(dissenting). This suit was started as a claim filed in probate court. Plaintiff is the administrator of the estate of one Lula Chabre, deceased, and also the surviving husband of said deceased. Plaintiff filed claims against the estate of Grant Chamberlain for loss of services as the bus-*288band of said deceased, and for damages resulting from the wrongful act of Grant Chamberlain resulting in the death of said Lula Chabre. The probate court, after hearing, allowed the claims. Defendant, as executor of the estate of Grant Chamberlain, deceased, appealed to the circuit court from the order allowing claims. In the circuit court, counsel for defendant filed a motion, dual in effect, to dismiss the appeal and also to dismiss the claims. The ground alleged for dismissal was that the probate court did not have jurisdiction to hear and allow the claims and that the circuit court had original, not appellate, jurisdiction. The circuit judge held that the probate court had no jurisdiction and entered an order dismissing both the appeal and the claims. On leave obtained, plaintiff appeals from said order. The only question here raised is whether the probate court under the provisions op the probate code enacted in 1939 now has original jurisdiction to hear claims against estates based upon trespass on the case.
The applicable statute is Act No. 288, Pub. Acts 1939 (Comp. Laws Supp. 1940, §§ 16289-1 [11— 16289-13 [5], Stat. Ann. 1940 Cum. Supp. § 27,3178 [1-615]), known as the “probate code.” Previous to the enactment of this code, the statute (3 Comp. Laws 1929, §15674 [Stat. Ann. §27.2821]) empowered the probate judge to “appoint two or more suitable persons to be commissioners, to receive, examine and adjust all claims and demands of all persons against the deceased except * * * [the exceptions do not apply to the case at bar].” Another section (3 Comp. Laws 1929, § 15681 [Stat. Ann. § 27.2828]) authorized the probate judge to hear claims himself, instead of appointing commissioners. The statute (3 Comp. Laws 1929, § 15685-*289[Stat. Ann. § 27.2832]) which gave the commissioners (and, therefore, the probate judge) jurisdiction to hear claims was as follows:
“The commissioners shall have power to try and decide upon all claims which by law survive against or in favor of executors and administrators, except claims for the possession or title of real estate; and may examine and allow all demands, at their then present value, which may be payable at a future day, including claims payable in specific articles, and may offset such demands in the same manner in favor of the estate.”
This court held that under the provisions of these statutes, the probate court had jurisdiction over actions of tort and trespass on the case against estates of decedents. Armstrong v. Loomis, 97 Mich. 577; Blickley v. Luce’s Estate, 148 Mich. 233; In re Sullivan’s Estate, 165 Mich. 585; Ford v. Maney’s Estate, 251 Mich. 461 (70 A. L. R. 1315).
. Prior to the enactment of the probate code in 1939, another provision of the probate law (3 Comp. Laws 1929, § 15688 [Stat. Ann. § 27.2835]) prohibited the bringing of any action against an executor or administrator when commissioners had been appointed to examine and hear claims,, except certain actions. This section was as follows:
“When commissioners shall be appointed, as provided in this chapter, for examining and allowing claims against any estate, no action shall be commenced against the executor or administrator, except actions of ejectment, or other actions to recover the seizin or possession of real estate, and actions of replevin, nor shall any attachment or execution be issued against the estate of the deceased, until the expiration of the time limited by the court for the payment of debts.”
*290It is not claimed that this section of the law conferred jurisdiction on probate courts to hear and determine actions of ejectment, actions to recover seizin or possession of real estate, or actions of re-plevin. In the cases cited, the court reasoned that actions of trespass on the case, not being included in the actions permitted in other courts of competent jurisdiction, consequently came within the jurisdiction of the probate court. These designated actions could be brought in any court of competent jurisdiction. The most that can be claimed for this section is that it prohibited all other actions against executors or administrators (except by filing a claim in probate court), but excepted from such inhibition actions of ejectment, replevin and for possession of real estate. On that basis,' this court held that claims based on tort and trespass on the case, not being within the excepted actions, might be filed as claims in probate court.
