Metcalfe v. Carr

Hooker, C. J. The petitioner is the widow of Samuel Miller, who died testate in Detroit about December 1, 1881. The will was duly probated. Its provisions for petitioner were: (1) A devise of $10,000, to be held, controlled, and used by her during her life; whatever should remain at her death to become a part of his estate. (2) After providing legacies for several persons, he directed that the rest, residue, and remainder of all the property, real, personal, and mixed, should go to his heirs at law as the same would be distributed by the law of descent of the State of Michigan as it then was. In March, 1883, the probate court made an order that the residue of real property be adjudged and decreed to belong to the petitioner [124] during her natural life. This property consisted of several tracts and lots which are described in the petition. The petition was filed under 3 Comp. Laws, § 9234 et seq., and alleges that the estate has been closed since April, 1884; that she is owner by purchase of one seventy-second of the fee, in addition to her life estate. It names the other persons interested in the fee, alleges a necessity for sale, and prays that it be sold, and the proceeds divided, as “provided by the statute.” This petition was filed in the circuit court in chancery. An order to show cause was served on some of the defendants, and, others being nonresident, publication was made. Some of the defendants appeared and answered. At least one questioned the jurisdiction. Several persons mentioned in the petition as parties in interest did not appear. Upon their motion the proceedings were dismissed, with costs, upon the following grounds: 1. Because it did not appear that the petition was under oath, inasmuch as there was no clerk’s certificate to the official character of the notary, and verification having been made in California. 2. It was not made to appear that the order was published in the county where petitioner resided; i. e., Los Angeles qounty, Cal. 3. Because it appears by the will of Samuel Miller, a copy of which is attached to the petition herein, that the heirs at law of said Samuel Miller were devised the same estate in the land mentioned in said petition as they would take by descent had the said Samuel Miller died without a will, and because the statute, as amended, entitled “An act to authorize the sale in certain cases of land devised or bequeathed by will without power.of sale,” is not applicable to the lands set forth in the petition. The first point made is sufficient to require the affirmance of the order dismissing the petition. The case is ruled by the following cases: Platt v. Stewart, 10 Mich. 260; Coleman v. Stearns Manfg. Co., 38 Mich. 34; Colton v. Rupert, 60 Mich. 325 (27 N. W. 520); Adams v. Wayne Circuit Judge, 98 Mich. 51 (56 N. W. 1051). [125] As some of the parties are not before the court, we do not dispose of the other questions. The order is'-affirmed. Moore, Grant, and' Montgomery, JJ., concurred. Carpenter, J., did not sit.