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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 283 Howard Graves Meredith, March 25, 1932, made and executed his last will and testament, naming Detroit Trust Company and James O. Murfin executors and trustees thereof. August 28, 1934, he executed a codicil thereto naming as executors and trustees the Detroit Trust Company, James O. Murfin and Frederick W. Campbell. Substantially the only change in the will by the codicil was the naming of Mr. Campbell as the additional executor and trustee. Mr. Meredith died December 6, 1934. The will and codicil were before the probate court of Wayne county.
By statute, every person having the custody of the will of the deceased person must, within 30 days after knowledge of the death of the testator, deliver the same into the probate court having jurisdiction, or to the person named in the will as executor. 3 Comp. Laws 1929, § 15531. It is then the duty of the executor or executors named in the will to inform the probate court if they will accept the trust. 3 Comp. Laws 1929, § 15532. If the will is contested, the executor named in the will has authority to employ counsel to sustain the will. 3 Comp. Laws 1929, *Page 285 § 15532. No petition by an executor or by any other person is necessary to institute probate proceedings. 3 Comp. Laws 1929, § 15537, as amended by Act No. 321, Pub. Acts 1931. Section 15541, 3 Comp. Laws 1929, provides if there is no contest of the will, the probate court may grant probate on the testimony of one subscribing witness.
No question is made as to the validity of the original will. The only question affecting the merits concerns the validity of the codicil.
Upon the hearing in the probate court upon the admission of the will and codicil to probate, Mr. Murfin, one of the executors named in the original will, testified the doctorstold him Mr. Meredith was mentally incompetent to transact business when the codicil was executed, and Margaret Williams, testator's housekeeper, testified she thought Mr. Meredith knew what he was doing when the codicil was executed and "the doctor examined him before it was done."
Mr. Murfin had petitioned that the will be admitted to probate. Mr. Campbell had petitioned for the admission of the codicil to probate. Mr. A.W. Sempliner was attorney for Mr. Campbell, and Mr. James O. Murfin, executor, appeared on behalf of the original will. An agreement was made between Mr. Sempliner and Mr. Murfin in open court to submit the question of the mental competency of the testator to a leading Detroit attorney. This matter was apparently taken up with Mr. Monaghan who interviewed witnesses and concluded and found the testator did not have sufficient testamentary capacity to make and execute the codicil in question. There is no proof any testimony under oath was taken before Mr. Monaghan. June 18, 1935, Mr. William Sempliner, son of A.W. Sempliner, appeared *Page 286 in the probate court of Wayne county where the following occurred:
"Mr. William Sempliner: This is a petition for rehearing of the will and codicil of Howard G. Meredith, deceased.
"Judge Murfin wants to express his regrets for not being here.
"He is credited with this statement:
" 'The petition for probate of the codicil to the last will and testament of the deceased was filed. At the previous hearing the codicil was denied probate, no one appearing to prove it. Rehearing was granted and by an agreement proofs were taken before Peter J. Monaghan, who filed an opinion that the deceased didn't have testamentary capacity to execute the codicil. Therefore an order denying probate to the codicil should be entered.'
"The Court: It has been granted.
"Mr. Sempliner: Yes. Rehearing has been granted.
"The Court: Order re-entered admitting will and denying codicil probate."
An appeal was taken from the probate court to the circuit court and August 5, 1935, an exemplification of the record of the probate court filed in the circuit court. August 26, 1935, a motion to dismiss the appeal was filed which was opposed. September 6, 1935, Mr. Campbell filed a demand for a jury trial. September 12, 1935, the appeal was dismissed upon the ground the order of the probate court appealed from was entered by consent of all parties involved including the appellant. An appeal to this court was taken and perfected.
