Emerson v. Wayne Circuit Judge

1 Citing case

  1. Barber v. Wayne Circuit Judge

    222 N.W. 702 (Mich. 1929)   Cited 2 times

    Before the enactment of the act of 1923, this court quite uniformly held that persons named as executors in wills and special administrators appointed by the probate court did not possess such an interest in the estate as to authorize them to expend money of the estate in a will contest, their duty being to conserve the estate and not to engage in a contest between heirs on the one hand and devisees and legatees on the other, in litigation which concerned them alone; and this court went so far as to treat expenditures of the money of the estate in a will contest as a dissipation of the assets of the estate. Zimmer v. Saier, 155 Mich. 388 (130 Am. St. Rep. 575); In re Keene's Estate, 202 Mich. 646; Stover v. Wayne Probate Judge, 219 Mich. 566; In re Doty's Estate, 231 Mich. 115. And in Emerson v. Wayne Circuit Judge, 232 Mich. 338, it was held that the administrator was not interested in litigation involving the validity of a will, and was not the "adverse party" under the statutory requirements providing for appeals from probate court. Unless the act of 1923 has, upon a proper order of the probate court being made, clothed the person named as executor in the will with greater authority and a greater interest in will contests than before existed, it must be held, following the cases cited, that his interest is not sufficient even with the added duties and his position in the litigation does not make him the "adverse party" to the contestants who are seeking the disallowance of the will. We think the legislature, which manifestly was familiar with our holdings, intended a change, and that the language of the act clearly so indicated and provided.