Kar v. Hogan

HOGAN KAR v Opinion the Court Equity—Jury—Advisory on Chancellor. Verdict—Effect 1. equity. advisory jury not bind a chancellor does An verdict Review—Findings. Appeal Error—Equity—De 2. Novo and Appeals novo, ordinarily chancery Court of reviews cases de The giving weight judge’s findings; only considerable to the trial if finds, record, examination of the entire that it have, would to reach a different result had it position, been in the chancellor’s will the Court disturb those findings. Findings—Judge’s Error—Judge’s Appeal 3. Remarks. findings judge’s Appeals not disturb a trial even The will Court might possibly though the made a statement hearing of his decision before a declaration as construed case, not demonstrate that the the statement did entire where proofs, mind to the balance of the and a careful closed his opinion reading judge’s shows he strove to balance throughout proceedings justice’s accurately scales and he proofs supporting carefully each side. assessed the by Holbrook, Relationship—Undue Equity—Confidential 4. Influence—Pre- sumptions. prima will arise from facts A case of undue influence facie ^[1] [2, ^{[5] [4] [7] [6]} Nature Power of 20 Am Jur 3] 27 Am Jur 53 Am 16 Am Jur 158 ALR 27 Am Jur Am Jur, Jur court 715. effect of 2d, Equity 2d, 2d, 2d, Equity Trial 93. References 2d, Courts Constitutional prescribe Equity § jury’s §§ § § 43. 243. §§ 82-86. verdict in rules of Points Law 267. §§542-547. pleading, equity. in Headnotes practice, ALR 1147. or procedure. relationship as the sufficient show a conffdential presumption a rebuttable of undue influ- raises ence. op op Trial—Judges—Prejudgment Fact— Case—Questions

5. Proofs. up or A trial not make his mind render his should decision questions prior hearing there are the entire where parties given not been fact to be determined and hare full proofs argue opportunity present all their and to their implication respective positions; impar- the mere that an even provided may inappropriate. have been tial forum not 6. Constitutional Law—Due Process—Civil Matters—Criminal Process—Right to Trial. Matters—Judicial process important equally matters; in civil and Due criminal requires, countervailing minimum, at a absent a state overriding significance, persons interest of forced to settle their right duty through judicial process claims must meaningful opportunity given to be heard. a op Trial—Judges—Conclusions 7. Fact—Evidence—Court Rule. judge may A trial not make conclusions of fact which are not 617.1). (GCR1963, fully supported record. Appeal from Wayne, George Bowles, E. J. Sub- (Docket 9, 1974, mitted 1 April Division at Detroit. 16953.) 13, August No. Decided 1974. Leave to appeal granted, 393 Mich —.

Complaint by Kar and Edward W. Irene Altshu- against Hogan, ler Fred H. executor of the estate Merkiel, deceased, of Edward to avoid deed. Judgment appeal. for defendant. Af- Plaintiffs firmed. Komjathy, &

Kómjathy plaintiffs. for Stone, (George Alton P. counsel), Shirley defendant. op Opinion Gillis, J.,

Before: J. H. P. and Holbrook Valkenburg,* JJ. Van Plaintiffs, Gillis, stepchildren of H. P. J. Julia a deed because of

Kar, sought invalidate undue defendant, in favor of judgment From a influence. plaintiffs appeal. father, Kar, married plaintiffs’

John Julia in childless, Julia, remained reared plain- 1914. who though were her own children. tiffs as In 1917, which, at purchased the Kars time of farm trial, $300,000. approximately was valued at In 1953, Kar Julia married John died. Ed- signed In 1957 and Julia ward Merkiel. wills devising plaintiffs, the bulk of her estate to However, creating a life estate her husband. 1969, Julia, transaction, in a "strawman” deeded the farm to her husband and herself by the entire- 1970, ties. Julia died in and Edward in 1971. executor, Hogan, Edward’s Fred is named defend- ant in this case. disinheriting

Plaintiffs claimed that the deed should be set aside because of confidential relation- ship and undue influence. The court ruled trial that Julia Edward’s with pláced the burden on defendant to overcome the of In re presumption undue influence. Wood Es- (1965). tate, 374 Mich 132 35 An NW2d advis- ory jury plaintiffs, rendered a but the verdict disregarded findings trial court its and ruled for 1963, defendant. GCR 509.4. an

