Edwards, J.
In this case a Michigan lawyer drafted a will (and 2 codicils thereto) which left the bulk of an old lady’s estate of three-quarters of a ■million dollars to the lawyer’s wife. The particular will in dispute was the last of a series of wills, and it and its codicils were executed within a period of 2 years before the testatrix was committed to a mental institution where she subsequently died.
The will preceding the last will provided for certain charities to be established. The prosecuting attorney of the county, a guardian ad litem appointed by the circuit court to represent the charitable trusts, and certain distant relatives all seek to contest the ■last will and set it aside on grounds of fraud and un.•due influence and the mental incompetence of the testatrix.
The will contest brought by the named contestants having been certified to the circuit court for hearing, the proponent of the will appeals asserting various irregularities in the will .contest procedure and that [225]*225there is no proper party before the court who can bring the will contest.
We find the proceedings to this point regular in all respects, and further find that the named parties are proper parties in interest to contest the will except (as will be indicated later) for the guardian ad litem appointed by the circuit court.
The detailed dates and facts relevant to this appeal follow:
Lunette I. Powers died March 24, 1959. .She had been a practicing physician in Muskegon for many years, having graduated from Northwestern Medical School in 1897.
During her lifetime she had made a number of wills. Of these we will have occasion to refer in particular to the last 2 — one executed in 1952, the other in 1955.
By the terms of the 1952 will, after certain specific bequests, testatrix set up a .residuary trust for one Kathryn A. Mann, whom this record shows to have predeceased testatrix. The will then provided further :
“Upon the death of my good friend, Kathryn A. Mann, said trust shall terminate and my trustee shall pay over the corpus to such one or more entities, free from trust, in such manner and in such proportions as my said trustees may appoint by deed; provided, that each such appointee shall (1) be organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, (2) not permit any part of its net earnings to inure to the benefit of any private shareholder or individual, (3) not have as a substantial part of its activities carrying on propaganda or otherwise attempting to influence legislation, (4) qualify under the provisions of section 101(6), section 1004(a) (2) and section 812(d) of the internal revenue code (or such sections as maybe substituted therefor) as they obtain at the time of my death, and (5) qualify for tax exemption [226]*226under all income, gift, and death taxes of the State of Michigan which may obtain at the time of my death; provided, that if no charitable agency is entitled to exemption under such Federal and Michigan laws, conditions (4) and (5) shall he disregarded.”
Implementing this paragraph were a number of precatory expressions by which testatrix sought to indicate the sort of charitable work she desired to have carried out.
December 7, 1955, testatrix executed another will. This will, after reciting some relatively specific small bequests, in paragraph 7 bequeathed 1/5 of the estate to each of 3 persons: Alexis J. Rogosld, Bart D. Buck, and Loretta E. Rogosld. This will also contained a residuary clause leaving all the residue to Loretta E. Rogosld.
On December 22, 1955, a codicil to this will was executed which changed the amounts specified in paragraph 7 from 1/5 of the estate to 5%. The residuary clause in favor of Loretta E. Rogosld was not changed by that codicil, nor by another codicil dated November 14, 1956, which added specific bequests totaling no more than $4,600.
The pleadings concede that the 1955 will and the 2 codicils thereto were drafted by Alexis J. Rogosld, attorney for Dr. Powers. Loretta E. Rogosld is his wife.
On May 15, 1957, Dr. Powers was committed to Traverse City State hospital as a mentally ill person. The contestants allege that at the time she was suffering “from progressive senile psychosis” of longstanding duration. Dr. Powers died in that hospital March 24,1959.
On March 26, 1959, Alexis J. Rogosld, who with Bart D. Buck had been named executors and trustees under the 1955 will, filed a petition for probate of the 1955 will. On April 1st, Bart D. Buck filed a declination of trust in the Powers estate.
[227]*227On May 8,1959, the prosecuting attorney of Muskegon county filed a petition in the circuit court for Muskegon county seeking appointment of a guardian ad litem to represent and protect the interests of the undetermined and unknown charitable beneficiaries under the 1952 will. On the same day, the 2 circuit judges for Muskegon county appointed John L. Wierengo, Jr., guardian ad litem.-
Subsequently the guardian ad litem, the prosecuting attorney of Muskegon county, and certain heirs-at-law filed objections in probate court to the probate of the 1955 will, and petitions for certification of the will contest to the circuit court. The proponent filed motions to dismiss the objections and to deny certification. After hearing proofs and arguments, the probate judge certified the will contest to the circuit court and entered an order holding in part:
“It is ordered and adjudged that John L. Wierengo, Jr., guardian ad litem is not a proper party in interest to appear in these proceedings, the relief prayed for in his petitions is hereby denied, and he is hereby dismissed as a party in interest to these proceedings.
