author: Baum, J.

text:
      In re WILLEY ESTATE. PARTRIDGE v. WILLEY.
    1. Wills — Intention of Testator.
    Intention to be ascribed to the testator is that intention demonstrated in the will’s plain language, when there is no patent or latent ambiguity in the provisions of a will.
    2. Same — Construction—Ambiguity.
    Interpretation of a will ends by consulting the document if its terms are clear and unambiguous, but if they are not, the uncertain words and phrases used are weighed and interpreted in the light of pertinent surrounding facts and circumstances which tend to indicate what the testator had in mind at the time he used them.
    3. Same — Ambiguity.
    Plain terms of a will must stand, if there is no ambiguity.
    4. Same — Power of Appointment — Question por Jury.
    Withholding from the jury the question of whether a testatrix intended by her will to exercise a power of appointment, which was granted in the will of the testatrix’s deceased husband, held, not error, where the plain language of the testatrix’s will demonstrates unequivocally an intention to exercise whatever power of appointment she may have had.
    5. Same — Undue Influence — Request to Charge.
    Refusal to give request to charge relative to undue influence in will contest was not error where the concept of undue influence there presented was not a fair, balanced, and correct statement of the law.
    References for Points in Headnotes
    [1, 3] 57 Am Jur, Wills § 1136.
    [2] 57 Am Jur, Wills § 1040 et seq.

    [4] 57 Am Jur, Wills § 341 et seq.

    | 5-11,13-16,19] 57 Am Jur, Wills § 350 et seq.

    [12,17,18] 5 Am Jur 2d, Appeal and Error § 891.

      6. Same — Undue Influence.
    Undue influence is such an overpowering of the volition of the testator by another person that what purports to be the testator’s will is in reality the will of the other person.
    7. Same — Undue Influence.
    Undue influence, sufficient to vitiate a will, must arise from unreasonable pressure upon the mind of the testator, amounting to psychological or moral coercion, compulsion, or constraint, so great that his free agency is destroyed and the volition of the person applying the pressure is substituted, ' it being unnecessary to show violence or threat of physical force.
    8. Same — Undue Influence.
    Undue influence, to be actionable, must be unreasonable and improper pressure resulting in a will which the testator would not otherwise have made.
    9. Same — Undue Influence.
    A testator may be advised, persuaded, solicited, importuned or entreated, but so long as he is not rendered incapable of acting Anally upon his own motives and so long as he remains a free agent, Ms decision is not the result of undue influence.
    10. Same — Advice—Arguments—Persuasion.
    Neither advice, nor arguments, nor persuation will vitiate a will made freely from conviction, though the will might not have been made but for the advice or persuasion.
    11. Same — Undue Influence.
    Nothing is necessarily wrong with a will which represents both the -wishes of the testatrix and the wishes of a beneficiary as long as the testatrix’s free agency has not been overcome and supplanted.
    12. Appeal and Error — Instructions — Objections — Saving Question for Review.
    Objection to charge given jury must be made when opportunity is given, after completion of the charge, out of the hearing of the jury in order to enable party to complain of error in the charge on appeal (GCR 1963, 516.2).
    13. Wills — Undue Influence — Evidence—Suspicion.
    Circumstantial evidence may be relied on to show undue influence, but, to carry the question to the jury, such circumstantial evidence must be of considerable probative force and, quite clearly, must do more than raise a mere suspicion.

      14. Same — Undue Influence — Evidence.
    Evidence merely showing an opportunity to exercise undue influence is not enough to take case to jury on that question.
    15. Same — Undue Influence — Evidence—Disposition Incongruent with Laws of Intestate Succession.
    Evidence which shows, without more, an opportunity coupled with a desire to exercise influence, plus an unequal disposition by will incongruent with the laws of intestate succession, is not enough to present the issue of undue influence to the jury.
    16. Trial — Instruction—Evidence—Burden of Overcoming Presumption of Undue Influence.
    Trial judge is not required to discuss the burden of overcoming a presumption of undue influence in terms of the scales of justice.
    17. Same — Objection—Appeal and Error.
    It would be unfair to allow one party to withhold objection to a charge to the jury and to present it for the first time on appeal (GOB 1963, 516.2).
    18. Appeal and Error — Instructions—Objection—Discretion of Appellate Court.
    An appellate court may take note of errors in instructions to jury with respect to basic and controlling issues even though objection was not made before the jury retired, but appellate courts should exercise such discretion sparingly and to prevent manifest injustice (GCR 1963, 516.2).
    19. Wills — Undue Influence — Verdict—Record.
    Verdict and judgment for proponent of will, contested on the ground of undue influence, held, not to have resulted in manifest injustice under record presented.
    Appeal from Livingston; Carland (Michael), J.
    Submitted Division 2 June 6, 1967, at Lansing.
    (Docket No. 1,978.)
    Decided December 8, 1967.
    Rehearing denied January 19, 1968.
    Wanda Partridge presented a will of Hazel M. Willey for probate. Contest made by Gary Henry Willey; Martha Willey, for herself and as guardian of Jennifer Lynn Willey, Raymond Michael Willey, and Patricia Martha Willey; Manufacturers National Bank of Detroit and John V. Boutten, as surviving co-trustees of a testamentary trust under the will of Fay H. Willey; and Manufacturers National Bank of Detroit, as executor of the estate of Fay Henry Willey, Jr., deceased. Verdict and judgment for proponent. Contestants appeal.
    Affirmed.

      Charles B. Gatesman and Joseph C. Cox, for proponents.

      Evans, Boyer & Luptak, (Basil M. Briggs, of counsel), for contestants.
   Baum, J.

This is a will contest. Wanda Partridge, the proponent of the will, is the daughter of the testatrix, Hazel Willey. Among the contestants are certain grandchildren of the testatrix. They are the offspring of the testatrix’s son, Fay Henry Willey, Jr., who died in her lifetime. His wife is also a contestant. The remaining contestants are the trustees, named in the will of the husband of testatrix, and the executor of the estate of Fay Henry Willey, Jr. The testatrix’s husband also predeceased her. His will gave the testatrix a general power of appointment over the corpus of a trust created out of his estate. She was the income beneficiary of this trust during her lifetime. Pursuant to its terms, this power of appointment could be exercised by Hazel Willey in her last will.

The contestants argue that testatrix did not intend by her will to exercise the power of appointment. They also claim that Wanda Partridge, the chief beneficiary of the will, unduly influenced the testatrix.

The contestants failed below. On appeal they raise two broad issues. First, they contend that the trial judge erred in withholding from the jury the question of whether the testatrix intended by her will to exercise the power of appointment. Second, they insist that the trial judge erred in instructing the jury with respect to their claim of undue influence.

The appellants’ first claim of error is untenable. The will contains the following provision:

“I, Hazel M. Willey * * * for the purpose of making disposition upon my death of my entire estate, real, personal and mixed, and any estate which I may have power to dispose of * * * do hereby * * * declare this to be my last will and testament.” (Emphasis added.)

After making certain specific bequests and devises, the will goes on to say:

“I give, devise and bequeath the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever nature and wheresoever situate to which I may be entitled or which I may own and any estate which I may have the poioer to dispose of at my death to my daughter, Wanda.” (Emphasis added.)

• On their face, these two clauses are clear and unambiguous. They manifest an intention to exercise all the dispositive power which the testatrix had. Patently, they extend to and exercise the power of appointment left to her by her late husband.

The evidence in this case did not develop any latent ambiguity concerning the meaning of these clauses. Counsel for appellant on oral argument conceded that these clauses were neither patently nor latently ambiguous.