Clearly, advisory jury’s opinion does not bind Wolf, Walch, a chancellor Abner A Inc v equity. (1971). 385 Mich NW2d ordinarily This cases de chancery Court reviews novo, giving trial weight considerable to the * assign- judge, sitting Appeals by Former circuit on 6, of the Court 1963, pursuant ment to Const in 1968. art 23 as amended § op Opinion find, upon if we examination findings. Only judge’s record, that we would have entire result had we been in reach a different required to will we disturb position, those chancellor’s Estate, 192, App In re Hartman findings. (1974); Dare v O’Con 203-204; 215 NW2d 550, 554; 213 NW2d nor, (1973). of the record A review reveals a careful facts, does not convince but us trial confused have been to reach a we would result. different record, however, have examining we care- of the trial a statement

fully scrutinized be construed as declaration might possibly hearing trial decision before judge’s stated: case. The trial entire If I "I frank with able counsel. want to be difficulty this deciding nonjury, I would have no with it I think all. I hold for the defendant. all at would many, many plaintiffs have shown was [sic] shown, plaintiffs namely, opportunity of undue have disposition property influence because this was differ- thought going plaintiffs it was to be. ent from what That doesn’t make out influence; a case of undue it is opportunity an for undue influence. There is not one fact, scintilla of evidence in this case. As a matter of it sick, sick, is, contrary. got get to I is all to the She but dispose think to of one’s state of us will [sic]—most get dispose estates—many never of our of these are know, disposed thinking, you what is while are going happen going I am to when we are sick. frank counsel. very me there isn’t even a a with To quite prima plaintiff. facie case made out It is thing I you different when have the free situation jury only think a case has been made out and the question my jury is in mind is there is a case whether relationship ñduciary both as to the conñdential and I of the say undue inñuence. have to that because wife, relationship, namely, nature of the that husband and fiduciary in and of itself is a App 664 54 Mich op Opinion go merely to the on it undue therefore would supplied.) (Emphasis influence.” we do not scrutiny, After careful believe this standard enunciated statement violates Doerfler, Prosecutor County Wayne App (1968). Granted, excerpted NW2d confusing. The ambiguous court statement offered not a plaintiffs asserts that scintilla evidence, nonetheless that a jury but rules However, has been made out. common-sense believes, reading that the court and prop shows proof shifts to the burden defendant erly, of a upon proof of the existence rela Samuels, Totorean v tionship. (1974). Further, aside from the fact of

NW2d 429 marriage, the court believes not a scintilla in support plaintiffs’ evidence has been offered Indeed, plaintiffs case. themselves testified that strong-willed, their mother remained although ruling ill. This on the physically evidence does not prejudiced demonstrate a closed or mind.1 Preju dice from prae-judicare, judge "stems before one knows the facts”.2 To assume impartiality requires the fact-trier to retain a blank fairness mind, forming opinion no until the moment of ultimate judgment, misleading is both and undesir does not demonstrate judge’s able. The statement the court closed its mind to the balance of the Indeed, proofs. a careful reading trial 1 Nizer, Implosion Conspiracy, pp Cf. The 12-13: * * * year. rendered a record number of decisions in one "[A] besieged by newspapermen explain He was his achievement. " 'Well,’ said, plaintiff he T listen to the and decide the case immediately.’ " you 'Don’t listen to the defendant too?’ ask. " ” to,’ replied, T he used 'but I found confused me.’ The trial cannot be accused of this fault. 2Nizer, supra, p 12. by Holbrook, Dissent J. judge’s opinion justice’s shows he strove to balance throughout proceedings. accurately scales and side, He carefully proofs supporting assessed the each against advisory jury, concluded, disposition was the free act of Julia Kar Mer- Having carefully kiel. record, considered this we ground. find no error on this Affirmed. Costs to defendant. J., Valkenburg, concurred.

