Plaintiff filed a bill to set aside an order of the probate court determining heirship, assigning residue, accounting, and to recover property which he claims belongs to him as sole heir of his father, Alanson Driver, deceased. From a decree for defendants, plaintiff appeals. Plaintiff was absent from Flint, where his father lived and died. He had not been heard from for more than 10 years, and was supposed to be dead. He had no actual notice of his father's death or the administration of his estate.
(1) Plaintiff's rights are barred, if at all, by action of the probate court, in pursuance of Act No. 225, Pub. Acts 1925 (3 Comp. Laws 1929, §§ 15624-15653), which statute is valid and exclusive. Scott v. McNeal, 154 U.S. 34 (14 Sup. Ct. 1108);Cunnius v. Reading School District, 198 U.S. 458 (25 Sup. Ct. 721, 3 Ann. Cas. 1121); Blinn v. Nelson, 222 U.S. 1 (32 Sup. Ct. 1, Ann. Cas. 1913 B, 555). Plaintiff's *Page 49 right to recover may be barred only by compliance with the statute, which, being in derogation of the common law, must be strictly construed and rigidly followed.
(2) The probate proceedings which are claimed to have deprived plaintiff of his interest in his father's estate were without jurisdiction and void. Alanson Driver, plaintiff's father, died April 3, 1929. February 20, 1930, 10 months and 17 days after the father's death, his estate had been administered, the administrator's final account allowed, a determination of heirship had, and a distribution of the estate ordered, February 20, 1930, in which plaintiff was not included. Distribution was immediately made, and defendants' rights are based upon this order and distribution made in pursuance thereof. June 25, 1932, the bill of complaint was filed.
(3) Probate courts have general jurisdiction of testamentary and other probate matters. People, ex rel. Campau, v. WayneCircuit Court, 11 Mich. 393 (83 Am. Dec. 754); Church v.Holcomb, 45 Mich. 29; Alexander v. Rice, 52 Mich. 451;Morford v. Dieffenbacker, 54 Mich. 593; Schlee v. Darrow'sEstate, 65 Mich. 362; Fingleton v. Kent Circuit Judge,116 Mich. 211; Reason v. Jones, 119 Mich. 672. They were unknown to the common law, and derive all their power and authority from the statutes creating them. They must find warrant for all their acts and doings in the statute. Grady v.Hughes, 64 Mich. 540; Scholten v. Scholten, 238 Mich. 679. An absolute want of jurisdiction to perform a judicial act cannot be waived. Hull v. Hull, 149 Mich. 500; Attorney General, exrel. Wolverine Fish Co., v. A. Booth Co., 143 Mich. 89;Thompson v. Michigan Mutual Benefit Ass'n, 52 Mich. 522;Woodruff v. Ives, 34 Mich. 320; Attorney General, ex rel.Lockwood, *Page 50 v. Moliter, 26 Mich. 444; Moore v. Ellis, 18 Mich. 77; Farrand v. Bentley, 6 Mich. 281; 15 C. J. p. 844. The acts and doings of the probate court of Genesee county were not in conformity with the statute. They were directly contrary to its plain and positive provisions and prohibitions. The defect is apparent on the face of the probate proceedings, which proceedings ordering and directing the distribution of the personal property and the assignment of the real estate of plaintiff's deceased father to plaintiff's exclusion, were in clear violation of the statute governing the same.
(4) A probate court has no power or authority to set aside its own orders and decrees. Hitchcock v. Genesee Probate Judge,99 Mich. 128; Grady v. Hughes, supra; Holden v. Lathrop,65 Mich. 652. But a court of equity has jurisdiction to set aside an order of the probate court made without jurisdiction or authority. Frost v. Atwood, 73 Mich. 67 (16 Am. St. Rep. 560); Lothrop v. Duffield, 134 Mich. 485; Ewing v. Lamphere,147 Mich. 659 (118 Am. St. Rep. 563); Ombrello v. Railway Co.,252 Mich. 396.
(5) It is claimed the probate court had jurisdiction of the subject matter and the parties, and its finding and judgment is final and conclusive.