“It is ordered and adjudged that the heirs-at-law, the prosecuting attorney for the county of Muskegon, and the proponent Alexis J. Eogoski are proper parties in interest in these proceedings.”
The guardian ad litem on instructions of the circuit court appealed the probate court order dismissing him as not being a proper party in interest. The proponent Eogoski likewise appealed the other provisions of the probate court order.
After hearing before a visiting circuit judge, these appeals were determined by an order reversing the probate court as to the guardian ad litem and holding liirn to be a proper party in interest and affirming all the balance of the probate court order. He also considered and granted a petition for fees' and ex[228]*228penses for the guardian ad litem and his attorneys in the sum of $2,718 to be paid from the estate.
At this same hearing the visiting circuit judge also heard and denied a petition from Rogo sld to dismiss the probate court certification of the will contest and to require all contesting parties to furnish security for costs.
Proponent and appellant Rogoski, in 4 separate cases (all of which are consolidated for appellate purposes) contends that the circuit judge was in error on all of these determinations.
On the face of the matter it appears that issues of some significance are presented by this will contest. Appeal bonds have apparently been filed by the heirs-at-law and by the guardian ad litem.
Free access — add to your briefcase to read the full text and ask questions with AI
Edwards, J.
In this case a Michigan lawyer drafted a will (and 2 codicils thereto) which left the bulk of an old lady’s estate of three-quarters of a ■million dollars to the lawyer’s wife. The particular will in dispute was the last of a series of wills, and it and its codicils were executed within a period of 2 years before the testatrix was committed to a mental institution where she subsequently died.
The will preceding the last will provided for certain charities to be established. The prosecuting attorney of the county, a guardian ad litem appointed by the circuit court to represent the charitable trusts, and certain distant relatives all seek to contest the ■last will and set it aside on grounds of fraud and un.•due influence and the mental incompetence of the testatrix.
The will contest brought by the named contestants having been certified to the circuit court for hearing, the proponent of the will appeals asserting various irregularities in the will .contest procedure and that [225]*225there is no proper party before the court who can bring the will contest.
We find the proceedings to this point regular in all respects, and further find that the named parties are proper parties in interest to contest the will except (as will be indicated later) for the guardian ad litem appointed by the circuit court.
The detailed dates and facts relevant to this appeal follow:
Lunette I. Powers died March 24, 1959. .She had been a practicing physician in Muskegon for many years, having graduated from Northwestern Medical School in 1897.
During her lifetime she had made a number of wills. Of these we will have occasion to refer in particular to the last 2 — one executed in 1952, the other in 1955.
By the terms of the 1952 will, after certain specific bequests, testatrix set up a .residuary trust for one Kathryn A. Mann, whom this record shows to have predeceased testatrix. The will then provided further :
“Upon the death of my good friend, Kathryn A. Mann, said trust shall terminate and my trustee shall pay over the corpus to such one or more entities, free from trust, in such manner and in such proportions as my said trustees may appoint by deed; provided, that each such appointee shall (1) be organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, (2) not permit any part of its net earnings to inure to the benefit of any private shareholder or individual, (3) not have as a substantial part of its activities carrying on propaganda or otherwise attempting to influence legislation, (4) qualify under the provisions of section 101(6), section 1004(a) (2) and section 812(d) of the internal revenue code (or such sections as maybe substituted therefor) as they obtain at the time of my death, and (5) qualify for tax exemption [226]*226under all income, gift, and death taxes of the State of Michigan which may obtain at the time of my death; provided, that if no charitable agency is entitled to exemption under such Federal and Michigan laws, conditions (4) and (5) shall he disregarded.”
Implementing this paragraph were a number of precatory expressions by which testatrix sought to indicate the sort of charitable work she desired to have carried out.
December 7, 1955, testatrix executed another will. This will, after reciting some relatively specific small bequests, in paragraph 7 bequeathed 1/5 of the estate to each of 3 persons: Alexis J. Rogosld, Bart D. Buck, and Loretta E. Rogosld. This will also contained a residuary clause leaving all the residue to Loretta E. Rogosld.