Van (dissenting). J. This writer must dis- Holbrook, many sent. This decision is result of troubled hours of consideration and reconsideration. presently

A review of the record before us re- veals a trial This of confused and difficult facts. pressed writer would be hard to find that he would required have been to have reached a different result than the trial or that he would have to reach a different result than that had he been the trial chancellor. Were it not for the ill-advised statement judge following presentation plaintiffs’ of proofs, conscientiously this writer could affirm. It occurred, unfortunate that this as otherwise the including court’s trial, conduct of the the instruc- jury, exemplary. completion tions to was After plaintiffs’ chief, case in the trial court said: "I want to be frank with able counsel. If I was deciding this nonjury, I would difficulty have no with it at all. I would hold for the defendant. I think all plaintiffs have shown was many, many [sic] plaintiffs shown, have namely, the opportunity of undue influence ent disposition because this property was differ- plaintiffs from what thought going it to be. That doesn’t make out a influence; case of undue it is an opportunity for undue influence. There is not one scintilla evidence in this case. As a matter of fact, sick, sick, is, get got but to I contrary. She all to the think us will state dispose of one’s to /sic/—most estates—many of these are of our get dispose to never know, thinking, you what is are disposed of while going sick. I am we are it when happen going To there isn’t even a me counsel. very frank with plaintiff. quite It by the is a out made prima facie case jury the free situation / you have thing when different only made out and the case has been jury think a jury there is a case is whether my mind question is relationship ñduciary the conñdential as to both say that I have to because influence. the undue wife, relationship, namely, husband and nature that therefore influence.” fiduciary relationship of itself is jury merely on undue go to the it would supplied.) (Emphasis (1965). 278, 291; 132 NW2d "Proper disposition consideration of the of the motion complicated is by presumption the influence, of undue which is usually proven by circumstantial evidence. presumption That shifts proof the burden of to the proponents when produces the contestant the facts give presumption. rise to the In order to raise the presumption of undue influence the contestant must establish a confidential or fiduciary relationship be- tween will testatrix beneficiary under the contested flowing and benefits to the beneficiary due to the relationship. Proponents here assert contestants failed to establish Proponents those basic facts. contend the only produced by evidence showing contestants a fiduci- ary or relationship confidential was the fact had frequent visits with Mrs. Kanable and then lived with just her Proponents before her demise. cite In re Cott- Estate, rell’s (1926), Mich 209 NW 842 contend- ing those facts were insufficient as a matter of law. distinguishable. There, "Cottrell the testator’s App 664 Hólbrook, by years, deceased for several daughter had lived with his business affairs. Other routinely carried on and evidence determining in those influenced presumption to raise un- insufficient facts were in influence, children had been disfavor since due other beneficiary years, while described as for several was given 'practically her daughter’ who had life’s a 'dutiful opportu- The Court held the mere to her father’. work influence, elements, absent other nity to exert undue Here, question. raise the there are was not sufficient to elements. other relationship confidential "The existence of a is a motion, properly

question of fact. The denied the jury directed verdict for resolution of that Klahm, question. Taylor App in v 40 Mich stated As (1972): 255, 264-265; 198 NW2d 720-721 " 'The existence of a or fidu- ciary relationship question of fact. In In re Wood supra, part pp 282-283, in Estate, the Court stated at 285; 132 NW2d 39: "'" point in issue is whether 'Another there was a * * * fiduciary relationship existing confidential or " "" reposed by founded on trust or confidence "One person integrity fidelity one in of another. * * * * * * very The term is a broad one. The rule relations, fiduciary embraces both technical and those informal in exist whenever one man trusts relations which ” (3d Dictionary another. Black’s Law relies ” ed), Relations, Fiduciary p or Confidential 775.’ " Estate, 'The announced in In re Wood principles supra, prior referred to this Court’s review this Klahm, (Taylor 154 NW2d 529 pertinent are to the facts of [1967]) the instant case. hand, find, the evidentiary days case at could on the basis facts, decedent, elderly in the last life, long poor of her health and that her defendants, affairs were extent taken over large placed. in her whose hands care " definitiop 'In of the broad "confi- view of the term Estate, dential relationship” as In set forth in re Wood supra, concerning and in of the facts the view close Kar by between defendants and relationship existed the case, the trial court did not in the instant deceased allowing to in error commit determine of a existence confidential relation- as to the question consequent applicability presump- of the ship and the regard influence in to the conduct of of undue tion ” (Emphasis decedent.’ toward or both defendants either in original.) Here, there was the husband and health, failing ergo, enough there was plus wife prima as a facie case. to stand evidence statement, time of the While at traveling assumption that judge was under by would be made the jury final determination (demand when, plaintiffs), for which was made by him, fact, by it was be made in in passage early reveals a determination made which, compared with the final trial when deter court, mination of trial a judgment reveals Wayne the case finally before was submitted. Doerfler, County Prosecutor v (now (1968), Judge NW2d Jus tice) Fitzgerald wrote: expected bring "A not is with him to the becomes, personality,

