In Re Wilkie's Estate

The dispute involved in this appeal is over the sufficiency of the service of notice of appeal from probate court to circuit court. Appellants Essie I. Camp and Flossie O. Vollendorf, who are the only heirs and legatees of deceased, filed their motion in circuit court to dismiss the appeal *Page 188 from probate court. The circuit judge held the service of notice of appeal sufficient and denied the motion to dismiss the appeal. From the order of the circuit judge denying their motion to dismiss, appellants take their appeal to this court in the nature of certiorari and mandamus. There was a showing before the probate judge that the deceased left real estate of the value of $7,800 and personal property of the value of $3,500. On May 23, 1945, the probate court appointed James C. Camp, the executor designated in the will, as executor, but fixed his bond at $100,000, with a requirement that "the expense of the bond be his expenditure." James C. Camp appealed to the circuit court from that part of the probate order fixing the amount of the bond. On June 6, 1945, the probate judge ordered as follows: "It is ordered that said appeal be and the same is hereby approved, and that said appellant give notice of said appeal and of the hearing thereof in said circuit court to Flossie O. Vollendorf and Essie I. Camp, the adverse parties, by personal service upon them or their attorney of record of a copy of said claim of appeal." Failure to comply with this order would require dismissal of the appeal. See Act No. 288, chap. 1, § 40, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1[40], Stat. Ann. 1943 Rev. § 27.3178[40]); also, Court Rule No. 75, § 4(b) (1945). On June 14, 1945, William S. McDowell, attorney for James C. Camp, mailed to Wilfrid L. Burke, attorney, a copy of claim of appeal from the order of the probate court of May 23, 1945. McDowell made an affidavit to that effect and attached a photostatic copy of the letter of transmittal of the claim of appeal and a photostatic copy of a reply to the letter enclosing the notice of appeal, which reply was *Page 189 written by Wilfrid L. Burke, the attorney, dated June 15, 1945, returning McDowell's letter. The letter from McDowell to Burke, dated June 14, 1945, is as follows: "Enclosed herewith find copy of appeal from the order of the probate court of May 23, 1945, in the estate of John F. Wilkie, deceased. As stated yesterday, it might be well if you entered a general appearance in said estate for your client, Essie I. Camp. "I will endeavor to have personal service of said appeal made upon Mrs. Vollendorf." The reply by Wilfrid L. Burke, dated June 15, 1945, and addressed to attorney McDowell, is as follows: "I am returning herewith claim of appeal in the above cause. Since no appearance has been filed in said cause which would make me `attorney of record' for either Mrs. Camp or Mrs. Vollendorf, I cannot accept service for either of them. Personal service pursuant to the court order should be made on these two ladies." The record discloses that on March 14, 1945, attorney Burke wrote to an attorney, Raymond LaBar of Detroit, as follows: "Your client, Mr. James Camp, was named executor in the will of Mr. Wilkie, who recently died. Mrs. Camp and her sister prefer that some one else act in his stead. I am therefore enclosing a declination to act, and ask that you obtain his signature for us." On May 22, 1945, attorney Burke swore to and filed in the probate court an affidavit which in part is as follows: "Wilfrid L. Burke, being duly sworn, deposes and says that he is attorney for the petitioner and the *Page 190 two legatees named in the will of the deceased. Deponent further says that he served a true copy of the attached notice upon Essie I. Camp and Flossie O. Vollendorf, the sole legatees and sole heirs at law of John F. Wilkie, deceased, on March 31, 1945." Attorney Burke in his letter returning the notice mailed to him says that he is not the attorney of record for either Mrs. Camp or Mrs. Vollendorf. However, his filing of the above affidavit in which he recites that he is attorney for the "two legatees named in the will of deceased," who are Mrs. Camp and Mrs. Vollendorf, and who are also the appellants whom he represents on this appeal, stands as a record in the probate court that he was such attorney, at least on May 22, 1945. On June 14, 1945, when the notice was mailed, there was no indication to the probate court nor to Mr. McDowell, the attorney for Mr. Camp, that Mr. Burke no longer represented the two parties in question. While Mr. Burke denied in the circuit court that he was the attorney of record at the time he received the notice, he makes no point of such claim in his statement of questions involved on this appeal. Under all the circumstances, we conclude that he was attorney of record for the appellants in probate court at the time he received the notice by mail. There remains only the question whether the service upon him was sufficient. It plainly appears that Mr. Burke, a practicing attorney, personally received the notice in question, that he personally knew the contents, purport, tenor and substance of the notice. It is not questioned that the notice was in writing and sufficient in form. "Delivery of notice of an intention not to abide by an award of the industrial accident commission, sent through the registered mails, and actually delivered *Page 191 to defendant in person is giving of notice by `personal service' within Vernon's Ann. Civ. St. Supp. 1918, art. 5246-44, requiring such notice as condition precedent to action in the district court." Hood v. Texas Employers' Ins. Ass'n (Tex.Civ.App.) (syllabus), 260 S.W. 243. "The delivery of the bill of exceptions to said attorneys by Wells Fargo Co. made the service a personal service. * * * `The delivery of the notice through such agency (Wells Fargo Co.) renders the service personal, and the proof of such delivery establishes a personal service.' Heinlen v. Heilbron, 94 Cal. 636,640 (30 P. 8)." Kramm v. Railroad Co., 22 Cal.App. 732 (136 P. 523, 528). See, also, McKenna v. State Ins. Co. of Des Moines,73 Iowa, 453 (35 N.W. 519), in which case the court construed a statute which provided, "such notice may be served either personally, or by registered letter addressed to the insured at his post-office address, named in or on the policy," in reference to which statute the court says, at p. 520: "If the plaintiff's position is correct, that the service by mail is not made until the actual delivery of the notice to the insured, then that service would be personal service, and it would follow that the provision for service by mail is superfluous." (Italics supplied.) Our decision in Hosey v. Ionia Circuit Judge, 120 Mich. 280, is not controlling of the instant case, but instead is plainly distinguishable. In that case the only proof of service was that the notice of appeal was properly mailed to James Hosey;but there was no proof that he received the notice so mailed. Seemingly for that reason it was properly held that mere mailing did not constitute personal service. But in the instant case the attorney of record for the appellants in this court admitted he received, read *Page 192 and understood the notice of appeal which was sent to him through the mail. This fact stands undisputed in the record. Under such circumstances the service should be held to be good as personal service upon the attorney. In the case of Sokup v. Davis' Estate, 206 Mich. 144, cited in the opinion of Mr. Justice BOYLES, the defect in service pertained to the time limited for service, and is no authority on the proposition in dispute in the instant case, that the service became personal service when the recipient personally and understandingly received the written notice. The notice in the instant case was complete. Our attention has not been directed to any decision holding that when a party or an attorney of record personally receives written notice, he is not considered as personally served. The order appealed from should be affirmed. Costs to the appellee. BUTZEL, C.J., concurred with REID, J.