110 Mich. 556 | Mich. | 1896
This is an action of ejectment. Plaintiff recovered, and defendants James, Walter, and Harry Whiteley bring error. Numerous questions are presented in the case, but we think there is none calling for discussion, except the one relating to the defendants’ claim to the property in question, hereinafter referred to. It will suffice to say that we think the plaintiff made a prima facie showing of title, and that the objections which are urged to her proof of title are without merit.
At the close of the testimony, counsel for the appealing defendants made the claim that no proof showing that these defendants claimed title to the premises before suit
“All the real estate of which I may die seised or possessed, and all rights, claims, or interests' in real estate owned by me at the time of my death, I give, devise, and bequeath unto my son James Whiteley and my grand*558 sons William A. Whiteley, Walter J. Whiteley, and Harry Whiteley, sons of said James Whiteley, in equal proportions, share and share alike.”
The specific property in controversy is not named in the ■will, so that whether the probating of the will, or its recording, would amount to an assertion or a claim of title, in and of itself, would depend upon whether the property was in fact the property of the testatrix. It is contended by the plaintiff that, inasmuch as the statement of each of the defendants was that he claimed under the will of Elizabeth Whiteley, the fair inference is that such claim was made at least as early as the probate of the will. To sustain the holding of the circuit judge, we must be able to say that this is not only a proper, but the most probable, inference to be drawn from the testimony. Pelky v. Palmer, 109 Mich. 561. We must view it in the light of the surrounding circumstances. Unless the deed from Elizabeth Whiteley to plaintiff’s father was valid, the defendant James and his three sons, Walter, Harry, and William Whiteley, became the owners, in equal shares, under the will of Elizabeth Whiteley. This will was probated before the action was commenced, and William Whiteley made a lease of the premises, or at least a portion of them, to defendants Eulton and Peters. James Whiteley was an uncle, and Harry and Walter were cousins, of Nellie Whiteley, the plaintiff. When the action was commenced, if not before, they were apprised of the plaintiff’s claim; and, if they made no claim to ownership, the natural thing for reasonable and just men to do was to inform her that they made no claim to the premises. Instead of this, they went to the expense of employing counsel to make a defense to the action, under a plea which was sufficient to support a claim of title. In addition, each refused' to admit that he did not claim title, but asserted that he did claim interests under the will,- a few days before the case was tried; and upon the trial neither of them took the stand and testified that he was not claiming title when the action
The judgment is therefore affirmed.