"The probate court is ruled by equitable principles." In re Cox Estate, 284 Mich 628, 633; 279 NW2d 913 (1938); see also Matter of Estate of Williams, 164 Mich App 601, 608-609; 417 NW2d 556 (1987) ("Over matters of which it has jurisdiction, the probate court has the same powers as the circuit court to make any proper order, including the power to provide equitable relief."), citing MCL 600.847. MCL 700.1302(a)(i), (ii), and (iii) confer "exclusive legal and equitable jurisdiction" on probate courts in matters related to the "internal affairs of the estate"; administering, distributing, and settling a decedent's estate; and "[d]eclaration of rights that involve an estate, devisee, heir, or fiduciary." (Emphasis added.)

Mogk v. Stroecker, 243 Mich. 668, 220 N.W. 730 (1928).Barnett, 1995 WL 871197, at 4 (quoting In re Estate of Williams, 164 Mich. App. 601, 607-08, 417 N.W.2d 556, 559 (1987)). Even following those legal principles, Michigan courts have sometimes found evidence to be sufficient to overcome the presumption of validity of a subsequent marriage.

John Hancock Mut. Life Ins. Co. v. Willis, 438 F.2d 1207, 1208 (6th Cir. 1971); In re Estate of Adams, 362 Mich. 624, 107 N.W.2d 764, 765 (Mich. 1961); In re Estate of Pope, 205 Mich.App. 174, 517 N.W.2d 281, 282 (Mich.App. 1994); In re Estate of Williams, 164 Mich.App. 601, 417 N.W.2d 556, 559 (Mich.App. 1987). This presumption is particularly strong where there are children born of the later marriage.

But Michigan law also creates "a strong presumption of validity in favor of a later ceremonial marriage that is attacked on the ground that one of the parties was already married to another." Durden , 448 F.3d at 925 (citing John Hancock Mut. Life Ins. Co. v. Willis , 438 F.2d 1207, 1208 (6th Cir. 1971) ; In re Estate of Adams , 362 Mich. 624, 107 N.W.2d 764, 765 (1961) ; In re Estate of Pope , 205 Mich.App. 174, 517 N.W.2d 281, 282 (1994) ; In re Estate of Williams , 164 Mich.App. 601, 417 N.W.2d 556, 559 (Mich. App. 1987) ). This presumption becomes "particularly strong" if children are born of the later marriage.

However, in that case the court held that the first wife was not estopped from asserting her spousal rights regardless of any suspicions or knowledge concerning the second marriage. Id. at 177-78, 517 N.W.2d 281. The case cited in Pope as standing for the estoppel principle is In re Williams Estate, 164 Mich. App. 601, 417 N.W.2d 556 (1987). In Williams, estoppel applied because decedent's former wife "had deserted him and had married another without bothering to divorce him."

Therefore, the fact that Bernstein allowed the loan documents to be submitted to Flagstar under the agreement and obtained the benefit therefrom serves as an admission that Bernstein "originated" such applications, and he is estopped from asserting otherwise. See OCGA § 24-4-24(8); Walker v. Sutton, 222 Ga. App. 638, 639(1) ( 476 S.E.2d 34) (1996); see also Matter of Estate of Williams, 164 Mich. App. 601 ( 417 N.W.2d 556) (1987). Further, in his answer to the complaint and through his deposition testimony, Bernstein admitted the following: (a) Greene was not a licensed mortgage broker; (b) Bernstein was aware that Greene could not obtain a broker's license because of his history of writing bad checks; (c) Bernstein supervised the preparation of the loan documents and confirmed some of the data on the loans prior to submission to Flagstar; (d) Bernstein's broker's license provided the authority for submission of the loan documents to Flagstar; (e) the loan documents were submitted pursuant to the correspondent agreement; (f) the loan documents did not contain the name of any originator or broker other than Bernstein or GMA; (g) Bernstein received the origination fee directly from the closing attorneys under the contract; (h) Bernstein retained 20 percent of the origination fee and gave Greene 80 percent; (i) the loan documents contained fraudulent material; and (j) the borrowers on t

However, "[t]he presumption is not rebutted by testimony of the first spouse that, to the best of her knowledge, her husband never attempted to procure a divorce from her and that she had never received or been served with divorce papers, .. . or by testimony that a search was made in the county wherein decedent was known to have resided and no record of divorce was discovered, . . . [because t]he possibility exists that an absent spouse could have obtained a divorce elsewhere." In re Williams Estate, 164 Mich. App. 601, 607-608; 417 N.W.2d 556 (1987) (citations omitted). Petitioner argues that the probate court's decision that the presumption had been rebutted was against the great weight of the evidence and clearly erroneous.

However, several cases from other jurisdictions stand for the proposition that a subsequent remarriage by a person in the position of Melvina Taylor constitutes a repudiation of the prior alleged marital relationship, thus extinguishing her status as a surviving spouse. In In re Estate of Williams (1987), 164 Mich. App. 601, 417 N.W.2d 556, the Michigan Court of Appeals applied estoppel principles in holding that the decedent's second wife was precluded from establishing her status as surviving spouse in view of her conduct after deserting the decedent. A reading of the facts reveals that the second wife, once deserting the decedent, remarried without obtaining a divorce and without ascertaining to a reasonable degree of certainty whether the decedent had in the alternative divorced her. The second wife later learned of the decedent's marriage to his fourth wife, yet remained silent until his death.

Parker, 190 Va. at 185, 56 S.E.2d at 216; see also Hewitt v. Firestone Tire Rubber Co., 490 F.Supp. 1358, 1362 (E.D.Va. 1980). See, e.g., Smith v. Heckler, 707 F.2d 1284, 1285-86 (11th Cir. 1983) ("one of the strongest presumptions in the law"); Gordon v. R.R. Ret. Bd., 696 F.2d 131, 132 (D.C. Cir. 1983) ("one of the strongest in the law"); McKnight v. Schweiker, 516 F.Supp. 1102, 1108 (D.Md. 1981) ("among the strongest in the law"); Williamson v. Williamson, 101 A.2d 871, 872 (Del.Super.Ct. 1954) ("the strongest of the several presumptions applicable in annulment actions"); In re Williams Estate, 164 Mich.App. 601, 417 N.W.2d 556, 559 (1987) ("a very strong presumption"); Troxel v. Jones, 45 Tenn.App. 264, 322 S.W.2d 251, 257 (1958) ("one of the strongest presumptions known to the law"); In re Pilcher's Estate, 114 Utah 72, 197 P.2d 143, 148 (1948) (recognizing the "strength given to this presumption, over and above that ordinarily given a presumption"). Given the strength of the presumption, "many courts place a special burden of persuasion upon the party attacking the validity of the second marriage by declaring that the presumption can only be overcome by clear, cogent, and convincing evidence."