So, as far as we can find from the adjudicated cases, no claim has ever been made that commissioners on claims (or the probate judge) could hear and determine cases against an estate for ejectment, or replevin, or possession of land. No statute law provides for the issuance by commissioners on claims, or by a probate judge, of a writ of ejectment against an estate, or a writ of replevin against an estate, or a writ of restitution of land. No statutory machinery has been set up for the enforcement of such writs if issued by a probate judge. The probate court must depend solely upon statute law for its authority.
Keeping in mind that ejectment, replevin, and possessory actions for real estate could not be filed as claims in probate court under former statutes, but might be commenced against an executor or administrator in a court of competent jurisdiction, has *291the probate code changed this procedure? And does this inhibition now apply equally to actions of trespass on the case? We must look to the probate code for the answers.
In the enactment of the probate code, 3 Comp. Laws 1929, § 15674 (Stat. Ann. § 27.2821), authorizing the probate judge to appoint commissioners to hear claims, has been expressly repealed; 3 Comp. Laws 1929, § 15681 (Stat. Ann. § 27.2828), authorizing the probate judge to hear claims, instead of appointing commissioners, has been expressly repealed; 3 Comp. Laws 1929, §15685 (Stat. Ann. §27.2832), conferring power on the commissioners to hear all claims which by law survive the death of the decedent, except for possession or title of real estate, has been expressly repealed; and 3 Comp. Laws 1929, §15688 (Stat. Ann. §27.2835), prohibiting the commencement of actions against executors or administrators when commissioners on claims have been appointed, except ejectment, recovery of seizin or possession of real estate, and replevin, has been expressly repealed. For the repealer, see Act No. 288, chap. 13, § 2, Pub. Acts 1939 (probate code), (Comp. Laws Supp. 1940, § 16289-13 [2], Stat. Ann. 1940 Cum. Supp. §27.3178 [612]).
However, with one exception important in the case at bar, these statutory provisions have been substantially reenacted. Section 1 of chapter 8 of the probate code (Comp. Laws Supp. 1940, § 16289-8 [1], Stat. Ann. 1940 Cum. Supp. §27.3178 [411]) provides that no debts (except those secured by lien) shall be paid unless filed in and allowed by the probate court. Note the change from “claims” to debts. Section 3 of chapter 8 of the code (Comp. Laws Supp. 1940, § 16289-8 [3], Stat. Ann. 1940 Cum. Supp. §27.3178 [413]) provides that “all claims in each estate” shall be heard by the court, *292or by referees appointed by tbe court, and tbe court shall make an order allowing or disallowing such claims. The change in statute law of particular application to the case at bar occurs in the reenactment, with certain additions, of 3 Comp. Laws 1929, § 15688 (Stat. Ann. § 27.2835), prohibiting the commencement of actions against executors or administrators, except ejectment, actions for recovery of possession of lands, and replevin. The new section of the probate code (Act No. 288, chap. 8, § 22, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 16289-8 (22), Stat. Ann. 1940 Cum. Supp. § 27.3178 (432)] is as follows:
“No action shall be commenced against the executor or administrator, except actions of ejectment, or other actions to recover the seizin or possession of real estate, and actions of replevin and trespass on the case and any other action in which the deceased might have been properly joined with others as a party defendant, nor shall any attachment or execution be issued' against the estate of the deceased, until the expiration of the time limited by the court for the payment of debts: Provided, That such action shall be brought in the circuit court of any county having jurisdiction of the parties. Plaintiff may file in the probate court having jurisdiction of said estate a notice of suit pending. After the filing of such notice no assignment of property to heirs, nor payment of debts, or other distribution shall be made to creditors within the fifth class except said probate court may authorize such distribution in case, the executor or administrator retains sufficient assets to secure said plaintiff payment of the judgment recovered including costs. The final judgment rendered in such action shall be certified to the probate court by the county clerk upon the same becoming final whereupon such judgment shall have the same effect as all other approved claims of the- same class against said estate.
