Heavenrich v. Nichols' Estate

Michigan Supreme Court

Heavenrich v. Nichols' Estate

71 N.W. 852, 113 Mich. 508, 1897 Mich. LEXIS 826

CourtMichigan Supreme Court

DecidedJune 28, 1897

StatusPublished

Cited by10 cases

This text of 71 N.W. 852 (Heavenrich v. Nichols' Estate) 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

Heavenrich v. Nichols' Estate, 71 N.W. 852, 113 Mich. 508, 1897 Mich. LEXIS 826 (Mich. 1897).

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Opinion

Grant, J.

(after stating the facts). 1. It is contended that the probate court obtained no jurisdiction to make the order reviving the commission, .because no notice was served upon the administrator, heirs, or creditors. The revival of the commission at any time before the estate is closed is a matter of right, and not of discretion. Therefore no notice was necessary. 2 How. Stat. § 5894; Hart v. Shiawassee Circuit Judge, 56 Mich. 592.

2. It is also urged as a fatal objection that no notice was served upon the heirs or creditors of the estate. The record does not show upon whom the commissioners [510]*510served notice of the hearing before them. The circuit judge, in instructing the jury, stated that the administrator appeared before the commissioners, and “simply filed an objection to the jurisdiction in a general, way.” It is fair to presume that notice was served upon the administrator by the commissioners. He was a witness, and did not deny service. Whether or not this be so, he appeared, and was not, therefore, prejudiced by want of notice. He made no motion to dismiss the appeal for want of jurisdiction, but proceeded with the trial upon the merits. If the administrator represented the heirs and creditors in this proceeding, notice to him is notice to them. If he does not represent them, then it is sufficient to say that they are not here raising any objection. We think the administrator is estopped to now raise this question under the following decisions: Jenks v. St. Clair Probate Judge, 96 Mich. 122; Bacon v. Kent Probate Judge, 100 Mich. 183.

3. The fact that the commissioners met two days after the two months provided in the order did not operate to defeat the claim. Claimants were in no wise responsible for this action, and claims against an estate cannot be defeated by the failure of the commissioners to take final action and to make their report within the time fixed by the order.

The judgment is affirmed.

Long, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.

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Grant, J.

(after stating the facts). 1. It is contended that the probate court obtained no jurisdiction to make the order reviving the commission, .because no notice was served upon the administrator, heirs, or creditors. The revival of the commission at any time before the estate is closed is a matter of right, and not of discretion. Therefore no notice was necessary. 2 How. Stat. § 5894; Hart v. Shiawassee Circuit Judge, 56 Mich. 592.

2. It is also urged as a fatal objection that no notice was served upon the heirs or creditors of the estate. The record does not show upon whom the commissioners [510]*510served notice of the hearing before them. The circuit judge, in instructing the jury, stated that the administrator appeared before the commissioners, and “simply filed an objection to the jurisdiction in a general, way.” It is fair to presume that notice was served upon the administrator by the commissioners. He was a witness, and did not deny service. Whether or not this be so, he appeared, and was not, therefore, prejudiced by want of notice. He made no motion to dismiss the appeal for want of jurisdiction, but proceeded with the trial upon the merits. If the administrator represented the heirs and creditors in this proceeding, notice to him is notice to them. If he does not represent them, then it is sufficient to say that they are not here raising any objection. We think the administrator is estopped to now raise this question under the following decisions: Jenks v. St. Clair Probate Judge, 96 Mich. 122; Bacon v. Kent Probate Judge, 100 Mich. 183.

3. The fact that the commissioners met two days after the two months provided in the order did not operate to defeat the claim. Claimants were in no wise responsible for this action, and claims against an estate cannot be defeated by the failure of the commissioners to take final action and to make their report within the time fixed by the order.

The judgment is affirmed.

Long, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.

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Bluebook (online)

71 N.W. 852, 113 Mich. 508, 1897 Mich. LEXIS 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heavenrich-v-nichols-estate-mich-1897.

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