It is claimed the trial court erred as a matter of law and fact in dismissing the appeal; in holding the probate of the will or codicil was or could be the proper subject of common-law arbitration or submission to one other than the court; in holding the probate judge could delegate his power and duty of hearing and determining a petition for the probate *Page 287 of a codicil to one other than the court; in denying appellant's contention the probate of a will or codicil is a proceeding in rem which may not be made the subject of common-law arbitration or consent; in holding in effect the parties to the so-called common-law arbitration had agreed to abide by the award; in holding it was not necessary the will or codicil be proved and allowed or denied in the probate court in accordance with the statutes; in holding in effect the testamentary capacity of Howard Graves Meredith was or could be a proper subject matter to be determined by consent without due proof thereof; in holding the so-called common-law arbitration or submission could be the basis of a valid consent order; in holding that William Sempliner, June 18, 1935, then attorney for Frederick W. Campbell, consented to the entry of the probate court order on that date and thereby precluded his client from appealing therefrom; in holding it was not necessary there be an agreement to abide by an award rendered pursuant to a common-law arbitration arrangement where the submission is by parol; in refusing to hold the order of June 18, 1935, was but a part and parcel of and predicated upon the agreement by counsel to submit the question of the testamentary capacity of Howard Graves Meredith at the time of the execution of said codicil to Peter J. Monaghan for determination; in determining the probate court order entered June 18, 1935, denying the codicil to probate was a valid consent order from which no appeal could be taken by Frederick W. Campbell, appellant; in determining disputed questions of fact framed by appellees' motion to dismiss the appeal of Frederick W. Campbell and the answer to said motion and the affidavits of Frederick W. Campbell and Abram W. Sempliner in support of said answer, and in denying appellant's *Page 288 demand for a jury trial of said disputed questions of fact in violation of Court Rule No. 18, § 3 (1933). These 13 assignments of error are condensed into 10 questions said by appellant to be involved.
Appellant contends the probate of a will or codicil is a proceeding in rem to which the whole world is a party and which may not properly be made the subject of common-law arbitration or consent; it is necessary a will or codicil be proved and either allowed or denied in the probate court; a probate judge may not delegate his power and duty of hearing and determining a petition for the probate of a codicil to one other than the court; the matter of the probate of a codicil is not the proper subject of common-law arbitration or submission to one other than the court; the testamentary capacity of Howard G. Meredith was not the proper subject matter to be determined by consent of the parties without due proof thereof in the probate court; the submission to Peter J. Monaghan of the question of Meredith's testamentary capacity and Monaghan's opinion could not be made the basis for a valid consent order in the probate court; counsel for appellant did not consent to the entry, June 18, 1935, of an order denying the codicil of Meredith to probate and preclude an appeal therefrom by Campbell; the order of the probate judge denying probate to the codicil of Meredith was a part and parcel of and predicated upon the agreement between counsel to submit the question of the testamentary capacity of Meredith to Monaghan for determination; the validity of the probate order of June 18, 1935, denying probate to Meredith's codicil could not be conditioned upon the submission of the question of Meredith's mental competency to Peter J. Monaghan; that the entry of *Page 289 the order is a part of and cannot be divorced from the agreement to arbitrate or submit, which entire agreement appellant contends is void and of no effect; the circumstances connected with the entry of the order of June 18, 1935, denying the Meredith codicil probate presented a question of fact for the jury with respect to consent, or lack of consent, to such entry, and appellant was entitled to a jury trial.
Appellees make a counter statement of questions involved, contending the order of the probate court of June 18, 1935, denying probate to the purported codicil was a consent order and the arbitration was valid and binding.
The probate court derives none of its jurisdiction or power from the common law, Grady v. Hughes, 64 Mich. 540, but must find the warrant for all its doings in the statute. Grady v.Hughes, supra; U.S. Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668; Nolan v. Garrison, 156 Mich. 397;Rodgers v. Huntley, 166 Mich. 129.
A judgment by consent cannot ordinarily be set aside or vacated by the court without the consent of the parties thereto, Commonwealth v. Helm, 163 Ky. 69 (173 S.W. 389);Karnes v. Black, 185 Ky. 410 (215 S.W. 191); McEachern v.Kerchner, 90 N.C. 177; Deaver v. Jones, 114 N.C. 649 (19 S.E. 637), for the reason it is not the judgment of the court but the judgment of the parties, McEachern v. Kerchner, supra;Karnes v. Black, supra; Paine v. Doughty, 251 Ill. 396 (96 N.E. 212); 34 C. J. p. 130.