The authorities are overwhelming that when there is no patent or latent ambiguity in the provisions of a will, the intention to be ascribed to the testator is that intention demonstrated in th§ will’s plain language.

The rule was announced as follows in Goembel v. Bonine (1953), 336 Mich 73, 76:

“ 'Interpretation of a will ends by consulting the document if its terms are clear and unambiguous, but if they are not, the uncertain words and phrases used are weighed and interpreted in the light of pertinent surrounding facts and circumstances which may tend to indicate what the testator had in mind at the time he used them.’ ”

In In re Farwell's Estate (1943), 306 Mich 208, 215, we find this expression:

“If there is no * * * ambiguity the plain terms of the will must stand.”

The plain language of Hazel Willey’s last will demonstrates unequivocally an intention to exercise whatever power of appointment she may have had. Under such circumstances there is no question for the jury.

We turn now to the undue influence issue. Hazel Willey had three children. Two were daughters, Wanda and Geraldine. Her third child was a son, Pay Willey, Jr. Geraldine died, quite young, in Hazel Willey’s lifetime. She had never married and had no children. The other daughter, Wanda, married and had three children. Wanda and her husband owned and operated a small ice cream parlor and country store in Brighton. They lived with their children in a home which was only a few feet from Hazel Willey’s home. Being in such close proximity, Wanda and her family had an unusually close relationship with the testatrix. Wanda and her family cared for Hazel Willey in her last illness. Wanda’s oldest child, Nancy, was particularly helpful in connection with her grandmother’s outpatient treatment at a hospital in Ann Arbor. As Hazel Willey became debilitated from cancer, Wanda took over the management of her business and affairs. For this purpose Wanda had a general power of attorney from her mother.

Hazel Willey’s son married and had four children. He and his family lived approximately 50 miles from the testatrix, but they visited her frequently. The relationship between testatrix and Fay and his family was very good. Her relationship with her son’s family continued to be good after his death.

Fay Willey, Jr., during his lifetime worked in a business which his father had started and developed. This family business was eventually absorbed by the Ex-Cell-0 Corporation. After his father’s death, Fay remained an executive employee of the Ex-Cell-0 Corporation. He appears to have prospered, and upon his death he left an estate of over $300,000 to his widow and children. He died unexpectedly of a stroke during Hazel’s lifetime. His death occurred about 6 weeks before his mother signed the will in question. His mother’s death followed his by only four months.

In 1950 Hazel Willey’s husband, by will, left approximately one half his estate for Hazel in the trust described earlier, with a general, testamentary power to her to dispose of the corpus. The rest of his estate was divided equally among his children, either outright, or in trust for their benefit. Upon the death of Geraldine in 1956, her share was divided equally between Wanda and Fay, Jr. The will of the elder Fay Willey provided that if his wife failed to exercise her power of appointment, the corpus of her trust was to go equally to his children. Thus the senior Fay Willey’s plan for disposing of his estate called for equal treatment of his children.

Hazel Willey did not follow such a plan in her will. Her will left her home to Nancy Partridge, one of Wanda’s three daughters. Wanda’s remaining children were not mentioned in the will. The will left 25 shares of Ex-Cell-0 common stock or the cash equivalent to each of the four children of Pay, Jr. All the rest and residue of her estate was given to Wanda. The stock which was bequeathed to the four children of testatrix’s deceased son was worth approximately $1,000. The home which testatrix devised to Nancy Partridge was worth something less than $25,000. The property bequeathed to Wanda under the residuary clause had a value of over $415,000.

In December of 1964, when she executed the will, Hazel Willey was of sound mind, but was bedridden with cancer in a terminal stage. She was about 65 years old at the time. She died some 3 months after signing the will.

The lawyer who drafted the will was engaged by Wanda Partridge. Before doing so, she had telephoned a lawyer, in Detroit, for such purpose. He had handled her mother’s affairs in the past. She called the Detroit lawyer at her mother’s request. Wanda testified that her mother became dissatisfied by what appeared to be delay on the part of the Detroit attorney and that her mother asked Wanda to engage another lawyer to prepare a will, leaving the selection to Wanda. Wanda testified that thereafter she called the Brighton lawyer, who ultimately drafted the will, and engaged him on her mother’s behalf.

Wanda admitted discussing with him the provisions of her mother’s will. She testified however that she only related to him what her mother had said she wanted in the will, The lawyer, who prepared the will, testified that before he drafted the will, he discussed very fully and privately with the testatrix what she wanted in it. He testified that just before the will was executed, he went over the provisions of the will with the testatrix, privately. The tenor of his testimony was that the will reflected the free and uncoerced wishes and desires of the testatrix. Wanda gave like testimony. There was virtually no direct evidence of undue influence.

There is some evidence that Wanda did not get along well with her brother, Fay. One might conjecture that Wanda sought to influence her mother against his family. On the other hand, there was some evidence that the testatrix felt that the family of Fay, Jr., was well provided for by him upon his death. This, along with the great assistance which Wanda gave her mother, and the modest circumstances of Wanda’s family, would tend to explain why Hazel Willey left so much to Wanda and so little to the family of Fay, Jr.

The appellants urge that the trial court erred in refusing to charge the jury as requested in their fourth and eighth requests and in giving legally erroneous instructions to the jury on the subjects covered by these requests. Contestants’ fourth request is in pertinent part as follows:

“I instruct you that undue influence is the conduct by which the wishes and desires of another person are substituted for those of the person who executed a will. * * * [The objectors] are saying that this undue influence caused Mrs. Willey to do something that she did not desire to do. In order to prove undue influence here, it was not necessary for the objectors to the will to show actual instances of undue influence exercised by Wanda Partridge upon her mother. Undue influence is usually proven by circumstantial evidence. You should take into account all the testimony that you have heard and decide whether or not this claimed will contains solely the wishes and desires of Hazel Willey. • In evaluating that testimony, you should take into account certain factors which tend to prove the existence of undue influence. Those factors are:
“(a) If the will is an unnatural will, that is, if it cuts off heirs-at-law or unduly benefits the beneficiary.
“(b) If the will differs from the intentions of the person whose will it purports to be.
“(c) If there was an opportunity for the one accused of exerting undue influence to exert such influence and substitute her desires for the will of the testatrix.
“(d) If the one accused of using undue influence was active in obtaining the attorney who drafted the alleged will and that person also conveyed to the attorney directions for drafting the alleged will. In addition, in this connection, you may take into account the use or failure to use by the testatrix of the particular attorney who drew the alleged will for other matters and the consistent use by her of another attorney for other matters.”

There was no error in refusing to give this charge because it is not a fair, balanced, and correct statement of the law. Landon v. Shepherd (1958), 353 Mich 500, 508 ; Mullaney v. Woodruff (1937), 280 Mich 66, 70, 71. In the first place, the definition of undue influence contained in the requested instruction is entirely too mild and innocuous in tone.

Undue influence is the overpowering of the volition of the testator by another person whereby what purports to be the testator’s will is in reality the will of the other person. In re Spillette Estate (1958), 352 Mich 12, 17, 18. While there need be no violence or threat of physical force, there must be unreasonable pressure upon the mind of the testator, amounting to psychological or moral coercion, compulsion, or constraint, so great that his free agency is destroyed and the volition of the person applying the pressure is substituted. In re Langlois Estate (1960), 361 Mich 646; In re Sprenger’s Estate (1953), 337 Mich 514, 522. To be actionable, the unreasonable and improper pressure must result in a will which the testator would not otherwise have made. In re Hannan’s Estate (1946), 315 Mich 102, 123. Such a testament does not represent the testator’s true will at all, but, in reality, represents the will of the person who influenced him. In re Anderson Estate (1958), 353 Mich 169, 172, 173.