*293“No person having any.contingent or other lawful claim against a deceased person shall thereby be prevented from prosecuting the same against the executor, administrator, heirs, devisees or legatees, as provided by law, and in such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death may, on obtaining judgment, have execution against such real or personal estate.
“In no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against an executor or administrator; nor shall any writ of attachment or execution issue against such executor or administrator, or against the estate of the deceased in his hands, during the time allowed him for the payment of debts, except in the case provided for in the preceding paragraph.”
It seems to be plain that actions in trespass on the case have now been placed in the same category with ejectment, actions to recover possession of real estate, and replevin. Probate courts no longer have jurisdiction over actions in trespass on the case. The probate court derives none of its jurisdiction from the common law and the probate code does not either by express language or necessary inference confer upon probate courts the authority to hear actions in trespass on the case against an estate, any more than it does to hear ejectment, pos-sessory actions for real estate, or replevin. This conclusion in no way interferes with the authority given to fiduciaries by the probate code (chapter 8, §19 [Comp. Laws Supp. 1940, § 16289-8 (19), Stat. Ann. 1940 Cum. Supp. §27.3178 (429)]) to adjust, settle or compromise any claim for or against the estate under the order of the probate judge.
The legislative history of the enactment of the probate code bears out the conclusion we have *294reached as to the legislative intent. The bill as introduced followed substantially the provisions of the former statute providing that no action be commenced against an executor or administrator, except ejectment, actions for recovery of possession of real estate, and replevin. Section 22 of chapter 8 of the bill was amended by the senate judiciary committee and reported out in the identical language now in the law (Comp. Laws Supp. 1940, § 16289-8 [22], Stat. Ann. 1940 Cum. Supp. § 27.3178 [432]). Trespass on the case was added to those actions which might be commenced against the executor or administrator in a court of competent jurisdiction. A proviso was also added that such actions might be brought in the circuit court of any county having jurisdiction of the parties, that the plaintiff might file in the probate court a notice of suit pending, and that after filing such notice no assignment of property to heirs or payment of debts or other distribution be made to creditors of the fifth class (with certain exceptions). There was also added a provision that the final judgment in such action shall be certified to the probate court by the county clerk, whereupon such judgment shall have the same effect as all other approved claims against the estate. And as a further indication of the legislative intent, this section now provides that, along with actions in ejectment, actions to recover possession of real estate, actions in replevin and in trespass on the case, shall be included “any other action in which the deceased might have been properly joined with others as a party defendant.” There is no room for claiming that actions in this last-quoted classification are within the jurisdiction of the probate court. Certainly, the probate court cannot have jurisdiction of actions where two or more defendants are jointly or severally liable when one or more of the *295defendants are living and another or others are deceased, merely because one or more defendants have estates pending in that court. Such claim of jurisdiction in the probate court would lead to an absurdity, because the estates of two or more deceased defendants would be probated in different proceedings, and might even be in different counties. Certainly, the probate court could not enter judgment against the living defendants. The inevitable conclusion must be that the legislature intended to include actions in trespass on the case in the same category with these other designated actions and not to confer jurisdiction on the probate court to hear the same. To hold otherwise would be to negative any effect to be given to that part of the present statute including actions in trespass on the case with the other actions referred to in this section.
The only issue raised on the appeal from probate court and before this court is whether the probate court had jurisdiction to hear and determine these claims in trespass on the case. That part of the order of the circuit court dismissing the appeal from the probate court,was erroneous and should be set aside. The appeal should have been allowed. That part of the order appealed from dismissing the claims for lack of jurisdiction of the probate court should be affirmed. A question of public interest being involved, no costs should be awarded.
McAllister, J., took no part in this decision.