215 Mich. 167 | Mich. | 1921
This chancery appeal presents questions of fact alone. George McKenzie was a carpenter and builder. He came to Lansing in 1866 from Canada where he had several brothers and sisters. His brothers' and sisters all seem to have had families, but he never married. He was industrious and thrifty and in 1903 was the owner of four houses well located in Lansing and all occupied by tenants. He was living in rooms over a drug store. He was at this time over 60 years old. Willena Murray, the mother of
In the fore part of December, 1918, Mr. McKenzie’s condition became such that his family physician was called. He had a growth on the side. The doctor, being apprehensive that it was a cancer, advised an operation and one was arranged for the 17th. On December 18,. Mr. McKenzie executed the deed which is sought to be set aside by these proceedings. It was prepared by a reputable attorney of Lansing and conveyed three houses and the lots upon which they were located, Mr. McKenzie having theretofore sold one of his houses. The deed by Mr. McKenzie’s directions was placed in the hands of J. Edward Roe, then cashier of the Lansing State Savings Bank, with written instructions to retain until his death and on the happening of that event to be delivered to defendant. - At the same time two certificates of deposit issued by the City National Bank for $1,000 each were placed in escrow with the president of that bank with like instructions. The operation revealed that Mr. McKenzie had a cancer and that he was beyond relief. He died on December 29th.
Plaintiff, a nephew of deceased, files this bill on behalf of himself and other nephews and of nieces asking relief on the ground of mental incapacity and undue influence. A careful reading of this record discloses not a scintilla of evidence tending to show mental incapacity. If we accept the) contention of plain
It developed upon the hearing that Mr. McKenzie in his lifetime gave defendant some bank stock, Liberty bonds and money. The amount was not as large as claimed by plaintiff but it was substantial. But the property was the property of Mr. McKenzie and it was fori him to control its disposition. Whatever he gave we are satisfied was given by his own free act and was not the result of undue influence. Some witnesses testify to statements made by defendant which it is claimed by plaintiff’s counsel sustain plaintiff’s claim of undue influence; these she denies. Counsel also assail her testimony given in the case and make much of it. She made a poor witness for herself, there is no doubt about this. We do not regard' as important whether she made the statements attributed to her or not, or whether she herself was a finished witness, as the disinterested testimony overwhelmingly establish these facts: That deceased had agreed when they came here to give defendant and her mother what property he had left at his death if they would live with and care for him during his remaining days; thiit defendant faithfully kept her compact; for 15 years she cared for her uncle; during that time plaintiff never visited him, and but two or three others who are now seeking his property ever came to see him and they only on occasions when they were in the State for other purposes; that the deed was the free
If the deed was delivered to Mr. Roe as testified to by the attorney who drew it with the written instructions produced on the trial as wei believe it was, it was a good delivery in escrow and was not testamentary in character.
But plaintiff’s counsel insist that the deed was made to defeat the State of its inheritance tax, that the amount of revenue stamps on it was not sufficient, and that it should be set aside because made with intent to defraud the Federal and State governments. It would be a sufficient answer to this contention to say that no such grounds are stated in the bill as a basis of relief. But we are satisfied that the claim has no foundation in fact. While Mr. McKenzie may have been advised by some layman without knowledge on the subject of taxes, as we have already stated he made this deed pursuant to a fixed purpose, with both a legal and moral obligation resting on him so to do. He did what a normal conscientious man would under like circumstances be expected to do. His nearest relatives were nephews and nieces. All of them neglected him save one; that one gave him 15 years of her life; he appreciated' her services in the highest degree; by the execution of this deed he discharged his compact with her and his duty to her. There is nothing upon this record that would justify us in disturbing this deed.
The decree will be affirmed, with costs.