92 Mich. 153 | Mich. | 1892
At his death Fred A. Holcomb had a life insurance policy in the defendant company for $10,000,which had been assigned to the defendant Walter H. McBrien
Before the filing of the bill McBrien" was summoned by the administrator into the probate court and examined orally, against the objections of his counsel, as to money and effects in his hands belonging to Fred A. Holcomb, deceased. At the close of such examination, the administrator tendered McBrien, and on the 1st day of July, 1890, the sum of $1,123.44 as the full amount of his advances, with interest, to Holcomb up to that date, and demanded the delivery and reassignment of the policy of insurance, which McBrien refused to make.
The circuit judge found that the assignment of this policy to McBrien, although absolute in form,—
“Was made by way of mortgage or security only to secure the said McBrien for certain sums of money which the said Walter H. McBrien had theretofore advanced to the said Holcomb, as well as the premium money which the. said McBrien should thereafter pay upon the said policy of insurance.”
He also found that the amount so advanced, with interest up to July 1, 1890, was $1,123.44, the same sum tendered by the complainant, as administrator, to said
The defendant McBrien appeals to this Court.
It is claimed by the appellant that the court erred in permitting the insurance company to pay the amount of the policy into court, and to discharge such company from any further payment of interest. The court did not err in this respect. The insurance company plainly evidenced, by all its acts before suit, that it was willing to pay the whole sum due upon the policy to the proper person, when such person should be designated and determined by the court. It was proper and lawful to pursue the course here adopted, and to release such company from all further liability on the payment of the money due upon the policy into court. There would have been no equity in continuing this company as a party to a litigation in which it had no personal concern, or to have forced it to pay interest while the administrator and McBrien were fighting to see who should have the fund.
It is further contended that it was incompetent to admit in evidence in this case, as the declarations of McBrien, his testimony taken against his objection in the probate court. It is true that the testimony of McBrien was illegally taken in the probate court. The statute under which it was taken plainly provides that it shall be upon written interrogatories. There is no authority in law, by statute or otherwise, for an examination of McBrien orally in the probate court. Palmer v. Circuit Judge, 90 Mich. 1; How. Stat. § 5877. But it does not necessarily follow that the testimony given
There was error in pérmitting Mr. Cook and other witnesses to give in evidence the declarations of the deceased in his own favor, but, striking this out of the case, we are satisfied that the assignment, although absolute in form, was not so intended between the
There is some difficulty in arriving at the sum justly owing by Holcomb, at the time of his death, to McBrien» Mr. McBrien testified, both in the probate court and also in the present suit, that Holcomb was owing him about $6,000. Five thousand dollars of this sum McBrien claims is owing to him for the sale of a half interest in a patent right to Holcomb. Holcomb was an inventor, and the money first advanced to him by McBrien was to help him in the procurement of patents. McBrien advanced several hundred dollars to Holcomb, and received assignments of an undivided half interest in two^ patents. Holcomb also took out an insurance policy for $5,000, and assigned it to McBrien. This policy was permitted to lapse. In one of these patents, Dr. Parker, of Grand Eapids, held a half interest before it was assigned to Mr. McBrien. McBrien testifies that he let Holcomb have $250 to buy this interest of Parker in October, 1887, and that in April, 1889, he reassigned such half interest to Holcomb for a consideration of $5,000, which has never been paid to him; and such an assignment is brought into court, and was recorded in the patent office on April 11, 1889. At the same time McBrien swears that the agreement was that Holcomb should insure his life for $10,000, and assign the same absolutely to McBrien, and the present policy was taken out under such agreement, McBrien to pay the first
The decree is affirmed, with costs of this Court to complainant. The insurance company will also be allowed costs against defendant for the printing of the brief of its counsel.