114 Mich. 266 | Mich. | 1897
Harriet E. White, wife of John B. White, died in December, 1893, leaving a will which devised all of her property to claimant after her debts were paid and $100 set aside to care for a cemetery lot. Her will was probated March 10, 1894, and claimant was appointed as executrix. Claimant and Mrs. White were sisters. Prior to the probate of the will, Dr. White and claimant had some discussion about the terms of the will, and it appears Dr. White deemed the will unjust to him, and announced a purpose of contesting it. Mrs. Ewers agreed to satisfy the doctor if he would not oppose the probate of the will, and the will was admitted to probate without opposition from him. In September following, as appears by the testimony offered on behalf of claimant,, a full discussion of the matter in difference was held. It is claimed that on this occasion the doctor admitted that he had acted for his wife in making loans and investing money, and that he had an amount of money in his hands belonging to her, and reported that, if the terms of the will were carried out, it would not leave him a bed to sleep on; at the same time insisting, however, that, as the furniture was bought during the matrimonial relations, it belonged to him as much as to his wife. Dr. White had an estate of his own, amounting to about $20,000. According to the testimony offered on claimant’s behalf, it was fully agreed that claimant would not insist upon payment of the indebtedness of Dr. White to his wife’s estate, or assert any claim to the furniture, if the doctor
The court instructed the jury that claimant was not entitled to recover on the agreement to devise to her one-fifth of the estate, as this agreement would be invalid, under the statute of frauds. The court also held that, whether Mrs. White was the owner of the furniture or not, there had been no conversion of it during the lifetime of Dr. White, and that, therefore, there could be no recovery on that ground. The court charged as follows:
‘‘ The sole question submitted to you is whether or not, as claimed by the claimant, in September, 1894, an arrangement was reached as claimed, whereby Mrs. Ewers released her claim to any moneys in the hands of the doctor which he held as the agent of Mrs. White in her lifetime. If there was such an arrangement made, and she did so release that money, then the question that is submitted to you is the amount of money remaining in the doctor’s hands, at the time this agreement was made, belonging to his wife’s estate. As that money, if such an agreement was made, afterwards went into the body of his estate, in the opinion of the court she should be entitled, in this case, to recover the amount of moneys he actually held in his hands at the time the agreement was made, as the agent of his wife; and that is the sole question that is submitted to you.”
It will be seen, therefore, that the issue finally presented to the jury was very narrow. There are, however, a large number of assignments presented. We shall deal with those only which arise upon questions as to rulings which might have affected the result, and shall pass over others.
“It is claimed that, if he was indebted to his wife’s estate or to his wife in the amount or in any amount they may claim, that the statute of limitations has run upon the claim; in other words, it is outlawed. The claimant makes no claim here for anything except moneys that he held in his hands belonging to Mrs. White, as her agent, at the time this agreement was .made, if it was made at. all. Now, for such moneys, if any remained in his hands, the statute of limitations would not run until a demand was made. No demand is shown to have been made by Mrs. White upon the doctor for this money.”
It is insisted that the evidence does not show that there were no debts. This question was not contested on the trial. Mrs. Ewers testified that there were no debts. The will was probated in March, 1894, and this case was tried in May, 1896. The statute (section 5888, 2 How. Stat.) does not imperatively require the appointment of commissioners, and, when noné are appointed, creditors are not barred from proceeding. Id. §§ 5902, 5946. We think, therefore, that there was sufficient evidence to show prima facie that there were no debts.
Other points are discussed, but an examination of the record satisfies us that no error was committed to the prejudice of the defendant.
Judgment affirmed.