an order of the probate court removing Robert B. Rice as executor of the will of Robert Rice, deceased, and appointing Stephen H. Clink as administrator of the estate.

Robert Rice died November 23, 1904, leaving a will, whereby his estate was devised to his five children. Emily G. Darby, one of his children, petitioned the probate court for letters testamentary to be issued to her brother, Robert B. Rice. The will was probated in April, 1905. At that time Robert B. Rice had some business interests in Oregon, and spent part of his time there. Later, he removed his family to Oregon, and became a resident of that State. The estate was by him converted into cash, and the money resulting therefrom was withdrawn by the executor from the Muskegon bank and deposited in an Oregon bank, which failed shortly after such deposit was made.

It appears that Emily G. Darby, a widow, had resided with her father and mother for five years prior to the death of her father, and had taken such care of them as their age and infirmities demanded. The mother died about one year before the death of the father. Mrs. Darby filed a claim in the probate court for her services, which was allowed in March, 1906, at the sum of $3,558.91. This claim, with interest, now amounts to about $4,000, the estate, to about $5,000. The executor has never filed an account in the probate court and has never paid the said claim or any part thereof. The learned circuit judge filed written findings of law and fact. He held that the order of the probate judge removing Robert B. Rice as executor and appointing Stephen H. Clink as administrator was properly made and should be affirmed. Counsel for the executor urge four reasons for reversing the action of the court below, as follows:

(1) The circuit judge did not decide the case as upon a hearing and trial de novo, but decided it upon the question as to whether the probate court had the right and authority to remove the executor, and as to whether the

order of removal was rightfully made, and as to whether the appointment made by the probate court should be disturbed.

(2) No showing was made in the circuit court for the removal of the executor, as Mrs. Darby was estopped from asking for the removal on the ground of nonresidence.

(3) There was no other showing before the circuit court authorizing the executor's removal.

(4) If the executor should have been removed, some one other than Mrs. Darby's attorney should have been appointed.

The first contention is answered by the return to the writ wherein the learned circuit judge says:

"This respondent further returns that the judgment in this cause was made and entered by him upon the testimony and showing made upon the trial of the appeal of said matter on behalf of the petitioner Emily G. Darby, and that he did try said matter de novo and entered judgment accordingly."

We are of the opinion that the second ground is untenable. It is true that at the time the will was admitted to probate Robert B. Rice spent a part of his time in Oregon, but the record shows that he did not take up his residence there with his family until some time after he became executor. We think that his change of residence, coupled with the fact that the funds of the estate were by him withdrawn from the jurisdiction of the court, and the further fact that for more than two years he had failed to file with the probate court any account of his dealings with the estate, afforded ample ground for his removal as executor.

As to the third reason urged, we are of the opinion that no good reason is shown why the appointment of Stephen H. Clink should be disturbed. He is attorney for Emily G. Darby, who is entitled to somewhat more than fourfifths of the estate, nearly all of which belongs to her in her character as sole creditor of the estate. She being the one most largely beneficially interested, and the ap

pointment of Clink being satisfactory to her, it should stand in the absence of other reasons militating against it. See In re Sprague's Estate, 125 Mich. 357, 365 (84 N. W. 293), and cases cited in that opinion.

Judgment affirmed.

OSTRANDER, HOOKER, MOORE, and MCALvay, JJ., concurred.

PATTINSON v. FLAYER.1

1. STATUTORY CONSTRUCTION-JUSTICE'S TRANSCRIPTS - JUSTICE'S COURTS-APPEAL AND ERROR.

A local act which authorizes the taking of an appeal from justice's court in the city of Detroit after motion for a new trial forms an exception or modification to 1 Comp. Laws, § 845, providing for transcripts to the circuit court after judgment in justice's court.

2. TRANSCRIPT FROM JUSTICE'S COURT-VACATING.

On an appeal being taken from judgment in justice's court, an order may be entered vacating a transcript of the judgment taken to the circuit court under 1 Comp. Laws, § 845, pending a motion for a new trial in justice's court.

Certiorari to Wayne; Murphy, J. Submitted June 23, 1909. (Docket No. 84.) Decided July 15, 1909.

Case in justice's court by Nellie M. Pattinson against Solomon P. Flayer for damages to personal property. Plaintiff recovered judgment, and defendant appealed to the circuit court. Plaintiff took a transcript from the judgment to the circuit court, pending the appeal. An 1 Rehearing denied December 10, 1909.

order vacating the transcript judgment is reviewed by plaintiff on writ of certiorari. Affirmed.

G. Lewis Carter (A. W. Sempliner, of counsel), for appellant.

Friedman & Smilansky, for appellee.

MOORE, J. Plaintiff sued the defendant in the justice's court for the city of Detroit, and obtained judgment for $109.25 on the 21st day of January, 1908. On the 28th day of January, 1908, she filed a proper affidavit under the general statute, and obtained a transcript of said judgment, which was docketed with the clerk of the circuit court for the county of Wayne. Upon the 25th day of January, 1908, a motion for a new trial was made in the justice's court in said cause by defendant, which motion was on January 31, 1908, denied. On January 31, 1908, the defendant appealed said cause to the circuit court for the county of Wayne. An execution and an alias execution were issued under said transcript, but no proceedings were had thereunder, as action was stayed by the circuit court. Two motions were made to stay the execution, and, under a stipulation filed, they were regarded as a motion made to vacate the judgment entered upon the transcript, and the said judgment transcript and the transcript were vacated. It is sought to review this action in this proceeding. Counsel for plaintiff say the only question in issue is whether a valid transcript could be taken on January 28th, and, if taken, should have been set aside.

Counsel for defendant suggest that there is another question, to wit: Can a transcript of a justice's court judgment, issued by virtue of section 845, 1 Comp. Laws, cut off the right to appeal or render nugatory an appeal even though taken by virtue of, and in strict accordance with, Act No. 475, Local Acts 1903 ?

The provisions of the general law in relation to transcripts from justice's court which have been in force a

great many years are to be found in sections 845, 846, 847, 1 Comp. Laws.

Sections 755, 860, 861, 1 Comp. Laws, provide for the immediate issue of execution after the judgment is entered in certain cases. Our attention has not been called to any case holding that the sections of the statute last above named would cut off the right of appeal given by the general statute.

Act No. 475, Local Acts 1903, relates to the justices' courts in the city of Detroit. Section 21 provides as follows:

"The justice before whom any case has been tried, and verdict or judgment rendered, shall have the same power and authority to set aside the verdict or judgment, and grant a new trial therein upon legal cause shown therefor, as the circuit courts of the State possess: Provided, That a motion in writing be made and filed with the clerk of said justices' courts within five days after the rendition of verdict or judgment in said case. Said motion shall briefly and plainly set forth the reasons and grounds upon which it is made. Affidavits upon which the motion is founded shall also be filed at the time of filing said motion, and notice of the hearing of such motion, with copy of the motion and affidavits filed as aforesaid, shall be served upon the adverse party, or his attorney, at least two days before the hearing thereof. Such motion shall be determined within two days after the same shall have been heard and submitted, and such motion shall be submitted within one week after the same shall have been filed. The time for taking an appeal from judgment, in case such motion be not granted, shall begin to run from the time when such motion shall be overruled. In no case shall the pendency of such motion stay the issuing and levy of an execution in such case; but in case of a levy under execution pending such motion, no sale of the property so levied on shall be advertised or made until the final determination of such motion."

There is no ambiguity in this language. The contention of the plaintiff involves the holding that there is an inconsistency between the provisions of the general law and of the local act which is the later act. In such a case the