In re Estate of Robinson ( 1858 )

Campbell J.:

Emiliette Moyer, claiming to be heir-at-law of the de-, cedent, filed a petition in the Probate Court of Wayne county, to compel an account from the administrator. He opposed, the order on the ground that the petition was not properly verified; and no issue having been made upon any fact, but the administrator claiming that no sufficient showing-was- made of an interest in the claimant, the probate court granted the application. The administrator appealed to the. circuit court, where the cause jwas heard upon the papers,, without any issue having been framed or tendered, and the decree of the probate court was reversed. The case is. brought here by certiorari.

An objection is made to hearing the cause at this term,, because no sufficient proof of notice of argument appears. The plaintiff in error has produced an affidavit of Mr. Rex-ford, who swears that he served notice regularly, and filed proof of such service with the clerk of this court, in whose, office it appears to have been mislaid. This is. certainly proof enough until denied by affidavit. The case, is properly-before us.

It is also objected that certiorari will not lie in the case. No motion having been made to dismiss, and the objection having been made for the first túne in the brief submitted by leave since the hearing, we are not inclined now to con-, sider the objection. We are strongly inclined to the opinion that the case is a proper one for that writ, and shall there-, fore sustain it for the reasons mentioned. The question, may, however, be- considered as open for argument hereafter-in a proper case, if one should arise.

I the probate court, the decree was granted upon the¡ petition alone, so far as appears; and the question to he considered first is, whether that is, in form, sufficient. We have no hesitation in saying that its allegations are ample. It avers the heirship of the claimant; and the facts entitling her to an account, if she is such heir, are fully set forth. There is no rule or statute requiring such petition to be verified in any particular manner, or at all. A probate judge is not required to act upon a petition which he has not some reason to believe is presented in good faith, and in a real interest; and he may properly require an absolute verification of any thing whereon his action is required upon the merits; but where the party complained of is cited to appear, and has an opportunity of controverting the facts, there is no rule, of which we are aware, which renders it imperative on the probate judge to decline receiving an unsworn petition. The affidavit attached to the petition is upon information and belief, but is sufficient to show the good faith of the application; and the citation was entirely proper.

The fact of heirship was material; and had the respondent put it in issue, so that evidence could have been taken on it, the petitioner would have been compelled to establish her case by proofs. But, without the tender of an issue upon it, no proofs could be taken, and the case must stand upon the sufficiency of the allegations of the petition.— Foster v. Wilber, 1 Paige, 537; Thomson v. Thomson, 1 Bradf. S. R. 27. In the latter case it is held that, even if put in issue, the petition will entitle the claimant to relief, if absolutely verified, and met by no counter-proof. The form of the issue is not required to be technical, but it must be raised in some way. And as the ease stood, the probate court appears very properly to have treated the objection as going to the sufficiency of the allegations.

In the circuit, court, no issue having been certified up, and no new issue of fact having been framed, there was nothing to pass upon but the sufficiency of the case made by the petition; and, as we have already remarked, we think that case properly framed to entitle the claimant to the relief prayed.

The decision of the circuit court must be reversed, and that of the probate court affirmed.

Manning and Christianoy JJ. concurred. Martin Ch. J. did not hear the argument.