The appellants’ fourth request ignores or understates the element of unreasonable pressure, constraint or coercion, which is necessary for influence to be characterized as “undue.” The requested instruction overlooks the proposition that there can be “due” or “reasonable” influence which is not actionable.

“The facts may show that he [testator] was advised, persuaded, solicited, importuned or entreated, but, so long as he is not rendered incapable of acting finally upon his own motives and so long as he remains a free agent, his decision is his own and the action is his own and not that of another.” In re Hoffman’s Estate (1942), 300 Mich 406, 418.
“Neither advice, nor arguments, nor persuasion will vitiate a will made freely from conviction, though such will might not have been made but for such advice or persuasion.” In re Reed’s Estate (1935), 273 Mich 334, 344; In re Hannan’s Estate, supra.

There was no error in declining to present to the jury the contestants’ overly pallid version of nndne influence.

Another portion of the appellants’ fourth request suggests to the jury that there is undue influence if the will does not contain “solely the wishes * * * of Hazel Willey.” This could be misleading, since there is nothing necessarily wrong with a will which represents both the wishes of the testatrix and the wishes of a beneficiary, as long as the testatrix’s free agency has not been overcome and supplanted. In re Hannan’s Estate, supra; In re Reed’s Estate, supra.

“ Tt is not enough that the testator’s convictions be brought into harmony with that of another. * * * His views may be radically changed, but * * * so long as he remains a free agent, * * * the will is his will.’ ” In re Williams’ Estate, supra.

A portion of the requested charge, describes as an “unnatural will”, one which “cuts off heirs-at-law or unduly benefits the beneficiary.” This characterization is highly dubious. In re Sprenger’s Estate (1953), 337 Mich 514, 522, 528, 529; In re Cottrell’s Estate (1926), 235 Mich 627, 631.

Thus, appellants were not entitled to have the judge instruct the jury in accordance with their fourth request.

They complain that the charge which was given did not permit the jury to find undue influence on the basis of circumstantial evidence, apart from evidence which tended to show a confidential or fiduciary relationship between Wanda and her mother.

The difficulty with this argument is that the appellants offered no such objection to the charge, although an opportunity to object, outside the presence of the jury, was afforded by the trial judge, after the charge was completed, pursuant to GrCR 1963, 516.2.

We might point out that this is not a situation in which the requested instruction was a proper and lawful one, which the trial judge should have given. We make no comment, here, on the effect of a failure by a litigant, to make the selfsame point after the charge as he has already made in a well-founded request.

There is another difficulty with appellants’ argument. Undoubtedly, circumstantial evidence may be relied on by contestants to show undue influence. In re Loree’s Estate (1909), 158 Mich 372. However, to carry the question to the jury, such circumstantial evidence must be of considerable probative force and, quite clearly, must do more than raise a mere suspicion. In re Langlois Estate, supra; In re Spillette Estate, supra; In re Fay’s Estate, supra; In re Williams’ Estate, supra. It is debatable in this case whether the circumstantial evidence of undue influence, apart from evidence related to fiduciary relationship, was sufficient to take the case to the jury. The trial judge concluded that, apart from the presumption of undue influence which would arise if Wanda were in a relationship of trust and confidence with her mother, the evidence, circumstantial and direct, showed at most an opportunity to exercise undue influence.

Evidence merely showing an opportunity to exercise undue influence is not enough to take the case to the jury. In re Spinner’s Estate (1929), 248 Mich 263. There is not even enough to present the issue of undue influence to the jury when the evidence shows, without more, an opportunity coupled with a desire to exercise influence, plus an unequal disposition by will incongruent with the laws of intestate succession. In re McIntyre Estate (1959), 355 Mich 238.

Admittedly, the line between evidence which merely raises a suspicion and evidence which would support a fair inference of undue influence is not an easy one to draw. The trial judge placed the circumstantial evidence in this case in the first category, except for that which tended to show a fiduciary relationship. We are inclined to agree with the trial judge’s view of the evidence. Admittedly, the point is arguable. We need not dwell on the matter, however, because, by failing to object to the charge, appellants lost the right to claim error in the charge on appeal, GCR 1963, 516.2.

The appellants argue that the trial judge erred in refusing to grant appellants’ eighth request to charge and that the charge which was given on the subject was erroneous. The eighth request to charge dealt with the proponent’s burden of rebutting the presumption of undue influence which would arise if a relationship of trust and confidence between Wanda and her mother were established by the contestants’ proofs.

In this connection, the appellants’ request would have had the judge instruct the jury that:

“The preponderance of the evidence must show that the bequest to Wanda Partridge of Hazel Willey’s residuary estate, including the trust estate created under her husband’s will, was solely the result of Hazel Willey’s full knowledge, full understanding and free will.”

The requested instruction goes on to charge the jui’y in terms of the scales of justice, metaphorically weighing the evidence favorable to the proponent on one scale; the opposing evidence on the other; and advises the jury to give the presumption weight on the contestants’ side, if the evidence on the scales is equally balanced.

The requested charge included a subtle, indirect attempt to submit to the jury the question of whether testatrix intended to exercise the power of appointment. This was the effect of the language requiring a showing by the preponderance of the evidence that the residuary bequest was “solely the result of Hazel Willey’s full knowledge, full understanding and free will.” On the issue of undue influence her free will was highly relevant. But the reference to “full knowledge” and “full understanding,” in connection with the bequest of “the trust estate” was an attempt to get to the jury, indirectly, the issue which the judge quite properly withheld from the jury: whether Hazel Willey intended by the residuary clause to dispose of the trust property over which she enjoyed a power of appointment.

Moreover, there inhered in the language, concerning “full knowledge” and “full understanding” of the testatrix, the danger of leading the jury to deliberate on such issues as testamentary capacity and mistake — issues not properly in the case at all.

The judge was not required to discuss the burden of overcoming a presumption of undue influence in terms of the scales of justice. Britten v. Updyke (1959), 357 Mich 466, 473. His charge on this subject, albeit in different language than the request, was not different in substance. Henning v. Riegler Water Well Drilling, Inc. (1960), 360 Mich 288.

For these reasons, the trial court was not required to instruct the jury in accordance with either the substance or the language of the appellants’ eighth request. Landon v. Shepherd, supra.

Appellants complain that it was error for the judge to instruct the jury that certain conduct on the part of "Wanda did not amount to undue influence without going on to say that such conduct could be taken into account by the jury with all the other evidence in the case in determining whether or not undue influence had been used.

However, we are confronted by the same situation we discussed respecting the appellants’ fourth request. The trial judge was not required by law to give instruction number 8, substantially as requested, and no objection was made to the instruction actually given on the subject. After the charge, appellants were silent, although an opportunity to object out of the jury’s presence was afforded, pursuant to GOB 1963, 516.2. The failure of the appellants to make timely objection removed the possibility of the judge’s correcting errors in the charge. This is true with respect to the subject matter covered by the fourth request as well. It would be unfair to allow one party to withhold objection and to present it for the first time on appeal. Hunt v. Deming (1965), 375 Mich 581; Johnson v. Narmore (1966), 378 Mich 491. We are not unmindful of the statement in Hunt v. Deming that “in unusual circumstances, and to prevent manifest injustice,” an appellate court may take note of errors in instructions “with respect to basic and controlling issues * * * even though objection thereto was not made before the jury retired.”

