The this can make in the transaction. obligation to pay the debt was not the binding because it was secured by mortgage; and, if a lien was removed from the homestead, it was the consequence of an act lawful in itself. The payment conferred upon the debtor no new right. He owned the homestead free from liability before the debt of the plaintiff was contracted, and he simply restored its former exemption by paying a debt which he had incurred upon its security. "The case of Riddell v. Shirley, 5 Cal. 488, is a very different one from this. In that case there was a fraudulent and collusive sale of the debtor's property to discharge liens upon his homestead; the vendee was not a creditor receiving payment of a debt, and no claim against the homestead was asserted. The opinion expressly excepts from its conclusion a case like the present. To make this case,' very justly observes the learned counsel for the respondent in his brief, ་ at all like Riddell v. Shirley, the plaintiff ought to sue Drew to get the money back which the defendant paid him; but the absurdity of such a proceeding is too apparent to need any comment.'" Notwithstanding the remarks of the learned judge, the case seems to overrule Riddell v. Shirley. See Thompson on Homesteads and Exemptions, sect. 306. In Illinois it is held not to be a fraud for an insolvent debtor to purchase a homestead, even though he cause the title to be vested in his wife, if he in good faith intended it as a homestead : Cipperly v. Rhodes, 53 Ill. 346. BREESE, C. J., said: "No question is made that the homestead right would have existed in Rhodes, had he taken the deed to the lot in his own name instead of taking it in, the name of his wife. He paid the purchase-money wholly out of his own funds, and at a time he had a right to obtain a homestead which would not be liable for his debts then existing, or to be subsequently contracted: and the sole question is whether taking the deed to his wife placed the property beyond the protection of the homestead law. This is an inquiry into which the animus enters largely. Did he purchase it as and for a homestead, and has it been so used and held. If such was his intention, then taking the deed to his wife would not, we think, cut off that right. If the design was simply to acquire property, which he could hold in fraud of his creditors, then the law would strip it of its covering, and subject it to the payment of the debts. But it must be remembered that it was not a fraud on his creditors to buy a homestead which would be beyond their reach.” Following Randall v. Buffington, it was held that an insolvent debtor might appropriate land to the use of a homestead even after a judgment was obtained against him, but before it became a lien upon the land: Culver v. Rogers, 28 Cal. 520. In In re Henkel, 2 Sawyer 307, the United States District Court held that under the law of California an insolvent might apply funds in his possession to the discharge of an encumbrance on his homestead without impairing its inviolability, and that a homestead might be declared at any time before the lien of a judgment had actually attached. In Nevada, property which possesses the characteristics of a homestead may be selected at any time before actual sale or execution, and the right of such selection is not destroyed by the insolvency of a debtor or the levy of an attachment: Hawthorne v. Smith, 3 Nev. 182. See further on this point Thompson on Homesteads and Exemptions 319; Trotter v. Dobbs, 38 Miss. 198; Irwin v. Lewis, 50 Id. 363; Letchford v. Cary, 52 Id. 791; Stone v. Darnell, 20 Tex. 11; Giddings v. Crosby, 24 Id. 295; Macmanus v. Campbell, 37 Id. 267; North v. Shearn, 15 Id. 174. In Edmondson v. Meacham, 50 Miss. 34, the rule is stated to be as follows: "A debtor may innocently subtract from his resources such means as may be reasonably necessary for the support of his family. His creditors, therefore, cannot pursue and reach the money of the husband and father paid for such necessary purposes, as the maintenance of the family and education of the children. But subject to that right, the debtor must devote his property and means to his creditors. If the husband takes money which ought to pay his debts and invests in the purchase of real estate or other property for wife or children, the transaction may be fraudulent or not, as the husband may be indebted or not, and then by a comparison of his debts with the resources retained by him. If he was insolvent at the time of the purchase, the evidence is overwhelming and conclusive that the motive was to make a gift at the expense of creditors, and that the intent was to withdraw his means from their reach." CHARLES BURKE ELLIOTT. Minneapolis. Supreme Court of Michigan. LLOYD v. WAYNE CIRCUIT JUDGE. A statute which provides for the ante mortem probate of a will is inoperative and void. A proceeding authorized by such statute by which questions as to competency, undue influence, &c., can be determined in advance of the testator's death, is not within any recognised judicial power, and the courts cannot be called upon to enforce it. MANDAMUS. John H. Bissell, for relator. The opinion of the court was delivered by CAMPBELL, J.-In this case Lloyd attempted to have his will established during life in the Probate Court for Wayne county, and an appeal was taken from the Probate to the Circuit Court. In that court the circuit judge was of opinion that the proceeding was extra-judicial, and refused to allow it to go on; but instead of dismissing or quashing it on that ground, entered an order affirming the probate decree. Mandamus is now applied to vacate that order. There can be no doubt of the impropriety of the order of the Circuit Court. By affirming the probate order he asserted jurisdiction, and he had no right to affirm it without a hearing on the merits. But whether he should proceed to such a hearing is the principal question before us. The case is one where we can get no help from similar precedents, as the statute is new and singular. Judicial proceedings to probate a will while the testator is living are unheard of in this country or in England; and inasmuch as the atute only makes the decree effective in the single case of the establishment of the will and subsequent death without revocation or alteration, and leaves it open to the testator to make any subsequent arrangement which he may desire, or to oust the jurisdiction by change of residence, or to leave the will once rejected open to probate in the usual way after death, the proceeding is still more anomalous. I am disposed to think with the circuit judge, that this is not in any sense a judicial proceeding which he was bound to consider or entertain. This is the first instance in our jurisprudence in which an attempt has been made to compel a living person, as a condition of relief, to enter upon a contest with those who, until his death, can have no recognition anywhere, and