Mower v. Verplanke

Grant, J. Plaintiff brought ejectment for a life estate in certain land. In making his claim of title, it became necessary to introduce a foreign will. For this purpose he offered in evidence the exemplification from the record of the probate court of the county of Ottawa, in this State. This was excluded, upon the ground that the record showed no jurisdiction in that court. The petition contained the following allegation: [211] “ That said deceased departed this life in the state of New York, leaving a last will and testament, bearing date the 17th day of March, A. D. 1875, a certified copy of which is herewith deposited and filed in said court; that said will is in writing, and signed by said testator, and is attested and subscribed by three witnesses, and is executed according to the laws of the state of New York. “Your petitioner further shows that said will was duly proved and. allowed by the probate court of the county of New York, in the state of New York, according to the laws of the state of New York, on the 24th day of June, A. D. 1878; that authenticated copies of said will have been produced and filed in this court.” How. Stat. § 5806, is as follows: “When a copy of such will and the probate thereof, duly authenticated, shall be produced by the executor, or other person interested in such will, to the probate court, such court shall appoint a time and place of hearing, and notice shall be given in the same manner as in the case of an original will presented for probate.” The record does not contain the copies from the probate court of the county of New York. We must assume that they correspond with the petition filed with the probate court of the county of Ottawa. The petition is defective, in that it does not set forth a copy of the foreign probate. Pope v. Cutler, 34 Mich. 150. Judgment affirmed. Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.