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jurisdictions where the general rule does not obtain. In this State such power is denied to the probate court. While that proposition was at one time a matter of serious contention in this court, and a vigorous dissenting opinion was filed in Grady v. Hughes, 64 Mich. 540 (31 N. W. 438), the question has long since been put to rest beyond controversy by adjudicated cases. Besancon v. Brownson, 39 Mich. 388; Grady v. Hughes, supra; Wright v. Wright, 79 Mich. 527 (44 N. W. 944); Corby v. Judge of Probate, 96 Mich. 11 (55 N. W. 386); Hitchcock v. Judge of Probate, 99 Mich. 128 (57 N. W. 1097); Smith v. Boyd, 127 Mich. 417 (86 N. W. 953); Hopper v. Probate Judge, 137 Mich. 124 (100 N. W. 266); In re Mills' Estate, 158 Mich. 504 (122 N. W. 1080). The stringency of these decisions was recognized and somewhat relaxed by Act No. 271, Pub. Acts 1905 (5 How. Stat. [2d Ed.] § 12099), conferring on probate courts power to modify or set aside their orders and decrees within 90 days of their rendition, after due notice to all parties in interest, but that provision furnishes no relief in this case, arising so many years subsequent to the original probation.

Petitioner contends, however, that he does not ask or seek by his petition to have the court revoke, or set aside, its former orders or judgments, and that it is not necessary to do so in order to grant the prayer of his petition; that the order admitting a will to probate is conclusive only as to its due execution. If properly proven and found to be duly executed, the lost will, as well as the former will, stands probated and established as duly executed, thus laying the foundation for invoking a court of chancery to determine between them; the probation of the will being a prerequisite to the chancery court assuming jurisdiction, inasmuch as jurisdiction to probate wills primarily rests with the probate court. We are unable to accept these conclusions. The probation of the later will of the same testatrix, in relation to the same property, by its terms revoking the former will, inevitably operates to

nullify and vacate the probation of the former, though the second order of probation may not so declare in exact language. With the admission of a will to probate goes the power and duty to construe such will, and to administer the estate of the deceased according to its terms. It is idle to say two conflicting wills of the same person, making a different disposition of the same estate, can stand probated in and be administered by the same court, at the same time. While probate courts are by statute given jurisdiction of all matters relating to the settlement of estates, they are nevertheless courts for peculiar and limited purposes, and in certain respects incapable of dealing completely with many questions relating to ordinary rights. One of their limitations, as already observed, is lack of power to set aside their own adjudications and grant rehearings, except as authorized by statute. In view of the peculiarities and restrictions necessarily appertaining to the probate courts, the legislature, in the same section by which it conferred upon said court jurisdiction of all matters relating to settlement of estates, also provided

"That the jurisdiction hereby conferred shall not be construed to deprive the circuit court in chancery, in the proper county, of concurrent jurisdiction, as originally exercised over the same matters." Section 651, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12099).

Under our probate system, this section, in its entirety, has been construed to give the chancery court jurisdiction only where an adequate remedy does not exist in the probate court, and to declare that in such contingency the chancery court does have jurisdiction to exercise its inherent equity powers, amongst which, peculiarly within its province, are fraud, accident, and mistake. People v. Wayne Circuit Judge, 11 Mich. 393 (83 Am. Dec. 754); Holbrook v. Campau, 22 Mich. 288; Smith v. Boyd, 127 Mich. 417 (86 N. W. 953); Nolan v. Garrison, 156 Mich. 397 (120 N. W. 977).

We are of opinion that the circuit court was correct in

its conclusions that the probate court was without jurisdiction, and petitioner's only forum, if any, is the court of chancery.

The judgment is affirmed.

MOORE, MOALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

RILL v. GARRITY.

EASEMENTS-DEED, EXECUTION OF-LOST INSTRUMENTS.

