Appellant is the second wife of deceased, who left surviving children by his first marriage, there being no issue of the second marriage. She appeals from an amended order of the circuit court of Wayne county, based upon 3 Comp. Laws 1929, §§ 15564, 15726 (Stat. Ann. §§ 27.2664, *Page 43 27.2891), which have to do with the share of the personalty in a testate estate which passes to a widow who elects to take against her husband's will. This order provides that the widow shall receive, under her election, the residue of her deceased husband's testate personalty as follows:
"One-third (1/3) part thereof until the same shall amount to $5,000, by virtue of her aforesaid election in accordance with the statute in such case made and provided, and to Myrtice M. Nolan, legatee, a two-thirds (2/3) part thereof in said personal property until the sum shall amount to $10,000, in accordance with the provisions of the will. And that any residue in personal property in excess of $15,000 be assigned to Doris B. Kirkpatrick, widow of said deceased, a one-sixth (1/6) part thereof, and to Myrtice M. Nolan, five-sixths (5/6) parts thereof. * * *"
Appellant urges that, because "the Supreme Court of the United States, of its own initiative and without petition or argument on the point by the parties litigant, disapproved a 96-year old doctrine that had been previously invoked, approved, and followed by that court and lower courts since its decision of Swift v. Tyson, 16 Pet. (41 U.S.) 1, in 1842," we should, on the strength of the reasoning in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (58 Sup. Ct. 817, 114 A.L.R. 1487 [1938]), set aside this order.
The order entered is in accordance with the well-established law, stated in Phillips v. Phillips, 91 Mich. 433 (1892). See, also, In re Estate of Pulling, 93 Mich. 274. The amended order is affirmed, with costs to appellee.
SHARPE, POTTER, CHANDLER, NORTH, McALLISTER, WIEST, and BUTZEL, JJ., concurred. *Page 44