who after his death are presumed to represent him, and not any hostile interest. The maxim that the living can have no heirs is as well settled by statute as by common law. Until a man dies it can never be known who will succeed him, even if intestate; and whatever may be the probability, there is no certainty that a single one of the persons who have come in here to oppose the will may survive the testator. The law gives no preference to contingent expectations, and legally it is just as possible that the state may take by escheat as that the person now litigating, or any other more remote relatives will become interested. It is also within the power of relator to dispose of his entire property, not merely by a new will, but by sale or gift, and in such event there will be nothing for this will to dispose of and possibly nothing for these or any other kindred to inherit. It is also competent for him to go into another county or state or country, either of which acts would put his estate beyond the jurisdiction of Wayne county; and either of the two latter may change the course of inheritance or otherwise affect the disposal of his estate. I cannot conceive it possible that the proceeding can be dealt with as judicial when the chief party to it will not be precluded by the decree from doing exactly as he might have done had the court never been called on to act at all. This statute, which was probably designed to prevent the unseemly and disgraceful attempts too often made to defeat the enforcement of the last will of whose competency to deal with their own affairs was never doubted or interfered with, has been so drawn as to remove none of the difficulties, but rather to make them worse. It is a singular, and in persons my judgment a very unfortunate spectacle, to see a man compelled to enter upon a contest with the hungry expectants of his own estate, and litigate while living with those who have no legal claims whatever upon him, but who may subject him to ruinous costs and delays in meeting such testimony as is apt to be paraded in such cases. The practice which has usually prevailed in civil law countries, and also is said to have been customary in various parts of England (see Seld. Ecc. Jur. Test. 5) of having wills executed or declared in solemn form, or acknowledged before reputable officers and a sufficient number of disinterested witnesses to render it unlikely that the testator is not acting with capacity and freedom, has been approved by the continued experience of most countries, and has saved them from the post mortem squabblings and contests on mental condition which have made a will the least secure of all human dealings, and made it doubtful whether in some regions insanity is not accepted as the normal condition of testator. There is no sensible reason why a will which is always revocable and contingent should not be established, presumptively at least, by such an acknowledgment as will suffice to prove a deed which is irrevocable; and where, as is usually the case abroad, such an acknowledgment is made before trustworthy officers, in the presence of known and reputable witnesses, and in the enforced absence of all other persons, the security against incapacity and incompetency is quite as strong as can be found in a contest before a court or jury that never saw the testator. A man's incapacity, if it exists, will not easily escape the notice of his disinterested friends and eighbors, and when they certify to his competency and freedom of ac on with their attention directly called to their own responsibility in a、ing so, they are seldom mistaken, and those who seek to impugn thei action, if allowed to do it at all, should be compelled to assume the burden and risk themselves. But this is not judicial action. In the proceedings of various kinds familiar in England, where conveyances are made effective by acknowledgment and enrolment before various classes of public officers and tribunals, it was never deemed proper or necessary to bring general heirs presumptive before the acknowledging officer, in order to give efficacy to transfers in fee simple, either of man or woman, although they are as clearly affected in their prospects of inheritance as they would be by a will. And in the cases where testimony is to be perpetuated for use in future controversies, the rule is inflexible that no matter how great the probability of inheritance may be, the heir presumptive is not either a competent or permissible party to such litigation; and this is so even in case of estates tail, and although the circumstances are as strong as possible against the chances of any change: Earl Belfast v. Chichester, 2 Jac. & W. 439; Allan v. Allan, 15 Ves. 130; Lord Dursley v. Fitzhardinge, 6 Id. 251; Sackvill v. Ayleworth, 1 Vern. 105; Smith v. Attorney-General, 6 Ves. 260; S. C., in note 1 P. Wms. 117. The broadest definition ever given to the judicial power, confines it to controversies between conflicting parties in interest, and such can never be the condition of a living man and his possible heirs. Our statutes have never undertaken, and do not in this case undertake to give to the heirs any interest which will ever be fixed by this probate, or which may not be cut off at any time by their own death, or by relator by new will or conveyance. It is by no means free from doubt what classes of probate proceedings under our system are to be treated as judicial proceedings in the proper sense of that term; and it is not important here to consider that question, because this proceeding is not even a suit for probate. There has never been any proceeding known to our laws for the mere purpose of establishing the will even of a deceased person. The probate of wills under our statutes, is merely a part of the proceedings to administer the estates of deceased persons in the court that has jurisdiction and charge of the estates. This rule is so general, that in some states devises are not probated at all, and in some the probate is not conclusive, because controversies concerning land are usually tried in other courts. We have enlarged the jurisdiction in probate so as to reach lands for some purposes, and have made all wills subject to probate. But there is no case where an original probate can be granted here, except in the court having jurisdiction over the estate; it cannot be done separately. This statute does not attempt to change the place of ultimate probate, and it does not make a decree against the will either a bar or even admissible to prevent future probate after death. It makes no provision for making a finding either way evidence for any purpose during testator's life, so as to negative testamentary capacity, or otherwise to affect him. And it has no force for any purpose so long as he lives. I am of opinion that the statute is inoperative, as not within any recognised judicial power, and that the courts can not be called VOL. XXXIII.-100 |