Angel v. Waligora

March 14, 1936, Joseph Nikrandt executed a deed of certain premises to his son-in-law and daughter, defendants herein. Mr. Nikrandt died intestate August 21, 1937, leaving three daughters and several grandchildren of a deceased daughter and son as his heirs at law. September 15, 1938, his daughter, Anna Angel, was appointed special administratrix of his estate and as such filed the bill herein to set aside the deed to defendants and, upon hearing, the deed was set aside on a finding that the grantor was mentally incompetent to execute the deed.

Upon appeal defendants contend the special administratrix could not file such a bill and, therefore, the court had no jurisdiction to render the decree.

This point was not raised in the court below and plaintiff claims cannot be raised for the first time on appeal, citingPeterson v. Cleary, 257 Mich. 640. That case was an action at law and the review limited to points presented at the trial. The instant case is in equity and upon appeal is heard de novo and defendants may now present the question relative to jurisdiction.

Upon the death of Mr. Nikrandt his estate vested in his heirs at law, subject to rights of creditors, if any, and expense of administration, and the special administratrix could not file the bill herein. We so held in Windoes v. Colwell, 247 Mich. 372.

The brief for plaintiff alleges the names of the heirs at law and asks, if we find as above stated, for leave to join proper parties as plaintiffs.

We have no application by heirs at law to join as parties plaintiff and cannot permit them to be so joined by plaintiff without they express such a desire.

Upon the record before us the decree is reversed and the bill dismissed, with costs to defendants, but without prejudice to rights, if any, of heirs at law of the deceased.

SHARPE, C.J., and BUSHNELL, CHANDLER, McALLISTER, and BUTZEL, JJ., concurred with WIEST, J.