Freeman v. Wayne Probate Judge , 228 Mich. 168 ( 1924 )

Pending the probate of the will of Mary C. Kempf, deceased, plaintiff, who was named as executor therein, was, on September 24, 1923, appointed special administrator of her estate, under section 13822, 3 Comp. Laws 1915. Harry V. Angevine, a nephew of deceased, filed a petition on December 5, 1923, averring that he had given notice of contest of the will and that it had been certified to the circuit court for hearing, pursuant to section 14145, and asked for the appointment of a special administrator as provided for in section 14159. An order was made appointing the Security Trust Company. This was reviewed in the circuit court by mandamus, and sustained. Plaintiff here brings certiorari to review such order.

The judge of probate and the circuit judge both construed section 14145 as in effect an appeal from the probate court. Defendant's counsel rely on Newell v. Kalamazoo Circuit Judge,215 Mich. 153, to support this holding. The provision for a bond on appeal was there held applicable when application was made to have the contest certified to the circuit court. This holding was due to the provision in section 14145 that the removal was "subject to the same provisions as are now provided for in appeals." To that extent it was said to be "in the nature of an appeal." The power to appoint under section 14159 exists only when an appeal has been taken. There can be no appeal without an order, judgment or decree to appeal from.

The order appointing the trust company will be reversed and set aside. No costs will be allowed.

CLARK, C.J., and MCDONALD, BIRD, MOORE, STEERE, and FELLOWS, JJ., concurred with SHARPE, J.