The facts as established by the petition and answer were:
a — That Nanhie H. Clark died intestate in the state of Ohio in 1895; that administration of her estate in Michigan was committed by the probate court of Wayne county to William IT. MeCorkle, who qualified and entered upon the discharge of the duties of said office.
b — That commissioners on claims were appointed; that it appeared upon the argument of the motion for leave to appear that Ambrose Appleton was a judgment creditor, having obtainod a judgment in the Wayne circuit court in a suit commenced during the life time of the said Nannie H. Clark, and revived against the administrator of her estate, for $662.13, including costs of suit, which judgment was certified to the probate court under the statute; that the total amount of claims allowed against the estate was $474.50; that tho commissioners on claims were allowed by the probate court $100, making, with said judgment, an aggregate of $1,236.63, instead of $1,015.78 as alleged in relator’s petition; that the latter sum represents the amount of claims adjudged against the estate in favor of creditors represented by James H. Brewster, a Detroit attorney, before said commissioners, and who now represents said claimants.
e — That relator is a brother .of the decedent; that the witness whose deposition was taken in support of his claim is the mother of the deeedent; that there was no evidence before respondent that relator’s claim was disallowed by the commissioners upon technical grounds, nor as to the reason for its disallowance.
d — That the total amount of the estate, as shown by the inventory, and as near as can be estimated, is $1,400, part of it consisting of stock in the Detroit Has Company.
e — That the report of the commissioners on claims was dated June 20, 1896; that the return to relator’s appeal was. made and the cause entered in the circuit court August 24,1896; that on the *94last named day tlie petition of Henry M. Cheever for a commission to take the testimony of one M. E. Synnestoedt, the mother of relator and of the decedent, was presented to respondent; that he in-. dorsed thereon an order that said commission issue; that respondent has no information whether or not there was a stipulation between said Cheever and the administrator as to the taking of said testimony as stated in relator’s petition, except that no such stipulation appears in the files in said cause in the circuit eourt, nor is there any calendar entry of the filing of the same; that it was stated in the petition for the commission that the administrator understood fully the situation and circumstances,-and assented to the taking of the testimony of said witness as proposed by deposition or commission; that said commission was issued; that the deposition of said witness was taken at Cincinnati, Ohio, where she resided, on August 26, 1896, and on the following day said deposition was filed in the cau.se; that no cross interrogatories were submitted to said witness on behalf of the estate, nor was she 'orally cross-examined on its behalf.
/ — That on August 27, 1896, Ambrose Appleton, the said judgment creditor, and John C. Her, a creditor whose, claim had been allowed by said commissioners, by James H. Brewster, their attorney, moved the court that they be allowed to appear by attorney in said cause; that the said commission be recalled, and a new one issued upon due notice to petitioner’s attorney, upon the grounds that they were creditors of said decedent with’ adjudged claims against her estate amounting to more than three-fourths of its value, and were the parties chiefly interested in disputing the claim of relator against said estate; that they were entitled to be represented upon the hearingof relator's appeal' by their own attorney; that the administrator was merely a nominal party, while creditors were the real parties.
[In the petition filed by Ambrose Appleton as the basis for said motion it was alleged that William F. McCorkle was the attorney for decedent in the suit brought against her by the petitioner; that on the trial of said cause he was represented by Henry M. Cheever, who earnestly contest-en petitioner’s claim as plaintiff in that case; that relator was represented before the commissioners on claims by said Henry M. Cheever, who represents him on his appeal; that the relations existing between relator and said administrator are naturally friendly; that they have thus far done what they could to defeat petitioner’s claim; that if relator’s claim is allowed the petitioner and other creditprs wiH receive but a small percentage of their claims, hence they are the parties chiefly interested in contesting. relator’s claim; that relator’s claim was supported before the commissioners by the dep osition of Mrs. M. E. Synnestoedt, of Cin cinnati, Ohio, the mother of relator, the deposition having been taken by consent of the administrator upon interrogatories propounded by said Henry M. Cheever, and without notice to the creditors of the estate, or their attorney; that there was no cross-examination of said witness, nor were cross interrogatories propounded to her by any one; that said administrator has declined to allow said Brewster to represent the estate upon said appeal, on the ground that it would be offensive to relator; that he informed said Brewster that he-would employ some other attoriiey; that said Brewster offered to conduct the case without expense to the estate. Editor.
g — 1That on September 4, 1896, an ordel- was entered that Ambrose Appleton and John C. Iler might enter their appearanee in the cause as parties thereto by James II. Brewster, their attorney, at their own expense, and- without expense to the estate; that upon the filing of .said order and service upon Henry H. Cheever, attorney for relator, and Bethune duflield, who had appeared for said administrator, of a certified copy of said order, said appearance should be deemed to have been entered in said cause; that said’ cause is upon the docket of *95the present term of the Wayne circuit court, and has not yet been reached.
h — That it does not appear that relator can be injured, prejudiced, or affected in his legal rights by said order, and for this reason respondent submits relator’s petition should be dismissed,