We note, however, that this observation in Hunt v. Deming seems to suggest to appellate courts that they should exercise such discretion “sparingly” and under “unusual circumstances,” for “to do otherwise would be to encourage counsel to maintain silence in the face of correctable erroneous instructions, hoarding their objections for use in the event of an unfavorable # * * verdict.”

We see nothing so unusual in the circumstances of this case as to warrant departure from the express provisions of GCR 1963, 516.2. Moreover, in this case we do not see that any manifest injustice has occurred. We say this because the evidence of undue influence is so thin that even if the issues were meticulously submitted to the jury in a letter-perfect charge, it is unlikely that the result in this case would be different.

For these reasons the judgment below is affirmed, with costs to the appellees.

Lesinski, C. J., and Quinn, J., concurred.

       For similar formulations of the rule see Morrow v. Detroit Trust Company (1951), 330 Mich 635, 643: In re McLennan’s Estate (1914), 179 Mich 595, 601.

       Accord: In re Hoffman’s Estate (1942), 300 Mich. 406, 417, 418; In re Reed’s Estate (1935), 273 Mich 334, 344; In re Fay’s Estate (1917), 197 Mich 675, 686, 687.

       See the discussion of pressure and constraint in In re Williams’ Estate (1915), 185 Mich 97, 118.

       “Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury,”

       The following decisions seem to support the trial judge’s view: In re Langlois Estate (1960), 361 Mich 646; In re McIntyre Estate (1959), 355 Mich 238; In re Anderson Estate (1958), 353 Mich 169; In re Spillette Estate (1958), 352 Mich 12; In re Vreeland’s Estate (1948), 323 Mich 316; In re Hayes’ Estate (1931), 255 Mich 338; Hoagland v. Reedy (1927), 237 Mich 691; In re Cottrell’s Estate (1926), 235 Mich 627; In re Fay’s Estate (1917), 197 Mich 675; In re Williams’ Estate (1915), 185 Mich 97.


source: Caselaw Access Project

author: Holbrook, P. J.

license: Public Domain

text:
      In re GRAY ESTATE. GLOBENSKY v. ST. JOSEPH-BENTON HARBOR MEMORIAL HOSPITAL.
    1. Trusts — Accounts—Discretionary Power of Allocation of Receipts and Expenditures by Trustees.
    Discretionary power accorded testamentary trustees to “allocate receipts and expenditures between income and principal accounts” is construed as permissive power, not mandatory, and while they could have requested direction from the court, their own aetion need only be subject to the requirement that the action be fair, reasonable, and equitable to the rights of those entitled to income and principal.
    2. Same — Fiduciaries—Annual Accounts.
    Annual aeeounts are required to be filed by all fiduciaries in the probate court (CL 1948, § 704.38).
    3. Same — Account—Fiduciary—Appeal—Fraud—Courts.
    An order of the probate court allowing an account of a fiduciary shall, subject to the right of appeal, and exeept in case of fraudulent concealment or fraudulent misrepresentation on the part of the fiduciary be final and conclusive against all persons in any way interested therein who are legally competent at the date of such order (CL 1948, § 704.39).
    4. Same — Account—Trustees—Courts.
    Allowance of annual accounts of testamentary trustees on notice is final and binding on all parties in interest, except for fraudulent concealment or misrepresentation.
    References for Points in Headnotés
    [1, 8] 33 Am Jur, Life Estates, Remainders, and Reversions § 287 et seq.; 54 Am Jur, Trusts § 288 et seq.

    Construction of specific provision of will or trust instrument giving executor or trustee power to determine what is income or what is principal. 27 ALE2d 1323.
    [2, 4] 54 Am Jur, Trusts § 497 et seq.

    [3] 54 Am Jur, Trusts § 512.
    [5, 6, 9,10] 54 Am Jur, Trusts § 632.
    [7] 54 Am Jur, Trusts § 346 et seq.

      ó. Executors and Administrators — Accounts—Probate Court Orders — Bes Judicata.
    An order of tlie probate court allowing the account of an executor or administrator is an .adjudication to which the general principles of res judicata apply.
    G. Trusts — Fiduciaries—Allowance of Accounts — Adjudication — Trustees.
    A probate court order allowing an annual accounting of trustees does not adjudicate what is not before the court nor adjudicate what is not contained in it.
    7. Same — Trustees—Principal and Income — Costs of Administration.
    The law prior to the adoption of the revised uniform income and principal act was not clear about the proper allocation between principal and income of trustees’ fees, attorneys’ fees, and court costs (PA 1965, No 340).
    8. Same — Mortgages—Principal and Income — Bemaindermen.
    Principal payments on mortgages of real property owned by trust estate are required to be charged to principal, under the general rule, unless under particular circumstances it would be manifestly unfair to the remaindermen.
    9. Same — Allowance of Accounts — Finality.
    Allowance by the probate court of 7 successive annual accounts by trustee, after proper notiee given to all interested persons prior to hearing and approval, with no appeals being taken from final orders allowing the accounts, held, to be final as to all parties and interests as to allocations of receipts and disbursements to principal and income, where all receipts and disbursements for the periods of account were actually allocated to either principal or ineome, and there is no claim that all receipts and disbursements were not fully reported or that the net ineome was not distributed to the income beneficiaries, as against contention that the eighth annual account should be permitted to revise income and principal charges of prior accounts because of claimed incorrect accounting methods used.
    10. Same — Account—Income Beneficiaries — Estoppel.
    Ineome beneficiaries who have acquiesced in allocation of ineome and principal i-eceipts and disbursements of a trust by failure to object or appeal from the allowance of the first 7 annual accounts of the trustee are estopped to obtain a reallocation in the eighth annual account of amounts already allocated ill the first 7 accounts,

      Appeal from Berrien; Zick (Carl F.), J.
    Submitted Division 3 June 6, 1966, at Grand Rapids.
    (Docket No. 2,666.)
    Decided December 8, 1967.
    Petition by Virginia H. Globensky, trustee under tbe will of Luman H. Gray, deceased, for construction of will and for allowance of amended eigbtb annual account. Objections filed by St. Joseph-Benton Plarbor Memorial Hospital. Account modified by probate court. Trustee appealed. Circuit court affirmed. Trustee appeals.
    Affirmed.

      Goodenough <& Smith, for trustee.

      A. G. Preston, Jr., for contestant.
   Holbrook, P. J.

Trustee under tbe last will and testament of Luman H. Gray, deceased, presented petition to tbe probate court for Berrien county for construction of will and allowance of her amended eighth annual account. The trustee also sought the reallocation of receipts and disbursements to income and principal by revising the inventory of assets in the trust as of July 1, 1962, showing receipts and disbursements for the first 7 annual accounts on an income and principal basis resulting in a claimed additional income and corresponding loss to principal.

Contestant-appellee, St. Joseph-Benton Harbor Memorial Hospital filed objections to the allowance of the said amended eighth annual account and the petition.

After a hearing the Honorable Julian E. Hughes, probate judge, rendered a written opinion and signed an order in accord therewith filed December 31, 1964, which stated in part as follows:

“It is hereby ordered, that the eighth annual account as amended be allowed except as follows:
“2. The principal account is not to reflect any adjustments resulting from retrospective allocation of income and disbursements prior to July 1, 1962.”

Petitioner thereupon appealed to this Court, In re Gray Estate (1965), 1 Mich App 331. We determined therein that this Court did not at the time have jurisdiction to hear the appeal and certified the proceedings back to the probate court. Petitioner then filed a claim of appeal to the Berrien county circuit court. Contestant filed a cross-appeal objecting to that part of the probate court order allowing petitioner’s amended eighth annual account covering the period from July 1, 1962, to July 1, 1963.

