39 Mich. 714 | Mich. | 1878
Mrs. Probasco made a claim against Mrs. Simpson’s estate for $668.69 and the commissioners allowed it at $669.12. Cook as administrator, appealed to the circuit court, and a trial there took place before the judge sitting without a jury, and he made a general finding in favor of the claimant for $684.70.
When parties tacitly agree to conduct a litigation blindfold, and to make no disclosure of their difference except by producing testimony, as they choose, it can hardly be expected that a court of error will exhaust itself in endeavors to revise the points they make on the admission of testimony, or put any harsh construction on rulings admitting it. We shall not take trouble to
The substance of the matter would seem to be that Mrs. Simpson bought of 'Mrs. Probasco a parcel of real estate for $1600, and made arrangements for payment through a Mr. Friend, who was representative of the estate of her former husband, a Mr. Davis, out of her dower. interest in the Davis estate; and which dower interest she at the same time placed in Friend’s hands for that and other purposes. That up to her death the parties acted on this understanding, and Mr. Friend her trustee, who had no personal interest whatever, converted a considerable part of the dower interest into money and paid the same to Mrs. Probasco, who acknowledges the payment. That a portion of the original debt, and being the sum demanded in this cause, remains unsatisfied and is unquestionably a lawful claim against Mrs. Simpson’s estate.
The papers and arrangements were made substantially at the same time and as parts of one transaction and they should be viewed together. They are not clear. Upon their face, however, they indicate that Friend took the dower interest from Mrs. Simpson in trust to apply the proceeds on the debt of Mrs. Probasco, and moreover suggest a call for extrinsic facts and explanations, and we discover in this record no fault in the rulings. Catlin v. Birchard, 13 Mich., 110; Colman v. Post, 10 Mich., 422; Kimball v. Myers, 21 id., 276; Bowker v. Johnson, 17 id., 42; Vose v. Morton, 5 Gray, 594; Stoops v. Smith, 100 Mass., 63; Hubbard v. Gurney, 64 N. Y., 457; Hebbard v. Haughian, 70 N. Y., 54; Forbes v. Watt, L. R. 2 Scotch & Div. App., 214; Wharton’s Ev., §§ 1031, 1032 and notes. The circumstance that the fund Mrs. Simpson placed in the hands of her trustee to pay the debt had not been wholly consumed at her death, does not affect the liability of her estate for the debt. The remains of the fund still belong to her estate, and her representatives cannot compel Mrs. Probasco to look after them.