On December 22, 1955, a codicil to this will was executed which changed the amounts specified in paragraph 7 from 1/5 of the estate to 5%. The residuary clause in favor of Loretta E. Rogosld was not changed by that codicil, nor by another codicil dated November 14, 1956, which added specific bequests totaling no more than $4,600.
The pleadings concede that the 1955 will and the 2 codicils thereto were drafted by Alexis J. Rogosld, attorney for Dr. Powers. Loretta E. Rogosld is his wife.
On May 15, 1957, Dr. Powers was committed to Traverse City State hospital as a mentally ill person. The contestants allege that at the time she was suffering “from progressive senile psychosis” of longstanding duration. Dr. Powers died in that hospital March 24,1959.
On March 26, 1959, Alexis J. Rogosld, who with Bart D. Buck had been named executors and trustees under the 1955 will, filed a petition for probate of the 1955 will. On April 1st, Bart D. Buck filed a declination of trust in the Powers estate.
[227]*227On May 8,1959, the prosecuting attorney of Muskegon county filed a petition in the circuit court for Muskegon county seeking appointment of a guardian ad litem to represent and protect the interests of the undetermined and unknown charitable beneficiaries under the 1952 will. On the same day, the 2 circuit judges for Muskegon county appointed John L. Wierengo, Jr., guardian ad litem.-
Subsequently the guardian ad litem, the prosecuting attorney of Muskegon county, and certain heirs-at-law filed objections in probate court to the probate of the 1955 will, and petitions for certification of the will contest to the circuit court. The proponent filed motions to dismiss the objections and to deny certification. After hearing proofs and arguments, the probate judge certified the will contest to the circuit court and entered an order holding in part:
“It is ordered and adjudged that John L. Wierengo, Jr., guardian ad litem is not a proper party in interest to appear in these proceedings, the relief prayed for in his petitions is hereby denied, and he is hereby dismissed as a party in interest to these proceedings.
“It is ordered and adjudged that the heirs-at-law, the prosecuting attorney for the county of Muskegon, and the proponent Alexis J. Eogoski are proper parties in interest in these proceedings.”
The guardian ad litem on instructions of the circuit court appealed the probate court order dismissing him as not being a proper party in interest. The proponent Eogoski likewise appealed the other provisions of the probate court order.
After hearing before a visiting circuit judge, these appeals were determined by an order reversing the probate court as to the guardian ad litem and holding liirn to be a proper party in interest and affirming all the balance of the probate court order. He also considered and granted a petition for fees' and ex[228]*228penses for the guardian ad litem and his attorneys in the sum of $2,718 to be paid from the estate.
At this same hearing the visiting circuit judge also heard and denied a petition from Rogo sld to dismiss the probate court certification of the will contest and to require all contesting parties to furnish security for costs.
Proponent and appellant Rogoski, in 4 separate cases (all of which are consolidated for appellate purposes) contends that the circuit judge was in error on all of these determinations.
On the face of the matter it appears that issues of some significance are presented by this will contest. Appeal bonds have apparently been filed by the heirs-at-law and by the guardian ad litem. See CL 1948, § 701.39 (Stat Ann 1959 Cum Supp § 27.3178[39]). We find no reason to hold that the circuit judge abused his discretion in refusing appellant’s petition for additional security for costs.
As to questions presented pertaining to which, if any, contestants were proper parties in interest to contest the will, we turn first to the heirs-at-law in relation to whom some factual material must be added.
The heirs-at-law are distant relatives of Dr. Powers. It is conceded on this record that if Dr. Powers had died intestate, they were of such relationship as to qualify as heirs-at-law. It also appears conceded that none of them had had any contact with Dr. Powers for many years, and that in all except 1 of 7 successive wills Dr. Powers had employed language which showed an intention to disinherit them.
Thus appellant contends in effect that even if the 1955 will were successfully contested, the heirs-at-law would be barred from any interest by one of the prior wills. Proper execution of these prior wills is conceded but, of course, none of them has been probated and approved.
[229]*229The question thus posed has apparently never been answered directly in Michigan; but it has been answered with differing results in other States. Thus, Kansas,1 Kentucky,2 and Georgia3 have held that the right of heirs-at-law to contest a will was not cut off by the possible effect of prior unprobated wills, while Tennessee4 and Louisiana5 held the opposite.
