31 Mich. 313 | Mich. | 1875
Without attempting to summarize all the facts set forth in the bill, some of the leading features will be mentioned. In 1837 the complainant intermarried with Minerva E. Rumsey, daughter of Henry Rumsey. They resided at Ann Arbor, and complainant and bis wife lived together until ber death, which occurred on the 26th of April, 1871. Her only heirs at law, as the bill states, were Melville L. and Avery B. Rumsey, sons of ber deceased brother, Julius C. Rumsey.
In 1854, as is claimed, complainant owned lots nine and twelve, in block three south of range nine east, in Ann Arbor, and proceeded to erect a brick dwelling upon them, which was completed in about two years; that the premises owed their chief value to the building, and that such value was about six thousand dollars; that whilst the
The complainant further alleges that in 1871 he owned two lots adjoining the two deeded to his- wife, and that he and his wife, in March of that year, joined in a deed to one Smith, by which they conveyed to the latter a part of one of complainant’s lots, and a part of one of his wife’s lots, for one thousand five hundred dollars; that three hundred dollars of this purchase price was paid down, and the balance, being one thousand two hundred dollars, was secured by bond and mortgage to be paid at a future day; that complainant, being ignorant of the destruction of the will, and the execution of the trust deed, consented that the bond and mortgage should run to his wife, which was done. And complainant alleges that his wife, in keeping from him the destruction of the will and the execution of the trust deed when this bond and mortgage were made to her, committed a fraud upon him, and he insists that these securities belong'in equity to him.
The trustees having caused the building to be insured, and it having subsequently been wholly or mostly destroyed by fire, the complainant makes charges against the trustees concerning their settlement of the loss, and also charges them with neglect in not restoring the property.
The particular relief sought is, that the trust deed may be declared void; that the provisions of the will may be
The defendants answered, and among other things denied all fraud, and denied the making any agreement between complainant and his wife as set up in the bill. The defendants also claimed that complainant had recognized the validity of the trust deed, and of the trust, and had applied to the trustees for, and received from them, pecuniary assistance, pursuant to the trusts specified in the deed. And besides other matters of defense not necessary to be repeated, it was insisted that the bill did not make a case for equitable relief. '
Eeplications having been filed, proofs were taken, and on final hearing the court, passing on the merits, decreed the particular relief prayed by complainant, and defendants appealed.
The foregoing statement shows the nature of the case, and the real basis of complainant’s present demand for equitable redress. There may be room for contending that the bill is not upon its face quite consistent, but this circumstance is of no practical moment. It was not its object to affirm the trust, and thereupon insist upon its execution, or call the trustees to account for dereliction of duty, although some features would seem to have been framed upon that theory. On the contrary, it is expressly averred that the trust deed was and is wholly void, and this is alleged to be owing to the force and effect of the supposed partly executed agreement between complainant and his wife. The supposed irrevocable nature of the will is claimed to have been caused by this agreement, and the purpose of complainant is, to enforce the early transactions
Adhering to this view it is at once apparent, that whatever claim complainant can set up for relief in the case, as constituted, necessarily depends upon the alleged agreement between himself and his late wife, and whatever might be the event under legal rules if that agreement were established, it is clear that unless as matter of fact such an agreement was made, his present claim is without any foundation. As his wife was confessedly the holder of the property, she was entitled to deal with it, and dispose of it in any lawful manner, unless her holding or power of disposal was hampered by some valid arrangement, and no other arrangement is pretended except the before-mentioned agreement.
Unless, then, the complainant has succeeded in proving as matter of fact the existence of that agreement, unless it has been satisfactorily shown that the alleged arrangement actually occurred between himself and his late wife, his whole case utterly fails, and all other points, either of fact or law, become unimportant.
If there was no such agreement, or what is the same thing so far as this litigation is concerned, if the proof is -not satisfactory to establish it, then all controversy about the execution of the will, its revocation, and the right to revoke it, is at once fruitless and immaterial.
Now, on turning to the evidence, it will be seen, that if such . an agreement as is set tip was ever entered into at all between complainant and his wife, it was not in writing, but verbal, and made without witnesses, and when the parties were alone together; and that the proof of it depends upon the testimony given by complainant in his own behalf, and the testimony of his brother’s wife. As
To say the least, it is difficult to reconcile this action of complainant with the claim now set up: that to his knowledge the whole property belonged to him in consequence of the agreement his wife had made with him, and that on the same ground the trust was entirely invalid. It is quite impossible to withhold from this circumstance any and all influence upon the question whether, in point of fact, there was or was not such an agreement as is now asserted. On the contrary, as matter of evidence, it tends strongly to negative. the existence of the supposed agreement, and more especially when we reflect upon the nature of the evidence to establish the agreement.