Evidence tending to show that defendants executed a deed under a misunderstanding as to its effect, considered and held, to be insufficient to defeat complainants' bill to establish a private alley in pursuance of the provisions of the instrument, that had become lost or mislaid.

Appeal from Wayne; Murfin, J. Submitted November 14, 1912. (Docket No. 102.) Decided January 3, 1913.

Bill by Harry J. Rill and others against John Garrity and others for the establishment of an alley pursuant to provisions of a lost deed. From a decree for complainants, defendants appeal. Affirmed.

James H. McDonald, for complainants.

Navin, Sheahan & Kennary, for defendants.

KUHN, J. This controversy is over a strip of land nine feet wide, used as an alley, in the rear of the premises of the parties to this litigation, who reside on Antoinette

street, in the city of Detroit. Originally the lots faced on Fifteenth street, but as Antoinette street was considered a better street by Joseph Colwell, who was at one time the owner of the premises, he redivided the lots into four parcels and built houses on them to face Antoinette street, laying out a strip nine feet wide, running from the old alley to Fifteenth street, for a private alley in the rear of the buildings.

Complainant Harry J. Rill purchased one of these lots, and when he had his abstract of title examined discovered that there was some doubt about the record title of this alley. He employed an attorney to prepare a deed, which was signed by all four lot owners along this strip of land. By this deed the nine feet should be conveyed to the city of Detroit as a public alley, if the city of Detroit would accept it; if not, then that each of the parties did convey his interest in that strip to the others, "for the purposes of a private alley, with a right of free and unobstructed ingress and egress, and also for any and all other purposes over and across said land for which a public alley is or may be used," etc.

This deed was properly executed by all the parties and their wives, and duly acknowledged and delivered to the city of Detroit, with a petition asking that it be accepted as a public alley. This petition, after having been referred back by one committee of the common council and taken up by another, was denied, for the reason that it was the policy of the city to accept nothing as a public alley less than 18 feet wide. Subsequently, when this deed was demanded back for the purpose of recording it as a deed for a private alley, it was lost, and could not be found. The complainants thereupon filed their bill to establish and confirm the deed by which the alley was rededicated as a private alley. It is also claimed here, although it does not appear to have been urged upon the court below, that the 9 feet became an alley by long user. A fair reading of the bill of complaint, however, shows that the

only right sought thereby was the establishment and confirmation of the lost deed.

The defendants' position is that the instrument which they signed was represented to them by Mrs. Rill as a petition to the common council of the city of Detroit, requesting the said common council to accept the 9-foot strip in question as a public alley; that Mrs. Rill stated that if the common council did not accept it the petition would be returned to the defendants or destroyed, and that, relying entirely upon the representations and statements made to them by Mrs. Rill, they, without reading the paper, signed the same; that if the instrument which they signed was the lost deed, and they had known that it contained a deed for a private alley, they never would have signed it.

Mrs.

After the paper was drafted, Mrs. Rill took it to the defendants, and they admit that it was left with them overnight, and they signed it the next evening. Rill testified that they had the deed two or three weeks. The notary who took the acknowledgment of Mr. and Mrs. Garrity testified that he asked them if it was their free act and deed, and whether they knew the nature of the paper they signed, and they answered that they did know the nature of the paper, and that it was their free act and deed. Mr. Hanna, who is a neighbor of the Garritys, testified:

We

"Mr. Garrity owns the two [lots] on the west of me. Mr. Garrity did not buy those two on the west at the same time. He bought the one next to me first. I could not say how long afterwards that he bought the one on the corner. It was more than a few weeks. I have talked with Mr. Garrity about this alley. This talk that I now speak of was before he purchased the corner. used to talk about the alley, and he was always very anxious that there should be an alley there. He had those bought at the start off, as I understand, from the People's Savings Bank, and when he heard there was no alley he withdrew his offer. He wanted to back out of the bargain. They persuaded him, or convinced him, that there

178 MICH.-88.

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