Grand Rapids herald. [volume] (Grand Rapids, Mich.) 1892-1959, 1893-04-15
FRED Is NOT SOUND
TIE Onglnal Proceedings in the
Leonard Case Affirmed.
SUPREME COURTS OPINION
Handed Down by Ja-sioe McGrath
Yesterday - The Cclebrased Case
Arirned With Costs.

The following is the get of the su
preme courts opinion. written by jus
tice McGrath and handed down yester-
day. affirming the Judgment II the CIR
cult court In the matter 81 the estate IL
Fred IL. Leonard.
This case comes here 10y certiorari di-
rected Ia the circuit court for the
county OF Kent Fred II. Leonard Mas.
by the probate court II said county,
upon the petition Of his brother. AL
Judged mentally Incompetent 10 have
charge and management 81 himself and
property. and the Michigan Trust COM
pany. a corporation. Was appointed
general guardian ~ his person
and estate. Fred Ill. Leonard
appealed Ia the circuit court. Some
time after the appeal Was perfected anu
before the trial Of the circuit. appellant
ascertained that at the time Of the filing
az the petition in the probate court. and
at the time 81 the adjudication 81 IN
competency. and the appointment Of
the guardian. the probate Judge WAS
stakeholder in the said Michigan
Trust company. whereupon appellant
moved the circuit court for an order re
versing the order of the probate court.
The circuit Judge denied said motion
and the jury found u verdict continuing
the probate courts judgment.
Judge Perkins Was Qualified.
IL is insisted by reason 81 the disqual
iiication 81 the judge Z" probate the
court had no authority 10 issue the
citation. The statute provides that
upon presentation Of the petition the
citation shall issue. 1t was, therefore. a
mere formal order. and did not involve
the exercise 81 judicial discretion. The
question ia ruled by McFarlan VIZ Clark.
~ Mich. "a. In that case the
probate Judge. who was a legateee in the
will presented for probate. made an
order assigning "A day for the hearing.
and providing for notice by publication.
and il was expressly held that the fact
that the probate judge was named as
legatee in the instrument did not dis
qualify him. and was no objection Ia his
making formal orders that put the case
on the road To determination.
The appeal in the present case was
not alone from the appointment Of the
guardian, but from the adjudication 81
incomptcncy as well. Upon the appeal
the case stood upon the original petit
ton. The issue To be tried was that
raised by that petition. 1t was re-
trial. and so long as the probate court
acquired jurisdiction by citation. service
and appearance, it was immaterial what
errors had been committed upon the
subsequent hearing in that court. or
whether or not the incumbent Of the
- 81 .l,as Ia.
case was disqualified To hear il
and make the order appealed from or
not. The motion made In the circuit
court was 10 reverse the proceedings in
the probate court in toto. The circuit
court had no power To do so unless il
appeared that the probate court had not
acquired jurisdiction.
The appeal invested the circuit with
power to act in the premises upon the
original petition. The appeal was not
abandoned nor was any attempt made
To withdraw or dismiss it.
We're Synonymous Terms.
The jury found Fred ii. Leonard
mentally incapable" and il is con
tended that such is not finding ~
mental incompecncy within the mean
ing Of Howell's statutes 6.Dl4. The word
incompetent" is used in CHA, and the
word incapable" i'm 63l5 Clearly the
legislature regarded them AS synony
Z nous terms.
The other allegations - errors relate
tn the instructions IL the jury. and the
requests To charge. Respondent presents
forty requests. thirty eight of which
were given As presented. Two were re
4 a H.. Il l..
the instructions given.
We find no error in the record, and
the judgment is affirmed with costs
payable from the estate. 1t will lie Ger
titled accordingly.
Tho thor inst icca ,,oururrpf