
    Calvin R. Mower v. Jannetje Verplanke and Johannes Verplanke.
    [See 101 Mich. 209.]
    
      Appeal — Point not raised below — Probate of foreign will — Sufficiency of petition.
    
    1, A point not raised upon the trial should not be considered on appeal.
    2. A petition for the probate of a foreign will, which sets forth ■that the petitioner is interested “as a subsequent purchaser of the estate of the deceased,” is sufficient, under How. Stat. § 5800, which provides that “when a copy of such will and, the probate thereof, duly authenticated, shall be produced by the executor, or other person interested in such will, to the probate court, such court shall appoint a time and-place ' of. hearing, and notice shall be given in the samé manner '.■.'■as in the case of an original will presented for probate.’": to give .the. probate court .jurisdiction, it not., being neces7 sary to set forth the proofs of petitioner’s interest; citing Clow v. Plummer, 85 Mich. 550.
    
    Rehearing, upon- application of plaintiff, of casé reported in 101 Mich. 209.
    Submitted January 22, 1895.
    Former decision reversed May 21, 1895.
    The facts are stated in the opinion, and in 101 Mich. 209.
    
      W. I. Lillie, for appellant.
    
      Farr & Soule, for defendants.
    
      
       For cases bearing upon the construction of .. .and ¡practice under How. Stat. § 5806, see Mower v. Verplunke, 101 Mich. 209, and note; and see'Act No. 105, Laws of 1895, which repeals said section, and amends How. Stat. § 5805; so as to provide "that any will duly -admitted. to probate without the probate,, court of .any county in this State. ,in which thp testator left, real or personal .estate, and -in the place of the testator's. domicile, may be duly admitted to probate, and recorded in tliis State by duly filing an .exemplified copy, of said .will, .and of the record admitting the same to. probate, and proceeding in tl>§ manner hereinafter provided.”
    
   Grant, J.

For a statement of the issue, see same case in 101 Mich. 209. A rehearing was granted upon the statement in the motion for rehearing that the point upon which the judgment was affirmed was not raised •in the'court below. '• The:point was expressly raised anÜ argued in the brief, for the appellees, and was-nóC mentioned in the brief for the appellant. We therefore assumed that the point whs raised upon the'trial. A re-examination of the record .shows that .it was n.ot, and therefore should not have been considered in the former decision. .

•' The ground upon whiéh the court below excludéd the record of the probate of the will in the county of .Ottawa was that'the petitioner .was not interested in such' will, vyithin the meaning of How-¡Stat. § 58,06, which will, be found in the former opinion.-. The petitioner represented in his petition that he was interested “as a subsequent purchaser of the estate oí the deceased.” It was not necessary for him to set forth the proofs of his interest. This case is clearly within the reasoning of Clow v. Plummer, 85 Mich. 550. The petition was sufficient to give the probate court jurisdiction, and the record was therefore admissible in evidence.

Judgment reversed, and a new trial ordered.

The other Justices concurred.  