After a hearing, the Honorable Karl F. Zick, circuit judge, rendered a written opinion and entered an order affirming the probate court’s findings and order.

Petitioner has taken this appeal and raises for review the question: Can a trustee’s amended eighth annual account revise the beginning inventory of assets so as to reallocate receipts and disbursements between income and principal for the first 7 annual accounts previously duly allowed by the probate court?

The pertinent facts necessary to a decision appear to be as follows: The will of Luman H. Gray established 2 trusts. Trust “A” with the net income derived therefrom to be paid to the deceased’s widow and the remainder to be paid to the designate of the widow by power of appointment. Trust “B” with the net income therefrom to be paid to the testator’s father and upon his death to testator’s widow for her lifetime with the residue to the remainderman, St. Joseph-Benton Harbor Memorial Hospital. The corpus of trust “A” is to become a part of trust “B” if the widow fails to exercise her power of appointment. The widow has received all the trust income from both trusts “A” and “B” since October 1, 1961, by reason of the death of testator’s father.

The testator’s will provides in part as follows:

“I hereby empower my said trustees to demand, receive and compromise any right of action or right to realty or personalty by this will transferred; to subdivide, option, sell, exchange, rent, lease, partition, mortgage, pledge, the whole or any part of the real, mixed or personal estate in said trust; to remodel, repair or demolish * * * buildings on said real estate or any portion thereof.”

The major asset of the estate was the Gray building property in the city of Benton Harbor. It was valued in the final account of the estate dated March 1, 1955, and in the first annual trust accounting at $360,290, less a mortgage of $25,250 outstanding, dated October 29, 1948, payable $750 quarterly plus interest at 4%. Cash was listed in the final account in the amount of $23,002.17 which was distributed to the income beneficiary of trust “A” in the amount of $9,356.13 and to the income beneficiary of trust “B” in the amount of $10,692.72. The trustees borrowed by mortgage dated August 5, 1955, on the Gray building property, a total of $55,200 to pay oft the balance of $23,763.21 on the old mortgage and to purchase a 5% legacy in the estate owned by appellant Virginia H. Globensky, one of the trustees.

Appellant claims that she should be allowed by her amended eighth annual account to revise the trustees’ first 7 annual accounts so as to charge the remaindermen of the trust with additional charges by allocating certain expenses to principal formerly charged to income. This would require the remaindermen to be charged with principal payments on tlie mortgages and one-half of the trustees’ and attorneys’ fees. A schedule in the footnote discloses pertinent facts concerning the first 7 annual accounts.

In the sixth annual accounting period, the trustees again mortgaged the Gray building property for $50,000, to pay the balance of $38,013.35 on the previous mortgage with the remainder being used for capital improvements.

On April 17, 1962, the trustees mortgaged the Gray building property for an additional $120,000, to make major capital improvements to the building.

The gross income from the Gray building for the second annual period was $50,568.29 with a net of $25,830.11, which compares with the seventh annual period of income from Gray building of $37,595.54 with a net of $10,336.11. Taxes on the Gray building property for the second annual period were $5,469.69, and for the seventh annual period were $9,151.08. Other costs reflected similar increases. This indicated a definite deterioration in the net income during the most recent years.

On November 4, 1963, appellant as sole trustee filed an eighth annual account for the period of July 1, 1962, to July 1, 1963. Notice was given in the proper manner, but the hearing on the account was never held for the reason that on December 2, 1963, testator’s widow, Mary Louise Gray Howard objected to the allowance of the account.

On September 4,1964, appellant filed her amended eighth annual account and a petition to construe deceased’s will so as to require accountings to be reported on income and principal account basis. On October 23, 1964, the probate court accepted the resignation of Virginia H. Globensky as sole trustee and, with consent of counsel, appointed Robert A. Whitney and Clinton H. Maki who are presently serving as successor trustees.

The eighth annual account discloses a gross income from the Gray building of $37,137.96 with a net of $9,101.25. This account also discloses that a capital asset, i.e., 43 shares of P & G, Inc., stock valued in the trust estate up to that time at $247,-567.77 was declared worthless, and deleted from the inventory.

The first 7 annual accounts for the years commencing in 1955 to July 1, 1962, were each properly noticed for hearing and allowed by the probate court. There were no objections to these accounts and no appeals taken from the orders allowing1 them. The net income was annually distributed to the widow and father of the testator as reported in these accounts wherein income and disbursements were reported on a cash basis and allocated to income. Por the last 3 annual periods both income trust beneficiaries signed receipts in the following form:

“Received of Luman H. Gray Trusts the sum of $- in full from my distributive share of trusts (A or B) for the period from July 1, -, to July 1,-.”

These receipts wore filed with the annual accounts.

The appellant contends that a construction of the will of the testator creating' the trusts involved required annual accounts to reflect allocation of receipts and disbursements to income and principal accounts. The will provided in part as follows:

“I hereby empower my said trustees * * * to determine the division and divide trust fund-s and to allocate receipts and expenditures betiveen income and principal accounts; * * * to pay all necessary expenses, including the trustees’ compensation, appertaining to the execution of this trust; * * # to exercise all other acts necessary for the accomplishment of the purposes of this trust and needed to perform the duties of trustees.” (Emphasis supplied.)

This clause containing reference to the power of the trustees to “allocate receipts and expenditures between income and principal accounts” is an integral part of the discretionary powers granted to the trustees, i.e., “to determine the division and divide trust funds” and therefore we construe such powers to be permissive and not mandatory. The trustees could have requested direction from the court in carrying out their duties including that of making accountings or they could have exercised their own judgment, subject however to the requirement that such action be fair, reasonable, and equitable to the rights of those entitled to income and those entitled to principal.

As to the construction of the will, the probate and circuit courts properly denied reopening of the first 7 annual accounts for the purpose of reallocating of receipts and disbursements.

Appellee St. Joseph-Benton Harbor Memorial Hospital maintains that the allowance of the first 7 annual accounts by the probate court after proper notice to all concerned as provided by statute forbids the reopening of the accounts because such orders are res judicata.

Annual accounts are required to be filed by all fiduciaries in the probate court as provided in CL 1948, §704.38 (Stat Ann 1962 Eev § 27.3178[289]).

CL 1948, § 704.39 (Stat Ann 1962 Eev § 27.3178 [290]) provides as follows:

“Upon the filing of any accounting, the matter shall he set for hearing and notice thereof given in the manner provided by sections 32 to 35 of chapter 1 of this act, and thereupon the court shall proceed to settlement thereof: * * * The order of the probate court allowing any account of a fiduciary shall, subject to the right of appeal, and except in case of fraudulent concealment or fraudulent misrepresentation on the part of the fiduciary be final and conclusive against all persons in any way interested therein who are legally competent at the date of such order.”

Appellant admits that proper notice was given to all interested persons on each of the first 7 annual accounts prior to hearing and approval, and that no appeals were taken from the final orders allowing said accounts. Appellant trustee does not assert any fraudulent concealment or fraudulent misrepresentation by anyone. In the case of Raseman v. Raseman (1926), 234 Mich 237, our Supreme Court ruled that allowance of annual accounts of testamentary trustees after notice and without appeal are final and binding on all parties in interest, except for fraudulent concealment or misrepresentation. See, also, In re Peck’s Estate (1948), 323 Mich 11; Thaw v. Detroit Trust Co. (1943), 307 Mich 6.

The case of Grigg v. Hanna (1938), 283 Mich 443, is authority for the rule that an order of the probate court allowing an account of an executor or administrator is an adjudication and the general rules of res judicata are applicable.

