In re Estate of Labar

1 Mich. N.P. 250

Opinion

By the Court,

Brown, J.

The right to appeal, .in this case, from the decree of the Probate Court, is claimed under § 3631, C. L. This provision authorizes “ any person aggrieved” to appeal, and requires him to assign his reasons. The appellant has assigned fifteen reasons. Do any of them show that he is or can be aggrieved by the decree ? I think not.

It is contended that the record sent up to this Court, with the appeal, shows that the appellant is legatee and heir-at-law, and that he therefore has such an interest in the estate as that he may be prejudiced by an allowance- of improper claims on the part of the executor. As legatee, he is entitled to ten dollars. The accounting shows there is sufficient in the hands of the executor to pay that sum, and the decree directs it to be paid. The will has been duly proved and it does not appear that any appeal was taken. Though heir-at-law, the appellant takes under the will. His possible liability, under a certain contingency, to provide for his mother, and to contribute toward the payment of his father’s débts, in case of a failure of sufficient estate, over and above legacies provided for in the ■will, are considerations too remote to satisfy the Court that he has shown himself “ aggrieved.”

But it is insisted that the appeal has been regularly taken, and that this Court must hear the case on the merits and either affirm or reverse the order appealed from. The statute, §3635, G. L., provides that when a copy of the record of the proceedings appealed from, and the reasons therefor are filed in the Circuit Court, “ such Court shall proceed to the trial and determination of the question according to the rules of law ; and if there shall be any question of fact to be decided, issue may be joined thereon, under the direction of the Court, and a trial thereof had by jury.” Paragraph 3641 provides that the Circuit Court may reverse or .affirm, in whole or in part, the sentence appealed from, * * * or may take any other order therein, as law and justice may require.

A case cannot be tried upon its “ merits ” unless the issue presents merits. A “ case upon the merits ” is one that rests upon the justice of the cause, and not upon technical grounds only. The decree of the Probate Court directed payment to the appllant of all that the will provided for him — all that he was entitled to. It appears from the record, that exact justice has been awarded to the appellant. An order must be entered dismissing the appeal, with costs to the appellee; and the Clerk of this Court will transmit a certified copy of the order to the Probate Court. •