In Re Dodge Estate

162 Mich. App. 573 (1987) 413 N.W.2d 449

In re DODGE ESTATE

Docket No. 83736.

Michigan Court of Appeals.

Decided July 27, 1987.

Williams, Schaefer, Ruby & Williams, P.C. (by James P. Cunningham), for Frances Manzer Mealbach.

Bodman, Longley & Dahling (by Louis F. Dahling, Joseph A. Sullivan and Charles N. Raimi), for Joseph Freedman, Personal Representative of the Estate of Winifred Dodge Seyburn, and the Matilda R. Wilson Fund.

Dickinson, Wright, Moon, Van Dusen & Freeman (by Henry M. Grix), and Thomas E. Owen, of Counsel, for Edith Seyburn Quintana, Isabel Seyburn Harte, Winifred Seyburn Cheston and Suzanne Seyburn Meyer.

Dykema, Gossett, Spencer, Goodnow & Trigg (by Raymond T. Huetteman, Jr., John F. Dykema and Terrence E. Haggerty), for Fredericka Van Lennep Caldwell, John F. Van Lennep and Manufacturers National Bank of Detroit, as Trustee Under the Will of Frances Dodge Van Lennep.

Hill, Lewis, Adams, Goodrich & Tait (by Thomas E. Coulter, John D. Mabley and Timothy W. Hefferon), for Mary Ann Dodge Danaher.

Honigman, Miller, Schwartz & Cohn (by Charles Nida, Marguerite Munson Lentz and Susan D. Hoffman), for Judith Johnson McClung.

Barbier, Goulet, Petersmarck, Tolleson, Mead & Paige, P.C. (by Roy M. Tolleson, Jr., and Robert D. Welchli), for Frederick L. Van Lennep.

Before: HOOD, P.J., and T.M. BURNS and J.X. THEILER,^[*] JJ.

PER CURIAM.

This is an appeal as of right from the Wayne County Probate Court's grant of accelerated judgment to the respondent heirs of the children of John F. Dodge on Frances Manzer Mealbach's petition for determination of heirs and from an order dismissing Mealbach's petition for production of adoption records. According to Mrs. Mealbach's pleadings, she is the previously unknown Siamese twin of Frances Matilda Dodge (Van Lennep) (also referred to as Mathilda), daughter of John F. Dodge and Matilda Rausch (Dodge).

As reported in a number of previous Michigan appellate decisions, John F. Dodge was an early and highly successful automobile manufacturer. He died testate on January 14, 1920. John F. Dodge's will was dated April 4, 1918. See In re Dodge Trust, 121 Mich App 527, 534; 330 NW2d 72 (1982), lv den 418 Mich 878 (1983). On March 20, 1922, the will was admitted to probate nunc pro tunc. See Dodge v Detroit Trust Co, 300 Mich 575, 592; 2 NW2d 509 (1942).

John F. Dodge's will is an eighteen-page document drafted by an attorney who was "able and experienced in the practice of probate law." In re Dodge Trust, supra at 540. It provides for a number of bequests and then directed that the balance of the estate be paid to John F. Dodge's wife, Matilda Dodge, his brother, Horace Dodge, and the Detroit Trust Company as trustees. The will then directs that the proceeds of the trust be paid to specified persons (various relatives of John F. Dodge) and their heirs as long as any of John F. Dodge's children survive. Finally, the will directs that upon the death of all the children of John F. Dodge, the trust is to be dissolved, with the corpus paid to the heirs of John F. Dodge's "said children," Winifred Dodge Gray, Isabella Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge.

Winifred Dodge Gray (Seyburn), the first-born child of John F. Dodge, was also the last to die. Her death in 1980 operated to terminate the residuary trust created under the will. In re Dodge Trust, supra at 537. In re Dodge Trust resolved a controversy over the phrase "heirs of my said children" and affirmed the trial court's partition of the trust corpus.

On October 29, 1984, Frances Manzer Mealbach filed her petition for determination of heirs with the probate court. In that petition, Mrs. Mealbach alleged that she is an heretofore unknown and unascertained claimant, interested in the property which the deceased owned, including the corpus of the trust established under the will of John F. Dodge.

On December 14, 1984, Mrs. Mealbach filed a petition for production and inspection of adoption records and original birth certificate. In that petition, Mrs. Mealbach alleged that she was born on November 23, 1914. Upon the death of her father in 1967, she learned that she was an adopted child. In 1982, a copy of the birth certificate of Frances Dodge was erroneously sent to Mrs. Mealbach by the Michigan Secretary of State. The birth certificate stated that Frances Dodge was first in order of birth of twins. Mrs. Mealbach has had marks on the back of her head and the base of her neck all of her life. She recently obtained medical confirmation that the marks are surgical scars "consistent with the separation of Siamese twins at birth."