Appellant asserts that the allowance of the prior accounts of the trustees does not prevent a subsequent account revising income and principal charges because appellant claims that the prior accounts did not establish income and principal accounts or show any allocation of receipts and disbursements to either income or principal.

Now it is true that the order of the probate court allowing an annual accounting of trustees does not adjudicate what is not before the court nor adjudicate what is not contained in it. MacKenzie v. Union Guardian Trust Co. (1933), 262 Mich 563 and Grigg v. Hanna, sufra. In the first 7 annual accounts practically all receipts were allocated to income, including items usually allocated to principal, vis.: first annual account, proceeds from sale of land to Clarence Martin in the amount of $181.27 ; third annual account, payment on principal from P & G-, Inc., note, $553.43, sale of real estate, $300; seventh annual account, payment of principal on P & G, Inc., note, $263.22. The sixth annual account for trust “A” contains a statement that $41,539.14 represents receipts from capital assets and loans used for Gray building remodeling (itemized in remodeling schedule) and a similar statement in the trust “B” accounting of $47,466.94. The remodeling schedule contains an item for $14,090.60 representing “gain on sale of Benton Harbor State Bank stock.” The proceeds from the bank stock sale were allocated to principal by reason of being used to pay for remodeling.

Appellant makes no claim that all receipts and disbursements were not fully reported in the first 7 annual accounts, nor that the net income was not shown on each account and distributed to the income beneficiaries. Even though proceeds from the sale of the principal account were reported as income and some of the disbursements were claimed to have been improperly charged to income instead of principal, yet all receipts and disbursements for the periods were actually allocated to either principal or income. The probate court had all the facts before it and we conclude that the allowances by the probate court of the first 7 annual accounts were proper and final as to all parties in interest.

■ The law prior to adoption of the revised uniform income and principal act was not clear in regard to the proper allocation between principal and income of trustees’ fees, attorneys’ fees, and court costs as appears from a reading of the annotation, “expenses of trust administration, such as court costs, costs of litigation, bond premiums, attorneys’ fees, et cetera, as payable from income or corpus.” 124 ATYR, 1183. These charges in the first 7 annual accounts were reasonably charged in total to income. As to the allocation of principal payments on mortgages the general rule would require such payments to be charged to principal, unless under peculiar circumstances it would be manifestly unfair to the remaindermen, 90 CJS, Trusts, § 276, pp 372, 373.

It is pertinent to point out that at the beginning of the trust estate, there was present in the principal account the following: real estate valued at $361,015, subject to a mortgage of $25,250 and an outstanding legacy of 5% (purchased by mortgaging the Gray building property) in the amount of $31,206.48 leaving a net value of real estate of $304,558.52 and personal property valued at $288,-364.56, less $20,048.85 paid to the income beneficiaries, leaving a net of $268,315-71, making a total of $572,874.23 for real estate and personal property in the principal account.

During the period representing the first 7 annual accounts, we find (not including borrowed money) a total income of $354,739.02. The sale of Benton Harbor State Bank stock of $14,090.60 was used in paying for improvements. The total net income disbursed by the trustees to the income beneficiaries during this same period amounted to $160,437.34. At the end of the seventh year the real estate owned by the trusts was the Gray building property apparently still valued at $360,290 less outstanding mortgages then totaling $170,000. In the personal property principal account, there was cash of $2,448.51,. 100 shares of Benton Harbor Malleable stock valued at $100, certificates of a yacht club valued at $700, office furniture, et cetera $1,107.87 and 43 shares of P & Gr, Inc., stock valued at $247,567.77 which in the eighth annual account was charged off as worthless. The total value of the personal property amounted to $4,356.38.

At this time (July 1, 1962), the value of the principal account of the trusts could be no more than $194,535.58 whereas on March 1, 1955, it amounted to $572,874.23. The trustee in her amended eighth annual account insisted that the principal should also be charged with an additional $87,000 to reflect claimed proper charges against principal for the first 7 annual accounts which if granted would further reduce the principal account to approximately $107,000 or less. It appears to this Court that the method of allocating expenses used by the trustees in the first 7 annual accounts was fair to both the income beneficiaries and remaindermen. The contestant-remainderman has not complained, and the widow only objected to the proposed eighth annual account because it reflected net income of only $5,767.77 for the year. This objection brought about the filing of the eighth amended annual account which has been approved by the probate and circuit courts except that changing allocation of expenses to income and principal accounts for the first 7 annual accounts was not permitted. The remainderman, St. Joseph-Benton Harbor Memorial Hospital, has not cross-appealed. The widow, the survivor of the 2 income beneficiaries, cannot now complain for she has had full knowledge and notice of the previous annual accounts and receipted in full for her distributive share for the last 3 annual periods as did the testator’s father, the other income beneficiary. The latter was an attorney and member of the law firm that handled the trust estate. We must conclude that both were fully, informed of the facts including the allocation of the expenses to income as reflected in the first 7 annual accounts. They have acquiesced in what has happened by express consent and failure to object to or appeal from the allowance of the first 7 annual accounts. Holzbaugh v. Detroit Bank & Trust Company (1963), 371 Mich 432, 436. Although there is no claim of, nor do we find, any improper handling • of the funds or accounting pursued by the trustees, the case of Sloan v. Silberstein (1966), 2 Mich App 660, 666, 667, is applicable. Though neither income beneficiary asserts herein any claimed rights contrary to the disposition of receipts and disbursements and allocation thereof made in the first 7 annual accounts by the trustees they would be forbidden to do so now by reason of the principle of estoppel.

Affirmed. Costs to appellee.

Burns and Wise, JJ., concurred.

       PA 1965, No 340 (CL 1948, §§ 555.51-555.68 [Stat Ann 1965 Cum Supp §§ 26.79(l)-26.79(18)]), effective January 1, 1966 (not applicable to tlic instant proceeding concerning the first 7 annual accounts because ot section 14 of the act).


text:
    BISSELL v. L. W. EDISON COMPANY.
    1. Contracts — -Original Impossibility op Performance.

      Original impossibility is impossibility of performance existing when the contract was entered into, so that the contract was to do something which from the outset was impossible.
    2. Same — Supervening Impossibility of Performance.

      Supervening impossibility of performance develops after the inception of the contract.
    3. Same — Impossibility of Performance — Eoreseeability.
    Whether a promisor’s liability is extinguished in the event his contractual promise becomes objectively impossible of performance may depend upon whether the supervening event producing impossibility was or was not reasonably foreseeable when he entered1 into the contract.
    4. Same — Impossibility of Performance.
    The party failing to perform a contract is exonerated, when, due to circumstances beyond the control of the parties, the performance of a contract is rendered impossible.
    5. Same — Impossibility of Performance — Words and Phrases.
    “Impossibility” means not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury, or loss involved.
    References for Points in Headnotes
    [1, 4] 17 Am Jur 2d, Contracts § 404.
    Modern status of the rules regarding impossibility of performance as defense in action for breach of contract. 84 ALR2d 12.
    [.2, 5-7] 17 Am Jur 2d, Contracts §§ 404-424.
    [3] 17 Am Jur 2d, Contracts § 406.
    [8] 17 Am Jur 2d, Contracts §§ 3, 255.
    [9] 17 Am Jur 2d, Contracts § 408.
    [10] 17 Am Jur 2d, Contracts §§ 408, 412.
    [11] 17 Am Jur 2d, Contracts §§ 404-406.
    [12-14] 17 Am Jur 2d, Contracts § 447.

