Schultz v. Kent Probate Judge

North, J. This is a mandamus proceeding by which it is sought to compel the probate judge to vacate an order made in the estate of Otto Thum, deceased. The relief sought was granted in the circuit court. The probate judge has appealed. Thum, a resident of California, died in November, 1943, leaving a will admitted to probate in California in December, 1943. He also had a substantial estate, consisting of both real and personal property, in Michigan. Probate proceedings were instituted in the Kent county probate court wherein Edna Elliott was appointed administratrix. After *325 she had qualified she received an offer in writing from plaintiff Schultz of $21,000 for a parcel of real estate in Grand Bapids. The administratrix signed an acceptance of plaintiff’s offer in the following terms: “The above proposition is hereby accepted subject to approval and authority from Kent County Probate Court in the matter of the Estate of Otto Thum, Deceased.” Thereupon, with the consent of Marion I. Carlson, the only heir of the Thum estate, the administratrix petitioned Kent county probate court for authority to sell on the basis of the offer. After hearing, an order was entered on June 30, 1944, authorizing such sale, subject to confirmation, and requiring the administratrix to give a $20,000 bond. The bond was provided, but nothing further was done in the matter of selling the property to plaintiff. At the time the above proceedings were taken in the probate court the administratrix had no other offer for the property. Subsequently she received an offer of $23,500, and still later from a third party an offer of $24,500 was received. Thereupon the probate court on September 12, 1944, upon a report of the administratrix disclosing the subsequent offers, issued an order to show cause to each of the three would-be purchasers as to why the probate court’s former order authorizing the sale to plaintiff should not be set aside. In his answer to the order to show cause plaintiff set up that on the day prior to the probate court’s order to show cause he had filed a suit in chancery in the circuit court of Kent county wherein he sought specific performance of the sale of the property to him, and set forth that he had obtained an injunction from the circuit court restraining the administratrix from *326 tailing any further proceedings in the probate court other than to sell the property to plaintiff. The hearing on the order to show cause resulted in the probate court entering an order vacating his former order in “so far as the same pertains to. the particular sale of said property to said” Schultz. This order was dated by the probate judge December 29, 1944. Before starting the mandamus proceeding now before us, Schultz took an appeal from the above order to the circuit court and that appeal is still pending. On January 20, 1945, Schultz applied to the circuit court of Kent county for mandamus to compel the probate judge to vacate the order dated December 29, 1944, i. e., the order vacating the former order for a sale to Schultz for $21,000. After hearing, mandamus was issued as prayed. The present matter is the appeal of the probate judge as defendant in the mandamus proceedings from the judgment of the circuit court granting the writ. The order, which by the writ the probate judge was commanded to vacate, reads: “Now therefore, it is hereby ordered and adjudged that the license to sell real estate heretofore issued by this court on June 30, 1944, be and the same is hereby vacated and voided so far as the same pertains to the particular sale of said property to said original bidder, Arthur E. Schultz, Grand Rapids, Michigan, for $21,000.” The substance of the probate court’s order issued June 30,1944* which order was vacated by the foregoing order, was that the administratrix was authorized, empowered and licensed to sell to plaintiff herein the real estate in question for $21,000-“ subject to later confirmation by this Court of said administrator’s report of sale, as required by law.” Among appellant’s contentions are the following: (1) that the circuit court, in granting mandamus, ér *327 roneously deprived the prohate judge of his statutory power to set aside his former order; (2) that the order of the probate judge, setting aside his former order, is not subject to review by mandamus, because it was a lawful exercise of discretion and subject to review on appeal; (3) that the probate court in setting aside its earlier order was proceeding in a manner in which it had exclusive original jurisdiction; and (4) the decree in the circuit-court specific-performance suit by plaintiff herein against the heir and the administratrix, did not deprive the probate court of power to act. Because no question is raised in that particular, we may assume for the purpose of decision herein that the probate court had jurisdiction to enter its original order for the sale of this real estate. It should be noted that this order only authorized a sale by the administratrix “subject to later confirmation by this Court;” and also that the administratrix’s acceptance of plaintiff’s written offer to purchase was “subject to approval and authority from Kent County Probate Court in the matter of the Estate of Otto Thum, Deceased.” Hence, it would seem almost too clear for argument that no one could obtain vested rights incident to the contemplated probate court sale until such time as the administratrix reported the sale to the probate court and obtained confirmation thereof. On the hearing of the probate court’s order to show cause why its order of June 30, 1944, should not be vacated, the court found there were outstanding debts and other financial obligations of the estate such as the State’s claim for intangible taxes and inheritance taxes and the Federal government’s claim for estate taxes. And, it appears without controversy that subsequent to plaintiff’s offer to purchase the real estate the administratrix received other offers therefor which in amount were more than 10 per cent, in excess of *328 plaintiff’s offer. See Act No. 288, chap. 9, § 29, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-9 [29], Stat. Ann. 1943 Rev. § 27.3178 [489]), which directs a resale by the probate court in the event of the receipt of a bona fide offer exceeding 10 per cent, of the previous bid, exclusive of expense of a new sale, et cetera. Surely the circumstances noted were such as to justify the probate judge in the exercise of his discretion in setting aside his order of June 30,1944, whereby the administratrix was licensed to sell the property to plaintiff “subject to later confirmation.” The petition in the probate court incident to which the order to show cause why the court should not vacate the order it had made June 30, 1944, was filed September 5, 1944. This was within three months after the court had made the initial order, June 30, 1944. The power of a probate judge to set aside a former order is granted by express statutory provision which reads: “To that end he (judge of probate) may, upon the filing in said court of a petition therein, within 3 months of the original hearing, or of the rendering or making of any order, sentence or decree, as the case may be, and after due notice to all parties interested, grant rehearings, and may modify and set aside orders, sentences and decrees rendered in such court. ’ ’ Act No. 288, chap. 1, § 19, Pub. Acts 1939, as amended by Act No. 26, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 16289-1 [19], Stat. Ann. 1943 Rev. §27.3178 [19]). We think it clear the probate judge had jurisdiction to vacate the order he had made June 30, 1944; and it follows that the circuit judge was in error in issuing mandamus to compel the probate court to vacate his order dated December 29, 1944, whereby the order entered by the probate judge June 30, 1944, had been vacated. *329 In arriving at the above conclusion we are mindful appellee contends that the petition incident to which the probate judge issued the order to show cause was not sufficient to justify rehearing of the subject matter involved in the probate court’s order of June 30,1944, and that in any event the administratrix, because she had no financial interest in the sale of the property, was not a proper party to present such petition to the probate court. We are not in accord with appellee’s contentions in the respects just noted. Surely it was in accord with the proper discharge of the duties of the administratrix for her to advise the probate court of the receipt of higher offers for this parcel of real estate which constituted a part of the Thum estate, and under the statute (Act No. 288, chap. 9, § 29, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 16289-9 (29), Stat. Ann. 1943 Rev. § 27.3178 (489)]) it thereupon became the duty of the probate judge to determine whether the sale should proceed in-accord with plaintiff’s offer. The prayer of the petition by the administratrix necessitated reconsideration of the probate court’s former order of June 30,1944. The procedure adopted by the probate court in issuing an order to show cause was proper; and the presentation of her petition to the court by the administratrix was permissible because it pertained to the proper discharge of her duties as administratrix. Other questions presented by the briefs are not such as would alter our decision herein, and therefore are not reviewed. The judgment entered in the circuit court is reversed, with costs of both courts to appellant. Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. Starr, J., did not sit.