We believe the Kansas, Kentucky, and Georgia view to be the preferable one for us to adopt. Under Michigan law, no prior wills can serve to pass title to property (or to disinherit) until and “unless it shall have been duly proved and allowed.” CL 1948, § 702.20 (Stat Ann 1943 Rev § 27.3178 [90]).
In In re Dutton Estate, 347 Mich 186, this Court said (p 191):
“An instrument submitted as a final testament enjoys no legal, distinguished from evidentiary, worth unless and until it is authenticated by judgment.”
We believe the courts below were right in holding that the heirs-at-law were not barred as contestants by prior unprobated wills.
The other issue concerning the right of the heirs-.at-law to contest this will merits less attention. Appellant claims that the heirs-at-law have signed a 40% contingency agreement with an “heir finding” company. Appellant asserts that this agreement is champertous and void, and hence appellant asks us to hold, that the heirs-at-law are barred as contestants.
. If, without deciding, we assume the agreement cited is valid, the heirs-at-law who have signed it still retain 60% of any interest they might have. If we as[230]*230snme that it is champertous and void, they have 100% of their interest. The cases cited by appellant concern assignees and have no bearing on our immediate problems.
The heirs-at-law are interested parties (CL 1948, § 702.24 [Stat Ann 1943 Rev § 27.3178(94)]) for purposes of the will contest.
The issues raised as to whether or not the prosecuting attorney of Muskegon county and the guardian ad litem are also proper parties to this will contest are not so simply disposed of. We shall deal with both issues at the same time since they are intimately related. They require construction of 2 sections of the Michigan statute dealing with charitable bequests :
“Sec. 1. No gift, grant, bequest or devise, whether in trust or otherwise to religious, educational, charitable or benevolent uses, or for the purpose of providing for the care or maintenance of any part of any cemetery, public or private, or anything therein contained which shall in other respects be valid under the laws of this State, shall be invalid by reason of the indefiniteness or uncertainty of the object of such trust or of the persons designated as the beneficiaries thereunder in the instrument creating the same, nor by reason of the same contravening any statute or rule against perpetuities. If in the instrument creating such a gift, grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes, shall vest in such trustee. If no such trustee shall be named in said instrument or if a vacancy occurs in the trusteeship, then the trust shall vest in the court of chancery for the proper county, and shall be executed by some trustee appointed for that purpose by or under the direction of the court; and said court may make such orders or decrees as may be necessary to vest the title to said lands or property in the trustee [231]*231so appointed.” (Emphasis supplied.) CL 1948, § 554.351 (Stat Ann 1953 Rev § 26.1191).
“Sec. 2. The court of chancery for the proper county shall have jurisdiction and control over the gifts, grants, bequests and devises in all cases provided for by section 1 of this act. Every such trust shall be liberally construed by such court so that the intentions of the creator thereof shall be carried cut whenever possible. The prosecuting attorney of the county in which the court of chancery shall have jurisdiction and control shall represent the beneficiaries in all cases where they are uncertain or indefinite, and it shall be his duty to enforce such trusts by proper proceedings in the court, but he shall not be required to perform any duties in connection with such trusts in any court outside of this State.” (Emphasis supplied.) CL 1948, § 554.352 (Stat Ann 1953 Rev § 26.1192).
The prosecuting attorney of Muskegon county apparently had facts presented to him which convinced him of the invalidity of Dr. Powers’ 1955 will and the validity of the 1952 charitable bequests. In such circumstances, we believe that the language of these 2 sections must be read as authorizing and requiring him to seek to enforce the charitable trust.
Scott on Trusts gives this brief history of the enforcement of charitable trusts:
“In England the records show that even before the enactment of the statute of charitable uses in 1601 suits were brought by the attorney-general to enforce charitable trusts. The community has an interest in the enforcement of such trusts and the attorney general represents the community in seeing that the trusts are properly performed. In some States such a suit may be maintained by the local district attorney or county attorney. In most States, as in England, the suit is brought in the name of the attorney general, although in some States it is brought in the name of the people of the State but is prosecuted by [232]*232the attorney general.” 4 Scott on Trusts (2d ed), p 2753.
While the duty of enforcing uncertain or indefinite charitable trusts in many States and in England is assigned to the attorney general, the Michigan statute like that of a number of States assigns this task to the prosecuting attorney of the county in which the circuit court has jurisdiction of the trust concerned.
