In Re Wojan Estate , 126 Mich. App. 50 ( 1983 )

126 Mich. App. 50 (1983) 337 N.W.2d 308

In re WOJAN ESTATE

Docket No. 62676.

Michigan Court of Appeals.

Decided May 18, 1983.

Michael A. Gibbons, for Madelyn Renaud.

James R. Deamud, for Phyllis Switzer, Stella D. Dubreville, Mary Wood and Dolores Gallagher.

Menmuir, Zimmerman, Rollert & Kuhn (by Charles H. Menmuir), for intervenor Robert L. Hoffman.

Before: R.M. MAHER, P.J., and R.B. BURNS and P.J. MARUTIAK,^[*] JJ.

PER CURIAM.

Several of the children of Anthony J. Wojan, Sr., deceased, appeal from a February 3, 1982, probate court order which directed the personal representative to transfer a group of rental properties from the estate to a corporation incorporated by the testator known as Wojan Apartments, Inc. The probate court found the testator's intent, as evidenced by the will and the circumstances surrounding its making, was for the apartment complex to be distributed through the corporate structure. The probate court certified its order as a final one and this appeal is timely and as of right. MCL 600.861; MSA 27A.861.

The plaintiff or proponent in the probate court bears the same evidentiary burden as every litigant in a civil case. Litigants must prove their case by a preponderance of the evidence. Utley v First Congregational Church, 368 Mich. 90, 100; 117 NW2d 141 (1962).

The changes brought by 1978 PA 543; MCL 600.861; MSA 27A.861, and PCR 801, have yet to be fully digested by this Court. One matter yet unresolved is the appropriate standard of review in cases where the probate judge sits without a jury. While the General Court Rules, GCR 1963, 517.1, provide that "[f]indings of fact shall not be set aside unless clearly erroneous", the Probate Court Rules give no such guidance. In Tuttle v Dep't of State Highways, 397 Mich. 44, 46; 243 NW2d 244 (1976), the Supreme Court articulated the "clearly erroneous" standard:

"In construing comparable ``clearly erroneous' language in Rule 52(a) of the Federal Rules of Civil Procedure, the United States Supreme Court has stated that ``[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed'. After a review of the entire record of this case, we are left with such a definite and firm conviction. Appropriately, the ``judicial sieve' with which we have sifted the evidence in this non-jury case is ``of finer mesh than the one correspondingly employed on review' of a jury's verdict." (Footnotes omitted.)

Whatever the former review standard might have been, whether "against the preponderance of the evidence", Jones v Eastern Michigan Motorbuses, 287 Mich. 619, 645; 283 N.W. 710 (1939), "manifest error" or "palpably erroneous", as many other cases state, the "clearly erroneous" standard is not significantly different.

In Kevreson v Michigan Consolidated Gas Co, 374 Mich. 465, 467; 132 NW2d 622 (1965), the Michigan Supreme Court noted in a footnote that the "clearly erroneous" standard was equivalent to the "preponderance of the evidence standard" in the former court rule:

"Former Court Rule No 64 (1945) provided that ``Appellant may assign as error that the judgment is against the preponderance of the evidence.' This has been changed to "Appellant may assign as error that the finding on the issue tried without a jury is clearly erroneous.' GCR 1963, 810. The change of wording does not affect our status as a reviewing Court. We adhere to what was said on that score in Schneider v Pomerville, 348 Mich. 49 [81 NW2d 405 (1957)], Northwest Auto Co v Mulligan Lincoln-Mercury, Inc, 348 Mich. 279 [83 NW2d 306 (1957)], and Barnes v Beck, 348 Mich. 286 [83 NW2d 228 (1957)]."

We find that the "clearly erroneous" standard best serves the judicial process, and, in the absence of statute or court rule directing another standard of review, adopt the "clearly erroneous" standard.

We find that the probate judge's decision was not clearly erroneous.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.