The probate of a will is a proceeding in rem, Allison v.Smith, 16 Mich. 405; People, ex rel. Frazer, v. Wayne CircuitJudge, 39 Mich. 198; Stevens v. Hope, 52 Mich. 65; In reWill of Dardis, 135 Wis. 457 (115 N.W. 332, 23 L.R.A. [N. S.] 783, 128 Am. St. Rep. 1033, 15 Ann. Cas. 740); In re Will ofRice. *Page 290 150 Wis. 401 (136 N.W. 956,137 N.W. 778); Graef v. Kanouse,205 Wis. 597 (238 N.W. 377), one which determines the condition or status of the estate itself, Holcomb v. Kelly, 114 N.Y. Supp. 1048.
Liberty of contract is an essential of that liberty protected by the Constitution. Allgeyer v. State of Louisiana,165 U.S. 578 (17 Sup. Ct. 427); 12 C. J. p. 1200. All persons of full age and sound mind and under no restraint may enter into any contract not prohibited by law or opposed to public policy in relation to any rights which they have. The rule is firmly settled in this State that estates of deceased persons may be settled between all those interested competent to contract without the intervention of the probate court. Needham v.Gillett, 39 Mich. 574; Lasley v. Preston, 132 Mich. 208;Powell v. Pennock, 181 Mich. 588. That question is not here. There is no controversy over how testator's estate should be settled. The only question is who shall act as executor of his last will and testament which includes the original instrument and any legal codicils thereto duly admitted to probate.
Assuming there was an agreement between the executors named in the will and the executor named in the codicil, the question is whether they had any power or authority to agree in open court to submit the question of the mental competency of the testator to a third person for determination. There is no precedent for such proceeding. The statutes contemplate a hearing before the probate court and a determination by the probate court of the testamentary capacity of the testator. 3 Comp. Laws 1929, § 15541. Under the statute, notice of the time and place of proving the will and the codicil must be given and this notice is usually given by publication to all persons interested, and the date fixed by such *Page 291 notice is "when all concerned may appear and contest the probate of the will." 3 Comp. Laws 1929, § 15537, as amended by Act No. 321, Pub. Acts 1931. No order or rule of court named Mr. Monaghan as the person before whom testimony in relation to the mental competency of the testator was to be taken and the testimony, if any adduced, was not taken before him by deposition.
In case of the probate of foreign wills "it shall appear to the court that the instrument ought to be allowed in this State," 3 Comp. Laws 1929, § 15545, before an order admitting it may be made. When a will of a resident testator is offered for probate and shall have been duly allowed, the probate court shall issue letters testamentary. 3 Comp. Laws 1929, § 15566.
The sole authority to pass upon the testamentary capacity of the testator is vested by statute in the probate court. There is some apparent conflict in the decided cases about the authority of a person named as an executor of a will or codicil having such an interest in testator's estate as to permit him to contest a subsequent codicil. L.R.A. 1918 A, pp. 467, 468. These cases divide generally upon the question whether in the particular jurisdiction probate proceedings are regarded as suits between parties to establish or set aside a will, or whether they are regarded, as in this State, as proceedingsin rem, that is, proceedings to establish and declare the status of the estate, binding on the world. The great, if not the universal, weight of authority where probate proceedings are held to be proceedings in rem is that the executor has no such interest. Meyer v. Fogg, 7 Fla. 292 (68 Am. Dec. 441); Inre Langevin, 45 Minn. 429 (47 N.W. 1133); Brewer v.Barrett, 58 Md. 587; Helfrich v. Yockel, 143 Md. 371 *Page 292 (122 A. 360, 31 A.L.R. 323); Reid v. Vanderheyden, 5 Cow. (N.Y.) 719;In re Stewart's Estate, 107 Iowa, 117 (77 N.W. 574); Johnston v. Willis, 147 Md. 237 (127 A. 862).
Parties cannot by agreement supersede the essential regulations made by law for the investigation of causes, and by stipulation set aside the statutory method prescribed for determining the mental capacity of the testator.Harris v. Sweetland, 48 Mich. 110.
The right to contest a will is, in this State, purely statutory and can be exercised only in accordance with and within the limitations prescribed by statute. Lewark v. Dodd,288 Ill. 80 (123 N.E. 260); Selden v. Illinois Trust SavingsBank, 239 Ill. 67 (87 N.E. 860, 130 Am. St. Rep. 180); Storrs v. St. Luke's Hospital, 180 Ill. 368 (54 N.E. 185, 72 Am. St. Rep. 211); Spaulding v. White, 173 Ill. 127 (50 N.E. 224).