      6. Same — Impossibility of Performance.
    The essence of the defense of impossibility is that the promised performance was at the making of the contract, or ■ thereafter became, impracticable owing to some extreme or unreasonable difficulty, expense, injury, or loss involved, rather than that it is scientifically or actually impossible.
    7. Same — Impossibility of Performance — Risk.
    Risk of nonperformance of a contract should not fairly be thrown upon the promisor, if an unanticipated- circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract.
    8. Same — Implied Conditions — Words and Phrases.
    “Implied conditions” are terms implied in a contract- by force of the law itself, and not because the parties had them in mind.
    9. Same — -Impossibility of Performance.
    Conditions that render performance impossible do not terminate a contract db initio, and do not vitiate what has been done and what remains to be done that is capable of execution; they do excuse performance only to the extent -to which performance is impossible, and leave what has been done .valid permitting a recovery therefor, and may not excuse performance of the remaining work.
    10. Same — Impossibility of Performance — Dredging Contract.
    Performance of plaintiff’s subcontract with highway contractor to furnish fill for highway building by dredging from river held, rendered partially impossible of performance, thus exonerating plaintiff from full performance, where plaintiff was compelled to shut down his dredging operation in the winter by the State highway department, after a water main that had been placed in the highway froze because it was inadequately protected from the weather, where the plaintiff had to keep his liydraulie dredging operation going constantly during freezing weather to prevent the river surrounding his dredge from freezing, plaintiff did not know, but defendant knew, that the highway department intended to lay the water main in such a plaee that it could freeze up during the winter,- and plaintiff was unable to resume his fill operations pur-, suant to his subcontract until he was able to break up ice in the river in spring.

      11. Same — Impossibility of Performance — Implied Conditions.
    The law inserts into contracts a clause providing legal excuse from strict performance of the contractual promise in the event that unanticipated circumstances beyond the eontem- ■ plation of the contracting parties and beyond their immediate control makes strict performance impossible.
    12. Same — Waiver.
    Waiver of a breach of contract must be a voluntary, intentional relinquishment of a known right.
    13. Same — Waiver.
    A waiver of a breaeh of contract may be shown by proof of express language of agreement or inferably established by such declarations, acts and conduct of the party against whom it is claimed as are inconsistent with a purpose to exact strict ■ performance.-
    14. Same — Waiver—Implied Waiver.
    Act of defendant highway contractor in paying plaintiff sub- ' contractor and his suppliers by 9 ehecks totalling more than $22,000 after a claimed breaeh of the contract by the plaintiff, and statement in affidavit to State highway department ' by defendant contractor that it owed plaintiff subcontractor .approximately $24,000 for work performed, held, to amount to'a waiver of the breaeh of contract by the plaintiff, if the actions of the plaintiff amounted to a breaeh of contract.
    • Appeal from' Kent; Searl (Fred N.), J.
    Submitted Division 3 June 6, 1967, at Grand Rapids.
    (Docket No. 2,611.)
    Decided December 8,1967.
    Complaint by Wadsworth Bissell, trustee of the estate of Raphael Orlando Holcomb, bankrupt, against L. W. Edison Company, a partnership comprised of John S. Edison, Robert M. Edison and William H. Edison, for services rendered defendant in furnishing fill through dredging operations for a highway. Defendant counterclaimed alleging that plaintiff breached his contract forcing defendant to expend large sums of money in performing part of plaintiff’s work. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      Cochran, Vander Ploeg & Grimm (R. Bunker Rogo ski, of counsel), for plaintiff.

      Smith, Haughey & Rice (Sherman H. Cone, of counsel), for defendant.
   Holbrook, P. J.

Plaintiff brought this action on a subcontract for services rendered defendant in furnishing fill through dredging operations for a highway in Ottawa county, pursuant to the main contract of defendant with the State highway department.

Defendant filed a counterclaim alleging that plaintiff breached his contract forcing defendant to expend large sums of money in performing part of plaintiff’s work. Plaintiff denied the counterclaim and asserted conditions beyond his control excused any breach of the contract and defendant recognized the same and allowed plaintiff to perform as he was capable.

After trial without a jury, the court found for the plaintiff against the defendant in the sum of $14,152.72 plus interest from May 19, 1959. This represented payment for the amount of fill furnished by plaintiff to defendant less credits for payments made. The court also found that defendant had waived any claimed breach of contract by plaintiff and denied defendant relief.

Defendant has taken this appeal and raises for review one question restated as follows:

Was defendant entitled to recover under its counterclaim for breach of contract?

Substantial evidence was presented to justify the following pertinent facts: On May 9,. 195.8,'L.'"W. Edison Company, defendant, contracted with-' the* State highway commissioner to construct highway approaches both north and south of the Grand river bridge on relocated US 31. The contract called for among other things the placing.of 152,698 cubic yards, of fill material on the right-of-way south of the bridge and 245,021 cubic yards of fill to be placed on the right-of-way north of the bridge. On July 19, 1958, defendant entered into a subcontract with plaintiff whereby plaintiff agreed to furnish and place a minimum of 350,000 cubic yards of soil at 45 cents per cubic yard in partial performance of defendant’s contract with the State. The subcontract provided that the highway department’s proven figures would be final measurement as to quantities.Plaintiff was to furnish the fill from the river bed of the Grand river by use of a dredge by hydraulic method.

Plaintiff started operations in the fall of 1958 on the south approach to the bridge. Work progressed satisfactorily until the week of December 4, 1958, when a water main that had been placed over the bridge to serve a boiler froze, and plaintiff’s operations were stopped by the highway department until the water main was thawed out or repaired. Mr. B. M. Edison, one of the partners of defendant, testified by way of a deposition that he knew in May of 1958 that the State planned to place the water main in the right-of-way over the bridge. He had discussed this matter with the State and thought he had convinced them that it would be better to wait until after the fill material had been placed. He did not know the water main was placed in the right-of-way until January of 1959 when plaintiff was shut down. The fact that the highway department intended to place the water main in the right-of-way was not stated in defendant’s contract nor in the State’s specification's. The plaintiff had no knowledge at the time he entered into the subcontract with defendant that a water main, would be constructed in the right-of-way where he agreed to place fill material.

Mr. Holcomb testified that during freezing weather it is necessary to keep the hydraulic operations going 24 hours a day in order to prevent the river surrounding the dredge from freezing. He said he was shut down by the highway department for 30 days commencing in December of 1958 because the water main froze up. Mr. Holcomb was not even allowed to start up his operations to flush out his line and as a result, 8 lengths of his pipe froze solid. Thirty inches of ice formed in the river while plaintiff was shut down preventing further operations by plaintiff, until spring. He also testified that the water main was placed on the ground with little earth covering it and that such exposure was the cause of the freeze up.

Defendant hauled by truck some 50,000 cubic yards of fill to the bridge location in May, June, July, and the forepart of August, 1958. Later in 1959, after the freeze-up, defendant hauled all the fill material by truck to complete the north approach to the bridge.

Defendant had contracted with Paas Brothers and Mr., and Mrs. Jack D. Robinson to obtain borrow earth from their pits. Defendant’s contract with Paas Brothers was dated June 23, 1958, and stated in part:

“Whereas, the first party is a contractor and in requirement of 400,000 yards of sand or thereabouts, and,
“Whereas, second parties have available the right to remove and furnish such sand, * * *
“1. First party agrees to buy such sand at a rate of 3 1/4 cents, per cubic yard to be measured at the bridge site by a qualified representative of the State highway department.”