bench a blank mind as he necessity, his legal experience ment will composition' general experiences a life, legal training and honed his refined judicial tempera- so that the desired hopefully emerge. require To mind is blank unreasonable, appraisal subconsciously dence or the not to impartial but to demand an and clear of each new A may not. well be prejudiced way in one towards the evi- parties duty a case before him. It his permit prejudicies responsi- these his override providing forum for-the determination fair bilities controversy.” This writer is mindful that a trial judge should not up make his mind prior or render his decision App 664 54 674 Holbrook, J. Dissent where there are hearing ques- the entire parties and the of fact to be determined tions have present given opportunity full all their not been respective their argue positions. and to proofs implication impartial the mere an Even fo- provided have been may inappropriate. rum not Thomas, 93, 95; People v 210 NW2d 776, (1973), the Court wrote: erroneously "Defendant Thomas was denied an essen- process right hearing tial element of his due to a and of right his to the assistance counsel when the trial attorney would not allow his to make closing Moreover, argument. we also find that erroneously disregarded position his impartial as an settling by finally fact finder his mind before defense given opportunity counsel an review facts point from defendant’s view.” Here, presented defendant had not his case in chief, much had plaintiffs given less a chance to offer rebuttal evidence and to make their clos- ing argument. process Due is equally important See, civil matters and criminal. instance, for Shevin, Fuentes v 67, 82; 1983, 407 US 92 S Ct (1972) 1995; 556, 32 L Ed 2d (replevin action); View, Sniadach v Family Corp Finance of Bay 337; (1969) 1820; US 89 S Ct 23 L Ed 2d 349 (garnishment); Goldberg Kelly, v 254; 397 US 90 S (1970) (welfare 1011; Ct 25 L Ed benefits); 2d 287 Burson, Bell v 1586; 402 US 91 S Ct 29 L Ed (1971) (motor 2d 90 Boddie v license); and, vehicle Connecticut, 371, 377; 780, 401 US 91 S Ct (1971) (access L Ed 2d to courts divorce actions by indigents), wherein wrote: establish, first, "Prior cases process requires, that due minimum,

at a countervailing that absent state inter- overriding significance, est of persons forced to settle duty through judicial right claims of their process meaningful opportunity to given a be must heard.” bar, at in the case due to writer feels

This given not a meaning- plaintiffs were prejudgment, Lee, In Payne heard. fully to be opportunity ful (1946), 263-264 269, 275; 24 NW2d 222 Minn of Minnesota wrote: Supreme Court litigant impartial a fair and provide "The failure private rights adjudicate his which to tribunal before Const, process clause of US in violation of the due also 310; 516; XIV, Bell, 143 Va SE ALR Am Buck v Supervisors, 1342; [1925]; Board of 187 Iowa Stahl v [1920], In 11 ALR 185 the latter case the 175 NW 776): (187 Supreme Iowa Court said NW Iowa recognize, primal guaranties as a 'The constitutional providing impartial necessity that there be laws tribu- rights.’ adjudication Willoughby, See 3 nals for the (2d ed), 1124; 12 of the United States Am Constitution § Jur, Law, 635.” Constitutional § attempting judge may The trial well have case, give direction in this difficult but his inappropriate statement was that no matter poorly party how well or the case was tried each right complete hearing had the to a before a determination was made.

Additionally, discrepancies certain other mili- reversal, tate towards as demonstrate an part understandable confusion on the of the trial provides: court. GCR 517.1 upon "In all actions tried the facts without a or advisory jury, with an the court shall find the facts specially thereon and direct ment. separately and state its conclusions of law entry appropriate judg- of the brief, It will be if court makes sufficient definite, pertinent findings and conclusions the contested matters without over elaboration of detail App 664 opinion If an particularization facts. or memoran- or dum decision is and conclusions filed, be sufficient if findings it will The clerk appear therein. shall notify parties findings attorneys for both conclusions Findings of fact and of law are court. un- except provided motions as necessary on decisions findings of a circuit court 504.2. The subrule sioner, commis- adopts them, that the court to the extent shall findings Requests of the court. considered as for findings necessary purposes are not of review. No finding exception any taken to or need be decision. Findings of fact shall not be set aside clearly unless application principle regard erroneous. In the of this given special opportunity shall be to the of the trial credibility of those court witnesses who appeared before it.” complied rule;

The trial court with this court however, this writer finds that court made conclusions of fact which not fully are record supported.