The issue therein having been specifically prescribed by statute cannot be varied or restricted by the parties thereto.Dew v. Reid, 52 Ohio St. 519 (40 N.E. 718).
The power to determine the testamentary capacity of the testator could not be conferred upon Mr. Monaghan even by consent of the parties to the contest if notice of contest had been filed.
Parties even to a civil cause may not stipulate for the determination of the same by the trial court in a manner contrary to the statutes or rules of court. Kohn v. ColumbiaNational Bank, 165 Ill. 316 (46 N.E. 208).
"Parties cannot by contract change the mode of judicial proceeding. * * * (They cannot) make a binding agreement, requiring a controversy to be tried in court out of the ordinary mode of proceeding. * * * No agreement would be valid, that *Page 293 would require the court to change the rules of evidence, to submit the decision of the facts in a case to a jury of less than 12 men; nor that would require the court to draw other than the legal and natural conclusion from given premises."Gittings v. Baker, 2 Ohio St. 21.
See, also, Fox v. Martin, 108 Wis. 99 (84 N.W. 23); Kelsey v.Forsyth, 21 How. (62 U.S.) 85.
Much less is a stipulation valid which changes the method of procedure in proceedings in rem, and submits the determination of the mental competency of a testator to one man other than the probate judge.
No one who has no pecuniary interest in the estate may contest the appointment of the executor and trustee named in the codicil. In re Norton's Appeal, 46 Conn. 527; In re Estateof Sanborn, 98 Cal. 103 (32 P. 865); In re Beeder's Estate,10 Pa. 261; Shepard's Estate, 170 Pa. 323 (32 A. 1040);Cornwell v. Cornwell, 11 Humph. (30 Tenn.) 485; In reHickman, 101 Cal. 609 (36 P. 118); Wynne v. Spiers, 7 Humph. (26 Tenn.) 394; Bank of Tennessee v. Nelson, 3 Head (40 Tenn.), 634.
It is only persons who might be injured by admitting the codicil to probate who may contest it. In re Coursen's Will,4 N.J. Eq. 408.
An interest in the property of the estate affected by the will is the foundation of the right to contest it.Brewer v. Barrett, supra; Johnston v. Willis, supra.
The question involved here was before the court inHelfrich v. Yockel, supra, where it is said:
"The exact question here presented, whether an executor, whose appointment has been revoked by a subsequent will or by a codicil to the will by which he was appointed, can maintain caveat proceedings against the later will or the codicil revoking his appointment, when in the event of the annullment of *Page 294 the will or codicil the only benefit or advantage accruing to him therefrom would be the right to serve as executor and to receive in compensation for his services such commissions as might be allowed him, has never been before this court."
After discussing the case and the authorities, it is said:
"The right conferred upon the appellant by the will, as first executed, and withdrawn from him by the codicil, to serve as executor and to receive commissions for his services as executor when rendered by him, cannot we think be regarded as an interest in the property and estate of the testator entitling him to caveat the codicil."
See, also, Johnston v. Willis, supra.
The legatees and beneficiaries under the trusts created by the will are not here.
The persons named as executors and trustees by the testator have no such interest in the estate as to permit them to agree to submit the testamentary capacity of testator to a third person for determination. Their agreement could not bind those who have a pecuniary interest in the estate. No agreement of this kind under any circumstances could bind the estate unless all persons interested therein were parties thereto.
The probate court could not abdicate its jurisdiction. It could not delegate its power and authority or its duty, in case there was a contest of the codicil filed, and none was filed in this matter, to hear the testimony, at least to pass upon such proof as should be presented to it.
Arbitration proceedings recognized in this State are either statutory or common-law proceedings.
