Elizabeth Brinsmade's Appeal

Michigan Supreme Court

Elizabeth Brinsmade's Appeal

18 N.W. 346, 52 Mich. 537, 1884 Mich. LEXIS 807

CourtMichigan Supreme Court

DecidedFebruary 6, 1884

StatusPublished

Cited by6 cases

This text of 18 N.W. 346 (Elizabeth Brinsmade's Appeal) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elizabeth Brinsmade's Appeal, 18 N.W. 346, 52 Mich. 537, 1884 Mich. LEXIS 807 (Mich. 1884).

Pincite

Opinion

Campbell, J.

The probate court of Ottawa- county, upon application of Orleans L. Jordan and Hampden Kelsey, admitted to probate, on proof of foreign probate, the will of Thomas C. Brinsmade, deceased. Mrs. Brinsmade, his widow, was afterwards on a showing allowed to appeal from this order, which she claimed to have been made without sufficient cause and improperly. The appointment and probate were set aside by the circuit court, and Kelsey brought the case into this Court by writ of error.

There was no issue in the circuit court involving the validity of the will or of the New York probate, and the only questions .were, the propriety of the intervention of petitioners below, and of the appointment of Kelsey as administrator. It is now objected by appellee that the wrong remedy has been sought here, and this objection we regard as well taken.

[538]*538It has been decided in this Court several times that a. writ of error is only allowable to bring up such controversies and questions as are according to the course of the common-law. Probate appeals sometimes involve such questions, where there is a contest over the will itself or over contested claims. In other cases they include equitable matters, as in case of accounting, and matters involving more or less discretion. Where no such issue is involved as could ever be a common-law question, the relief must be had by some other process, if it can be had at all. In Besancon v. Brownson 39 Mich. 388, a case like the present came up on certiorari. In Holbrook v. Cook 5 Mich. 225; Conrad v. Button 28 Mich. 365; Cameron v. Bentley 28 Mich. 520; Fletcher v. Clark 39 Mich. 374 and Gott v. Culp 45 Mich. 265 the varying character of probate appeals was considerably discussed and in some of them the proper mode of review was referred to. There was no question presented on which the intervention of a jury could have been a matter of right, and no common-law issue whatever.

The writ must be dismissed with costs.

Tiie other Justices concurred.

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Campbell, J.

The probate court of Ottawa- county, upon application of Orleans L. Jordan and Hampden Kelsey, admitted to probate, on proof of foreign probate, the will of Thomas C. Brinsmade, deceased. Mrs. Brinsmade, his widow, was afterwards on a showing allowed to appeal from this order, which she claimed to have been made without sufficient cause and improperly. The appointment and probate were set aside by the circuit court, and Kelsey brought the case into this Court by writ of error.

There was no issue in the circuit court involving the validity of the will or of the New York probate, and the only questions .were, the propriety of the intervention of petitioners below, and of the appointment of Kelsey as administrator. It is now objected by appellee that the wrong remedy has been sought here, and this objection we regard as well taken.

[538]*538It has been decided in this Court several times that a. writ of error is only allowable to bring up such controversies and questions as are according to the course of the common-law. Probate appeals sometimes involve such questions, where there is a contest over the will itself or over contested claims. In other cases they include equitable matters, as in case of accounting, and matters involving more or less discretion. Where no such issue is involved as could ever be a common-law question, the relief must be had by some other process, if it can be had at all. In Besancon v. Brownson 39 Mich. 388, a case like the present came up on certiorari. In Holbrook v. Cook 5 Mich. 225; Conrad v. Button 28 Mich. 365; Cameron v. Bentley 28 Mich. 520; Fletcher v. Clark 39 Mich. 374 and Gott v. Culp 45 Mich. 265 the varying character of probate appeals was considerably discussed and in some of them the proper mode of review was referred to. There was no question presented on which the intervention of a jury could have been a matter of right, and no common-law issue whatever.

The writ must be dismissed with costs.

Tiie other Justices concurred.

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Bluebook (online)

18 N.W. 346, 52 Mich. 537, 1884 Mich. LEXIS 807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elizabeth-brinsmades-appeal-mich-1884.

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