Passing this circumstance, we come to the testimony given by complainant to make out this vital part of his case. He assumes to swear that an agreement was in fact made, but he is wholly unable to fix the date of it. He cannot give the day, the month, or even the year. He does not describe or define the occasion, and his statements about the matter are not entirely accordant.
But this infirmity of memory is not the only thing to cause hesitation in accepting his representations.
He swears under a very strong bias. He is interested to the extent of the claim he sets up. He is interested to the extent of the costs of the litigation. Oh the whole, it is not unreasonable to infer, from what appears in the record, that he has dwelt for some time upon the chance there might be to get the property his wife formerly owned, and that, going back with a feeble memory to recall casual conversations held with his wife many years ago in the freedom and privacy of their married life, conversations never intended at the time to constitute any agreement, or be made public, he has at last come to think, under the promptings of interest, that in point of fact an agreement such as he has described was actually entered into.
Upon the best view I am able to take of this testimony, I cannot rest upon it. Aside from its intrinsic weakness on several grounds, it is strongly opposed to any reasonable view of his wife’s conduct and motives. He charges that she acted fraudulently towards him when she gave the deed of trust and ignored the contract to will the property to him. The case is, however, clear that he was idle and dissipated, and that his support and the preservation of the estate were almost entirely due to her providence and industry, and the evidence also favors the opinion that whatever remained had come from her father’s estate or bounty, and justly belonged to her.
These surrounding facts militate in favor of the disposition she made to the trustees, and against the allegation
In view of complainant’s attitude as party and ivitness, there is another point not undeserving of notice.
He is asserting his right, on the strength of the supposed verbal agreement made privately between himself and his wife, to overturn her conveyance to the trustees, and, on the same reason, to be recognized as executor, legatee and devisee under the will he claims she made and destroyed. When he assumed to testify to the verbal agreement, his position, if not literally within the terms of the statute against admitting a surviving party to a transaction to testify in certain cases (Comp. L. 1871, § 5968), was clearly within its policy, and, in my judgment, he was not a proper witness to prove the making of the contract.
It remains to notice his sister-in-law’s testimony, introduced to prove the agreement.
Her deposition was taken in Jane, 1873. She resided in Jackson, and she claimed to remember that, on the occasion of a visit paid her by complainant’s wife, from ten to thirteen years before, and being unable to fix the time more definitely, that lady, in a casual conversation when they were alone, informed her that the lots in Ann Arbor occupied by the house and barn had been deeded to her to release them from a mortgage of her husband’s father, and that in consideration of the grant she was to will, and had willed, the property to complainant.
The witness did not pretend to remember the words used by Mrs. Mundy, and only assumed to relate the substance, according to her recollection of it, and she observed at the same time that when the statement was made she felt no interest in it, as it did not concern her. She was unable to give the season of the year, or identify the occasion, or distinguish the particular visit from many others paid her by complainant’s wife. She could not recollect even, whether the complainant accompanied his wife on this
She admitted that for ten or twelve years from 1840, she was not on friendly terms with complainant’s wife, bat she afterwards observed that she meant by this that she was so situated they could not visit.-
It would be a waste of time to comment at length on this piece of testimony. The veracity of the witness is not questioned; but the force of her evidence, to convict her deceased sister-in-law of a plain fraud, overturn a trust acquiesced in by complainant for more than a year and a half, and shift titles to real estate, may well be doubted. The wife of complainant, could not be called to give her version or make explanation. She could not be produced to refute the witness’s recollection or correct any error into which she may have fallen. When we look at all the circumstances, do we feel convinced that the witness correctly heard and understood what her sister-in-law said; that she collected in her memory the true substance, and has preserved it there, notwithstanding she took no interest in it, for from ten to thirteen years ? She did not attempt to give any other conversation with her sister-in-law, or the substance of any, and her memory was greatly at fault about every other incident of this visit except the substance of the particular conversation. But what she calls the substance of the conversation is her present idea of the result of what, according to her recollection, her deceased sister-in-law told her.
She does not undertake to'repeat a single word used by her sister-in-law, and whether or not she is correct in her idea as to the substance, cannot be found out from any thing she states. The chances for her being wrong are great and various. The failure to catch a word, or the misunderstanding of a word, or a slip in getting at the final meaning, would be enough to spoil the effect of the evidence. A faulty recollection in regard to the words uttered, or their connection, might do so.
Whatever there is of evidence here, to show the contract alleged between complainant and his wife, falls far short of this, and is wholly insufficient, and I think the case breaks down on this vital point. Having reached this result, it is unnecessary to examine the legal points, or consider how the case would have stood if the verbal agreement had been fully substantiated.
The decree below should be reversed, and the bill dismissed, with the costs of both courts.