The court found: absolutely "There no evidence that any there was persuasion any or undue influence of kind asserted attorney, Hogan. against Mr. It was his economic interest, prospectively, to remove the farm from the probate particular disposition estate. The as to terms sense, is, first, made property, that if get he died she would arrangement.

an understandable Human van- ity might is such that thought she well have she would outlive him and opportunity then have a full and free property do with the as she saw fit. It is a very safe guess that neither foresaw a situation where their (Em- children contesting would be property.” over the phasis supplied.)

Initially, the lack of undue part influence on the of the attorney is irrelevant. it Secondly, may while Dissent by thought that Mrs. Merkiel a rational conclusion be Merkiel, Mr. facts do not would outlive she readily While this conclusion. there was lead to strong- testimony robust, Mrs. Merkiel was that testimony woman, was that there also her willed failing that she suffered from health was pressure, high condition, diabetic, blood heart overweight. testimony There was in the years her lifetime Mrs. last two hospitalized of Merkiel was periods approxi-

three times for mately days ten each. stated:

The trial further displeasure appreciate disap- "The court can pointment children and it is just of the two not eco- They hurt their mother nomic. feel has not fol- through they thought promise. lowed on what was a her, believe, They feel much closer to than the ” (Emphasis supplied.) second husband’s children. wording says The of this statement that Mr. Mer- kiel had children. The evidence revealed that he previously had not been married and there is no basis to assume he had children of his own. judge,

In all fairness to the trial due to the proofs, any confused nature if decision was to be reached, to, measure, had in no small founded inferences and deductions. Under pressure ever-increasing court dockets and backlogs, particularly made, errors will be in cases presented vaguely as as this one. This writer has highest respect ability integrity for the judge, cognizant but is also of the truth that even the most fair of individuals on rare occasions err. require

The facts of this case reversal and a judge. remand for a new trial before another notes that there is this writer Preliminarily, that there finding in the is inconsistency internal made and the case yet facie case prima not a not faced with a mo- While jury submissible. verdict, to find it was inconsistent tion for directed scintilla of evidence but not one there was for the issues were determine that at least two prima facie Dictionary Law defines jury. Black’s case as: until contradicted and overcome "Such as will suffice proceeded A has by other evidence. case which support proof stage it will sufficient finding to that where disregarded. contrary if evidence to " litigating party prima to have a facie case 'A is said strong sufficiently in his favor is when evidence opponent prima it. A facie his to be called on to answer then, case, by is one is established sufficient rebutting evidence, evidence adduced on the other side. by only and can be overthrown In cases the some is a only question is whether there be considered prima grand jury facie or no. are bound Thus a indictment, find a true them and for this if before bill the evidence accused; prima against creates a facie case therefore, purpose, necessary for it is not Kar for the Mozley them to hear the evidence Whitley.’ defense. & ” omitted.) (Citations undue prima A facie case of influence will arise to show a from facts sufficient confidential rela- (which question fact), itself a tionship as the raises a pre- rebuttable Estate, re Wood influence. sumption of undue 278; (1965); Totorean v 374 Mich 132 NW2d Samuels, (1974). App Mich NW2d 429 Estate, Cf. In re Kanable 303- (1973), 454-455 NW2d which was an action to set a will as being product aside undue influence. The Court wrote: "The motion for directed verdict propo- made whether, nents viewing decide all competent permissible evidence and inferences light drawn ants, it in from most favorable to the contest- reasonably could return a verdict in favor Estate, of the contestants. See In re Wood

Case Details

Case Name: Kar v. Hogan

Court Name: Michigan Court of Appeals

Date Published: Aug 13, 1974

Citation: 221 N.W.2d 417

Docket Number: Docket 16953

Court Abbreviation: Mich. Ct. App.