"Jurisdiction, in its fullest sense, is not restricted to the subject-matter and the parties. If the court lacks jurisdiction to render, or exceeds its jurisdiction in rendering, the particular judgment in the particular case, such judgment is subject to collateral attack, even though the court had jurisdiction of the parties and of the subject-matter. This meaning of jurisdiction is recognized by this court inSmith v. People, 2 Col. App. 99 (29 P. 924); Newman v.Bullock, 23 Col. 217 (47 P. 379); Tebbetts v. People, *Page 51 31 Col. 461 (73 P. 869); Tegeler v. Schneider, 49 Col. 574 (114 P. 288); Kilker v. People, 68 Col. 174 (188 P. 744). The supreme court of the United States, the ultimate authority, has so ruled in Windsor v. McVeigh, 93 U.S. 274;Ex parte Rowland, 104 U.S. 604; Ex parte Lange, 18 Wall. (85 U.S.) 163. See, also, Hovey v. Elliott, 145 N.Y. 126 (39 N.E. 841, 39 L.R.A. 449 and notes), id., 167 U.S. 409 (17 Sup. Ct. 841)." People, ex rel. Arkansas V. S. B. I. L. Co., v.Burke, 72 Col. 486 (212 P. 837, 30 A.L.R. 1085).
As said by the supreme court of the United States inWindsor v. McVeigh, 93 U.S. 274, 283, of the doctrine contended for, it "is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it."
Many of the illustrative cases are collected inHanson v. North Dakota Workmen's Comp. Bureau, 63 N.D. 479 (248 N.W. 680). See, also, 15 C. J. p. 729; 1 Bailey on Jurisdiction, § 22; 1 Freeman on Judgments (4th Ed.), § 264.
"An illustration of the distinction between jurisdiction of the subject-matter in the technical sense, rendering a judicial determination, however erroneous, binding till impeached in some of the ways provided by law and a mere assertion or pretense of jurisdiction without any real foundation for it whatever, rendering the judicial determination in respect thereto utterly void, is found in Melia v. Simmons, 45 Wis. 334 (30 Am. Rep. 746); Frame v. Thormann, 102 Wis. 653 (79 N.W. 39); Wisconsin Trust Co. v. Wisconsin Marine Fire InsuranceCo. Bank, 105 Wis. 464 (81 N.W. 642); Harrigan v.Gilchrist, 121 Wis. 127 (99 N.W. 909); Jordan v. Railway Co., *Page 52
125 Wis. 581 (104 N.W. 803, 1 L.R.A. [N. S.] 885, 110 Am. St. Rep. 865, 4 Ann. Cas. 1113); Griffith v. Frazier, 8 Cranch (12 U.S.), 9; Scott v. McNeal, 154 U.S. 34 (14 Sup. Ct. 1108);Cunnius v. Reading School Dist., 198 U.S. 458 (25 Sup. Ct. 721, 3 Ann. Cas. 1121)." Hanson v. North Dakota Workmen's Comp.Bureau, supra.
(6) It is contended plaintiff's rights are barred by the proceedings had in the probate court in his father's estate to determine heirship. In such proceedings the probate court shall, if the evidence be sufficient, "find and adjudge who are, or were, the heirs, minor heirs, or legal representatives of the deceased and entitled by the laws of this State to inherit the real estate of the deceased." 3 Comp. Laws 1929, § 15752. The statute also provides that such "finding and adjudication shall be entered on the journal of said court, and which entry, or a duly certified copy thereof, shall be primafacie evidence of the facts therein found." 3 Comp. Laws 1929, § 15752.
A subsequent section of the statute provides such certified copy of the finding and adjudication of the probate court may be recorded in the office of the register of deeds and "shall be prima facie evidence of the fact as to who were heirs of the said deceased person at the time of his death." 3 Comp. Laws 1929, § 15754.
Such finding and adjudication, in accordance with the statute, constitutes only prima facie evidence. Prima facie evidence under all the authorities is only evidence sufficient to establish a fact when it is not disputed or rebutted. 3 Bouvier's Law Dictionary (Rawle's 3d Rev.), p. 2683 and cases cited. It imports a certain result is temporarily established, but *Page 53 such result may be disputed or repelled. 49 C. J. p. 1346 and cases cited.
