122 Mich. 17 | Mich. | 1899
In 1868, Bose Marsh was left an orphan, at the age of 14, by the death of her father; her mother having died when she was 2 years old. After her mother’s death, she lived with her aunt Mrs. Griswold until 1863. From that time she lived with another aunt, Hannah Harris, and Mrs. Griswold, until 1866, after which she lived with Hannah Harris. After her father’s death, her aunt Hannah Harris obtained from her stepmother $300 in settlement of her claims against the estate
“ On Christmas night we got to talking over matters in general, and she -inquired into my husband’s affairs and into the condition of our affairs. My husband was running the store that had formerly been my uncle’s; and she was inquiring whether we had got it paid for, how much we owed on it, etc. I says, ‘ No, we have a mortgage on it to a certain amount.’ She rather inferred that my husband would not be able to pay for it. She did not admire his financiering at all. She says, ‘It will be the same with my place if I leave it to you entirely.’ She had always referred to the place, when speaking of it, as ‘mine.’ She says: ‘ It will be the same. Your husband will not be able to keep it long. It will be gone and squandered. And I think, if you are willing, it will be better for me and you and all concerned to make my will in favor of your children. It will be your home just the same. You can do just as you like. I think it will be the better plan if you are willing.’ Consequently, I thought, if it would please her,— I knew she did not like my husband very well, — I thought maybe it would please her, and make less hard feeling between them. I says: ‘I don’t care. If it would please you any better, do so. ’ She*19 says, ‘I will.’ We talked about it some time. That was the lengthy part of the conversation. It was understood then and there that she was to do it.
‘ ‘ Mr. Person: You are telling what she said, are you not? ■
“A. I am.
“Q. Tell all that was said ?
“A. As near as I can remember.
“Q. All you remember ?
“JL Yes, sir.
“Q. That is what you meant when you said it was understood ?
“A. I had understood that it was to be in the children’s name — my two children’s name — in her will in place of my own, as she had always agreed to will everything she had to me, and, instead of willing it to me, she was to will it to my two children. That was in 1888. She died in 1894, July 1st.”
On cross-examination she said:
“ Q. Will you state the language used by each of you as near as you can?
“A. As near as I can— I can’t give the exact conversation. It was something after this manner: ‘Your husband will use it up. You will not have any home for yourself, and you won’t be any better off than you are now. Consequently, I think it better to fix that so that he cannot use it; and, if I make my will to the children, your husband will be Unable to dispose of it. If this is agreeable to you, Rose, and you don’t care, we had better have that arrangement made, and I will have my will made in favor of your children in place of you.’ I answered after this manner: ‘If it will please you, aunt, I don’t care. It will do my children more good than it will me.’ That is the substance of it.”
A witness named Davis testified that he drew such a will in 1892 or 1893, and that Hannah Harris destroyed it later, and made a will devising the homestead to the defendant Adams, and some personal property to Mrs. Berry.
The bill seeks to establish a trust in favor of the children , of Rose Marsh Berry under the contract and arrangement mentioned. It was dismissed by the circuit court, and the complainants have appealed.
The decree is affirmed.