On December 17, 1984, Mrs. Mealbach filed an affidavit in support of her petition for determination of heirs. According to that affidavit, Mrs. Mealbach has dreams of being taken, as a young girl, to a very beautiful home to see a red-haired young woman who was ill in bed. In late 1982, Mrs. Mealbach was shown a book entitled "The Dodges" and recognized the home as that of John F. Dodge located at 43 Boston Boulevard in Detroit. As a child, Mrs. Mealbach remembers that a friend of her father was one Frank Upton. Mr. Upton was employed as a "secretary" by the Dodge brothers. He also served on the board of the Methodist Children's Home, from which Mrs. Mealbach's parents took foster children. Mrs. Mealbach recently learned that Frank Upton was appointed guardian for unascertained heirs in the original probate proceedings for the estate of John F. Dodge.

On February 15, 1985, accelerated judgment was granted to the respondents on Mrs. Mealbach's petition for determination of heirs. The probate court's opinion cited as grounds for accelerated judgment the doctrine of res judicata, GCR 1963, 528.3, regarding relief from judgment or orders, and the equitable doctrine of laches. A second order, issued the same day, dismissed Mrs. Mealbach's petition for production and inspection of adoption records as moot. Mrs. Mealbach appeals from those orders of the probate court. Judith Johnson McClung cross-appeals on the question whether summary judgment should also have been granted to the respondents for failure to state a claim upon which relief may be granted or for failure to raise a material issue of fact.

As one of the alternative grounds for its decision to grant accelerated judgment, the probate court found that the petition for determination of heirs was essentially a petition for rehearing and was therefore barred by GCR 1963, 528.3, now MCR 2.612(C). Mrs. Mealbach argues that her petition was not one for rehearing and that, in any case, she was not personally notified and therefore falls within the exception provided in GCR 1963, 528.2, now MCR 2.612(B).

Mrs. Mealbach's first argument assumes that a petition for determination of heirs states a distinct cause of action within the Revised Probate Code. Thus, she essentially argues that, since there has been no prior determination of heirs within § 184 of the Revised Probate Code, MCL 700.184; MSA 27.5184, her petition is not one for rehearing despite the fact that an order of partition has been entered. Petitioner's assumption is erroneous.

The probate court, in its opinion granting accelerated judgment, appears to treat Mrs. Mealbach's claim as one ultimately for a share of the proceeds of the estate. At first blush, that does appear to be Mrs. Mealbach's objective. The petition for determination of heirs would appear to be merely a means to obtain a share of the estate. However, on appeal, Mrs. Mealbach appears to be arguing that even if she cannot now successfully claim a share of the estate she would still be entitled to a determination of heirs. The issue is one of first impression.

Section 183(1) of the Revised Probate Code provides:

The court may determine the heirs and devisees in any matter before the court. [MCL 700.183(1); MSA 27.5183(1).]

The first thing to note about this provision is that the determination of heirs may be made in the course of "any matter before the court." If the Legislature intended to allow a petition for a determination of heirs to be a separate cause of action, there would be no need for the final phrase of § 183(1). It is a well-established rule of construction that every word of the statute must be given meaning and that no word should be treated as surplusage or rendered nugatory if at all possible. Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).

Moreover, that a § 183 petition may not be sought as an end in itself is not only indicated by the literal language of § 183(1), but also by the parallel provisions of the Adoption Code. Sections 67 or 68 of the Michigan Adoption Code allow the discovery of the names of biological parents for good cause shown. MCL 710.67, 710.68; MSA 27. 3178(555.67), 27.3178(555.68). Thus, if Mrs. Mealbach's only objective is to determine whether John F. Dodge was her biological father, she could do so under the Adoption Code as she has in fact sought to do.

The Legislature is presumed to be aware of and to legislate in harmony with existing laws. People v Cash, 419 Mich 230, 241; 351 NW2d 822 (1984). The Legislature is therefore presumed to have been aware of the provisions of the Adoption Code in enacting the Revised Probate Code. It is difficult to imagine that, in view of the Adoption Code provisions, the Legislature intended to overlay a second mechanism by which an adopted child might attempt to ascertain her biological parents, much less that it would give such a mechanism the unlikely designation of "determination of heirs." The mechanism for determination of heirs would not only be redundant in these circumstances, but, also, rather awkward since adoptees would be joined in proceedings in which they have no real interest. Therefore, we conclude that a petition for determination of heirs does not, in itself, state a cause of action, and that a cause of action or claim to a portion of an estate must be pending in order to invoke the authority of the probate court to make a determination of heirs under MCL 700.183, 700.184; MSA 27.5183, 27.5184. It thus follows that Mrs. Mealbach's petition is, as the probate judge determined, one for rehearing.

Mrs. Mealbach alternatively argues that, even if her petition is deemed one for rehearing, it falls within an exception to GCR 1963, 528.3:

Any defendant over whom personal jurisdiction was necessary and acquired but who did not in fact have knowledge of the pendency of the action may, at any time within 1 year after final judgment, enter his appearance, and if he shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve him from the judgment, order, or proceedings as to which personal jurisdiction was necessary, on payment of such costs thereon or such creditors as the court deems just. [GCR 1963, 528.2.]

Here the probate court's partition order was entered on October 20, 1980, and Mrs. Mealbach's petition for determination of heirs was not filed until October 29, 1984. However, as Mrs. Mealbach points out, the probate court's order for partition of the trust corpus was appealed to this Court in In re Dodge Trust, supra.

NOTES

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