283 (now section 13798) provides for retention by the executor of any property so assigned until the liability of the child entitled thereto to contribute towards the payment of the debts and expenses ‘shall be settled by order of the probate court.’ These orders can be made only after a determination by the court of the rights of the infant under the will and the statute, and are conclusive of the rights of those interested, unless appealed from or attacked as...