The statute relating to arbitration provides only for the arbitration of cases which might be subject *Page 295 to an action at law or suit in chancery.* It applies only to controversies between parties, not to proceedings for determining the status of estates which are proceedings in rem. Here there was no execution of an agreement to arbitrate, no hearing held before the arbitrator, no oath administered to the arbitrator or the witnesses before him, no agreement as to the binding force and effect of the award. There was no sum of money or damages awarded upon which a judgment could be entered, no judgment of the court could be entered for the recovery of any debt or damages, and, as a common-law arbitration, the court could not decree specific performance of the award because the award was one which could not under the law be submitted to arbitration.
Probate proceedings are not suits or actions. They may affect persons not named in the record. The rights of all concerned or interested in the estate in question are involved. The issue upon the admission to probate of a will is marked out by statute and may not be contracted to the detriment of those concerned or interested by the act of others who happen to be proponents. A transaction between two contending parties cannot bind the interests of a third. An agreement between the parties "has no application to those cases where the object of the litigation is to ascertain and settle the state or condition of the subject matter, as distinguished from the pecuniary rights or liabilities of confronting and contending litigants."Allison v. Smith, supra.
Upon the appeal from the probate court to the circuit court, "the proceedings in the circuit are precisely like those in the probate court, — statutory prerogative proceedings to determine the status of *Page 296 a dead man's estate, and in no sense to be regarded as contentious litigation inter partes. * * * There can be no such thing as a determination of testacy or intestacy which binds one appellant and does not bind the rest. The controversy — or more properly the proceeding, for it is not, correctly speaking, a controversy — includes all interests that the law recognizes for any purpose and binds all." People, ex rel.Frazer, v. Wayne Circuit Judge, supra.
Cases involving the probate of wills or codicils belong to the class of actions in rem. The object is to establish a will, to have the status of an estate adjudicated, and all who are concerned or interested are parties. Stevens v. Hope, supra.
It is claimed the order appealed from was entered by consent by all parties involved and hence it was not appealable, and the appeal therefrom was dismissed. There is nothing upon the face of the order which indicates it was an order entered by consent. Nor is there anything on the face of the order of the probate court sought to be appealed from that would bar an appeal. It does not appear in the body of the order it was one made by consent and it was, therefore, appealable. But if we go behind the order and investigate the facts, then it appears the executors of the last will and testament of the deceased have no such interest in the estate as entitles them, or any of them, to contest the admission to probate of the codicil to the will of deceased. They could not enter into a valid stipulation to submit the question of testator's mental competency to the determination of a person or tribunal other than the probate court. No action of such executors as such could, under the circumstances in this case, bind the beneficiaries under the will and though one of the executors may be personally interested in the contest of the codicil, his action can bind no one but *Page 297 himself. All persons beneficially interested in the estate of the deceased have a right to be heard upon the question of whether the codicil shall be admitted to probate or not.
There is no claim on the part of anyone the estate should be settled otherwise than in accordance with the terms of the testator's will. There not only was no authority to arbitrate the mental condition of the testator, but no arbitration was actually had under the statute or according to the principles of the common law.
The order of the probate court appealed from, even though it was a consent order, was invalid and entered without jurisdiction. A prima facie case was made in the probate court of the due execution of the codicil and of the mental capacity of the testator to execute it. No contest of this codicil was ever filed, presented or before the probate court, and no evidence of the testator's mental incompetency was presented to the probate court. Though the order may have been entered by consent, it was not a valid order for the reason those who may be said to have consented thereto had no power or authority to so consent. No one without a pecuniary interest in the estate which may be injuriously affected by the admission of the codicil to probate may contest its validity, or make any agreement in relation thereto. No stipulation such as here involved can oust the jurisdiction of the probate court, permit the probate judge to abdicate his jurisdiction and power or delegate it to a third person not a judicial officer, and no stipulation can provide for the determination of the status of the codicil in any other manner than that provided by statute. Jurisdiction to determine the competency of the testator may not be conferred by agreement on a third person. The determination of the invalidity of the codicil, if it is invalid, must *Page 298 be made in accordance with the statute. The order of the probate court on its face was appealable. If we go behind the face of the order of the probate court we find the order unauthorized.
Judgment of the trial court reversed, with costs, and the cause remanded for further proceedings.
NORTH, C.J., and FEAD, WIEST, BUTZEL, BUSHNELL, and TOY, JJ., concurred with POTTER, J.
* See 3 Comp. Laws 1929, § 15394 et seq. — REPORTER.