Fouke v. Fouke

Ohio Court of Appeals

Fouke v. Fouke

167 N.E. 698, 32 Ohio App. 226, 6 Ohio Law. Abs. 719, 1928 Ohio App. LEXIS 367

CourtOhio Court of Appeals

DecidedOctober 15, 1928

Docket206

StatusPublished

Cited by1 cases

This text of 167 N.E. 698 (Fouke v. Fouke) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fouke v. Fouke, 167 N.E. 698, 32 Ohio App. 226, 6 Ohio Law. Abs. 719, 1928 Ohio App. LEXIS 367 (Ohio Ct. App. 1928).

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Opinion

LLOYD, J.

We have been cited to none, and have been able to find no statute in Michigan so requiring; nor has our attention been called to any rule of practice so providing. The probating of a will is not an adversary proceeding. The main issue, — in fact the only issue, — is whether or not the paper propounded is a will. This inquiry can neither be enlarged nor contracted by pleadings.

In re Hathaway’s Appeal, 46 Mich., 326. A probate proceeding to establish a will is in the nature of an action in rem.

Allison v. Smith, 16 Mich., 405, 416; Stevens vs. Hope, 52 Mich., 65.

And the Probate courts of Michigan having general and, for the most part, exclusive jurisdiction,

“their orders and decrees are not to be attacked collaterally on any assumption that they may have exercised their jurisdiction without evidence to support the allegations. All presumptions are that their action, when properly invoked, is rightful: . . . and when his action is collaterally-assailed, the presumption in support of it must be that he was satisfied in a legal way and by proper proof.” Marford vs. Dieffenbacker, 54 Michigan, 593, 605.

The authenticated copy of the proceedings admitting to probate the will of Louis Fouke recites that

“It satisfactorily appears to this Court, that said instrument is duly approved and ought to be allowed as the last Will and Testament of said deceased.”

So that, regardless of the fact that the order of probate may not be attacked collaterally, we have no evidence before us to dispute this finding of the court probating the will. In the absence of evidence to the contrary it must be presumed that if it was necessary to appoint a guardian ad litem for the interested minor, that such appointment was made. As said by the court in Allison v. Smith, supra, the proceeding “being one substantially in rem, it would be conclusive against all the world while unrevoked.”

Decree of partition is therefore ordered and the cause remanded to the court of common pleas for further proceedings according to law.

(Richards and Williams, JJ., concur.)

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LLOYD, J.

We have been cited to none, and have been able to find no statute in Michigan so requiring; nor has our attention been called to any rule of practice so providing. The probating of a will is not an adversary proceeding. The main issue, — in fact the only issue, — is whether or not the paper propounded is a will. This inquiry can neither be enlarged nor contracted by pleadings.

In re Hathaway’s Appeal, 46 Mich., 326. A probate proceeding to establish a will is in the nature of an action in rem.

Allison v. Smith, 16 Mich., 405, 416; Stevens vs. Hope, 52 Mich., 65.

And the Probate courts of Michigan having general and, for the most part, exclusive jurisdiction,

“their orders and decrees are not to be attacked collaterally on any assumption that they may have exercised their jurisdiction without evidence to support the allegations. All presumptions are that their action, when properly invoked, is rightful: . . . and when his action is collaterally-assailed, the presumption in support of it must be that he was satisfied in a legal way and by proper proof.” Marford vs. Dieffenbacker, 54 Michigan, 593, 605.

The authenticated copy of the proceedings admitting to probate the will of Louis Fouke recites that

“It satisfactorily appears to this Court, that said instrument is duly approved and ought to be allowed as the last Will and Testament of said deceased.”

So that, regardless of the fact that the order of probate may not be attacked collaterally, we have no evidence before us to dispute this finding of the court probating the will. In the absence of evidence to the contrary it must be presumed that if it was necessary to appoint a guardian ad litem for the interested minor, that such appointment was made. As said by the court in Allison v. Smith, supra, the proceeding “being one substantially in rem, it would be conclusive against all the world while unrevoked.”

Decree of partition is therefore ordered and the cause remanded to the court of common pleas for further proceedings according to law.

(Richards and Williams, JJ., concur.)

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167 N.E. 698, 32 Ohio App. 226, 6 Ohio Law. Abs. 719, 1928 Ohio App. LEXIS 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fouke-v-fouke-ohioctapp-1928.

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