(7) The attack made upon the proceedings of the probate court is a direct attack.
"A direct attack upon a judgment is by appropriate proceedings between the parties to it seeking, for sufficient cause alleged, to have it annulled, reversed, vacated, or declared void." Pope v. Harrison, 16 Lea (84 Tenn.), 82.
See also, VanFleet's Collateral Attack, § 2, p. 4.
A bill in equity to set aside a judgment for fraud, mistake, or want of jurisdiction is a direct attack. VanFleet's Collateral Attack, § 2, p. 4.
(8) The statutes provide that proceedings to determine heirship, when concluded, constitute only prima facie evidence, and such prima facie evidence may always be rebutted and repelled. There was no attempt to follow Act No. 205, Pub. Acts 1925 (3 Comp. Laws 1929, § 15624 et seq.), the only statute under which plaintiff's rights might be barred. This act provides for the sale or disposition of the property of persons who have been absent from their last known place of abode for a continuous period of seven years, their whereabouts being unknown to those persons most likely to know, and who have not heard from such persons during such period of seven years; but under this act,
"Except for the purposes of paying taxes, special assessments, liens, insurance premiums, allowed claims for debts contracted by the absent person before his or her disappearance, or to prevent great depreciation on account of neglect, or to specifically fulfill contracts made by the absent person before his or her disappearance, no sale, mortgage, or other disposition of the property of the absent person shall *Page 54 be had until the lapse of one year after the appointment and qualification of the representative of his or her estate." 3 Comp. Laws 1929, § 15632.
"No distribution nor assignment to beneficiaries of the property or the proceeds thereof of the absent person shall be made in any event until after the lapse of one year after the appointment and qualification of the representative of his or her estate; nor shall such distribution or assignment be made until after the lapse of three years after the appointment and qualification of the representative of his or her estate, unless the distributee or assignee execute and deliver to the representative a surety company bond in a penal sum not less than the value of the property distributed or assigned and for such additional amount as the court may prescribe, to be approved by the probate judge" — conditioned as provided by statute. 3 Comp. Laws 1929, § 15633.
(9) 3 Comp. Laws 1929, § 15639, provides:
"Whenever any person shall die testate or intestate, leaving property in the State of Michigan to be administered, and one or some of the apparent beneficiaries of his or her estate is a person who has been absent from his or her last known place of abode for the continuous period of seven years with his or her whereabouts unknown to those persons most likely to know thereof, and who has not been heard from by such persons during said period, no distribution or assignment of that portion of the estate which would be distributed and assigned to the absent person, if alive, shall be made until the lapse ofthree years after the death of the decedent."
Section 15641, 3 Comp. Laws 1929, provides for giving notice that "on a day certain after the lapse of said period of threeyears an order of assignment and distribution will be made by the court of the portion of the estate aforesaid to certain persons, naming *Page 55 them and their relationship, if any, to the decedent and the proportions of their shares in the portion of the estate to be distributed."
Section 15642, 3 Comp. Laws 1929, provides:
"The notice described in the next preceding section shall be published in some newspaper in general circulation in the county once each calendar month for four months prior to the month containing the day certain when the order is to be made," etc.
These statutes were not complied with. Plaintiff's interest in his father's estate was turned over to others, illegally, by an invalid order of the probate court, issued without jurisdiction. The distribution of the estate made by defendants was in violation of plaintiff's rights. It was made in direct violation of statute. It amounts to taking his property without due process of law. To uphold the action of the probate court it is necessary to hold prima facie evidence conclusive evidence; the positive prohibition of the statute an implied authorization; that the probate court has full power and authority to do that which by statute it is prohibited from doing at all.
(10) The probate court had no jurisdiction to make the order of distribution. The administrators of the estate had no right to make distribution. There was no valid assignment of plaintiff's interest in the real estate. The action of the probate court and the proceedings taken amount to a confiscation of plaintiff's property. Decree should be reversed, with costs. Decree should be entered for plaintiff.
McDONALD, C.J., and NORTH and FEAD, JJ., concurred with POTTER, J. *Page 56