Under a somewhat similar statute which, however, assigns the enforcement to the attorney general, New York has held that the attorney general is the proper representative of indefinite charitable beneficiaries. National City Bank of New York v. Beebe, 131 NYS2d 67, affirmed 285 App Div 874 (139 NYS2d 238), appeal denied 285 App Div 935 (139 NYS2d 887), motion granted and appeal dismissed 308 NY 960 (127 NE2d 100); In re Lachat’s Estate, 184 Misc 486 (52 NYS2d 445), 184 Misc 492 (52 NYS2d 451), appeal dismissed 269 App Div 1013 (60 NYS2d 286).
See, also, Burbank v. Burbank, 152 Mass 254 (25 NE 427, 9 LRA 748); Dickey v. Volker, 321 Mo 235 (11 SW2d 278, 62 ALR 858); Greenway v. Irvine’s Trustee, 279 Ky 632 (131 SW2d 705, 124 ALR 1229); 2 Restatement, Trusts2d, § 391.
In the Michigan case closest to our current problem, this Court held that a guardian ad litem appointed by the probate court was not a proper party to enforce the rights of uncertain and indefinite charitable beneficiaries in the circuit court and that the prosecuting attorney was. •
“However, both parties to this appeal agree that there is a statutory provision in this State in consequence of which the prosecuting attorney of the county wherein the suit originated is a proper party plaintiff to represent unascertained beneficiaries.
“ ‘The prosecuting attorney of the county in which the court of chancery shall have jurisdiction and con[233]*233trol shall represent the beneficiaries in all cases where they are uncertain or indefinite, and it shall be his duty to enforce such trusts by proper proceedings in the court, but he shall not be required to perform any duties in connection with such trusts in any court outside of this State.’ CL 1929, § 13513.
“The prosecuting attorney of Wayne county filed a petition in the circuit court in chancery ashing leave to intervene as a party plaintiff in this suit. Prior to denial of appellant’s motion to dismiss the circuit judge allowed such intervention. There has been no appeal from such holding; and further we think it was entirely proper. As a result there is now a proper party plaintiff in this case. It would be an idle ceremony, resulting in delay and unnecessary expense, for this Court to grant appellant’s motion to dismiss the bill of complaint after the intervention of a proper party plaintiff who in event of dismissal, could forthwith renew the suit by filing a like bill of complaint. See CL 1929, §§ 14018, 14021 ; and Windoes v. Colwell, 247 Mich 372.” King v. Emmons, 283 Mich 116, 126 (115 ALR 564).
We regard this case as decisive of the issue as to whether the prosecuting attorney is a proper party .and as tending in the direction of our view that he is the sole public .authority charged with this responsibility.
We find no authority which holds otherwise than that the prosecuting attorney is a proper party. Appellant’s reliance upon LaFond v. City of Detroit, 357 Mich 362, is misplaced. In regard to our current problem, that case held only that there was no necessity for the intervention of the prosecuting attorney •of another county than Ingham which had jurisdiction over the trust involved.
[234]*234The last question concerns the circuit court’s appointment of a guardian ad litem and his appearance in the will contest in the role statutorily assigned to the prosecuting attorney. This appointment was made on the petition of the prosecuting attorney who represented that his office finances and personnel were not adequate to engage in the contest he believed would be forthcoming.
This reasoning does not appeal to us. The fact that this estate involves a considerable sum of money is no excuse for prolonged and proliferated litigation over what are essentially simple issues of fact. Further, the statute makes the enforcement of this sort of trust a public duty to be borne at public expense.
The circuit bench in Muskegon county is charged with the duty of assuming “jurisdiction and control” over charitable trusts imposed on it by PA 1915, No 280, §§ 1 and 2, which we have quoted above. See In re Jones’ Estate, 334 Mich 392. This Court notes with approval the determination of the Muskegon bench to take fhese responsibilities seriously.
The statute, however, makes the prosecuting attorney the enforcement arm of the court in this regard. It also allows the court to appoint trustees where there are vacancies. We do not now seek to define the outer limits of the broad powers given the circuit court under this statute. We simply hold that it may not, even on the prosecuting attorney’s request, relieve him of his statutory obligations.
The appointment of the guardian ad litem for the purposes outlined in the circuit court order we regard as in conflict with the express provisions of the controlling statute. The order approving expenses and fees for the guardian ad litem must also be set aside.
Modified, affirmed, and remanded for further proceedings consistent with this opinion.
[235]*235Dethmers, C. J., and Carr, Kelly, Smith, Kavanagh, and Souris, JJ., concurred with Edwards, J.