’Defendant’s contract with Mr. and Mrs. Jack D. Eobinson was undated but mentions the job in question. The contract states in part as follows:

“It is' further understood and agreed by and between the parties hereto that there are some previously filled areas along the said new highway IJS 31 and that the said party of the second part has previously contracted- and/or become obligated to accept a certain undetermined amount of fill from the Holcomb Construction Company to be dredged from Grand river and has further contracted and/or becomé obligated to purchase and accept a certain amount of fill from lands and premises situated in the township of Spring Lake, county of Ottawa and State of Michigan owned by one Alex Mareiniak, the said lands and premises owned by Alex Mareiniak being situated to the north of and abutting the above described lands and premises owned by the parties of .the first part.” (Emphasis supplied.)

It is evident that this last contract was made subsequent to the contract with Paas Brothers and the subcontract with plaintiff Holcomb. It is reasonable to believe it was made after the freeze-up for defendant quoted in the contract that he was obligated “to accept a certain undetermined amount of fill from, the Holcomb Construction Company to be dredged,from Grand river.” (Emphasis supplied.)

In apparent conformance with an understanding between the parties, plaintiff commenced operations to break up the ice in the river in the early part of March, 1959, and recommenced his fill operations Saturday, March 21, continuing until the middle of May, 1959, when the total fill job was completed.

Defendant’s records indicate that it did not deem the. subcontract breached for defendant paid plaintiff. and his suppliers 9 checks ■ totaling $22,498.28 subsequent to the alleged breach,

Plaintiff asserts, in reference to the issue before this Court on review, that there was no breach of the contract between himself and defendant for the reason that complete performance was impossible, and this condition was not brought about by any act or failure to act on his part. The facts in this case support the plaintiff in this contention, i.e., defendant knew in May of 1958 at or about the time of signing its contract with the State, and about 2 months prior to entering into contract with plaintiff that the highway department planned to place a water main over the bridge and in the right-of-way where defendant was to place fill material. Though defendant attempted to convince the State that such water line should not be constructed on the job until after the fill work had been completed, this could not excuse defendant’s failure to explain to plaintiff the plans of the highway department, that plaintiff in furnishing and placing fill on the job might have to contend with a water main in the right-of-way. Without this information, plaintiff was totally ignorant of a very material condition that he might face in performing his contract. The water main was placed under the direction of the highway department in August or September of 1958 in the right-of-way.

When freezing weather came, the inevitable happened — the water pipe froze because it was not covered with sufficient earth. Plaintiff had not been informed that a water main would be placed in the right-of-way where he was to work. If he had been so informed, and had also been informed that his ability to operate 24 hours a day to prevent his dredge from freezing in the river was contingent upon the water main being kept open, he may have declined the contract or charged more for his work to cover the risk.

Absent a case directly on point in this jurisdiction, we turn to 84 ALB2d 12, § 5, pp 31, 32 for light concerning the law applicable and find the following:

“Impossibility of performance may be classified as original impossibility or supervening' impossibility. The former is impossibility of performance existing when the contract was entered into, so that the contract was to do something which from the outset was impossible; whereas supervening impossibility is that which develops some time after the inception of the contract.” (Emphasis supplied.)

Section 6, p 39, states:

“According to many authorities, whether a promisor’s liability is extinguished in the event his contractual promise becomes objectively impossible of performance may depend upon whether the supervening event producing such impossibility was or was not reasonably foreseeable when he entered into the contract. Although of limited applicability (since it quite evidently does not apply to instances of supervening illness or death of a person whose personal performance is required, and perhaps in some other instances), the test based on reasonable forseeability would appear to be supported by reason and of practical working value to the courts.”

Section 9, p 51, states in part:

“According to a modern District of Columbia case, fit is well settled that when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated.’ Whelan v. Griffith Consumers Co. (1961, Mun Ct App DC), 170 A2d 229, infra, % 20 [d]. * * *
“When considering the modern version of the rule as to supervening impossibility found in section 457 of the Restatement of Contracts, supra, it must be recognized that in the Restatement ‘impossibility’ means (as stated in section 454) ‘not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved.’ See generally section 11, infra.
“Williston states: ‘As pointed out in the Restatement of Contracts [section 454, quoted supra], the essence of the modern defense of impossibility is that the promised performance was at the making of the contract, or thereafter became, impracticable owing to some extreme or unreasonable difficulty, expense, injury, or loss involved, rather than that it is scientifically or actually impossible. * * * The true distinction. is not between difficulty and impossibility. A man may contract to do what is impossible, as well as what is difficult, and be liable for failure to perform. The important question is ivhether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract. If so, the risk should, not fairly be thrown upon the promisor.’ 6 Williston, Contracts (Rev ed), § 1931.” (Emphasis supplied.)

Impossibility of performance has been considered and treated in many legal treatises. Of particular importance concerning partial impossibility which is present in the case at hand, we turn to 6 Williston, Contracts (Rev ed), § 1956, wherein on pp 5487, 5488, the authors state as follows:

“In an instructive opinion in a lower court in New York, while using the prevailing terminology of implied conditions, Bodenbeck, J., recognized that ‘these terms are implied in the contract by force of the law itself, and not because the parties had them in mind. Whether we approve of their insertion upon the theory that had the attention of the parties been called to the conditions giving rise to the application of the rule, they would have omitted any reference to them because obviously covered by the law, or upon the theory that they would have regarded them as just provisions to have inserted.’
“Since the qualification of the literal terms of the promise is imposed by the law, on principles of justice, not because of the expressed intention of the parties, the extent of the qualification depends merely on what is just. ‘The conditions that rendered performance impossible do not terminate the contract ab initio, and vitiate what has been done and what remains to be done that is capable of execution. The conditions may be of such an extent as to amount to a substantial abrogation of the entire contract, or they may relate to an insignificant part of the contract, but they excuse performance only to the extent to which performance is impossible, and leave what has been done valid permitting a recovery therefor, and may not excuse performance of the remaining work. No general rule can be laid down which will apply to all cases, but each case must be decided upon its own facts, and that this course can be taken and justice done according to the facts in each case unhampered by written rules is due to the great flexibility of the common law which is its chief merit.’ ”

Under the facts in this case, we conclude that impossibility of partial performance was present and plaintiff is excused from performing in strict compliance with his contract.

The trial court did not specifically find a breach of the contract by plaintiff but ruled that defendant had waived any claimed breach. Such ruling necessarily implies a finding that an existing contract was breached. The sole question posed by this finding is whether or not the breach is excused legally by either its waiver or by impossibility of performance. Figuratively speaking, the law inserts into contracts a clause providing legal excuse from strict performance of the contractual promise in the event that unanticipated circumstances beyond the contemplation of the contracting minds and beyond their immediate control make strict performance impossible.

Defendant cites many cases concerning the general rule that a waiver of a breach of contract must be a “voluntary intentional relinquishment of a known right.” We agree with this statement of the law.

In the case of Strom-Johnson Construction Co. v. Riverview Furniture Store (1924), 227 Mich 55, Mr. Justice Steere stated in part on pp 67, 68 as follows:

“A waiver may be shown by proof of express language of agreement or inferably established by such declarations, acts and conduct of the party against whom it is claimed as are inconsistent with a purpose to exact strict performance.”

In the case at hand, we do not have a specific statement by a representative of defendant to the plaintiff that defendant waived any claimed breach of the contract. However, we do have declarations, acts and conduct of defendant which are inconsistent with the purpose to exact strict performance which constitutes a waiver.

An important method of waving a breach of contract is set forth in one of the cases cited by defendant, Hall v. Gargaro (1945), 310 Mich 693, wherein ón p 702, Mr. Justice Boyles stated in part as follows :

“While we recognize the advantage afforded the trial court in seeing and hearing witnesses, on this record there is no issue of credibility of witnesses, and the testimony of the parties and their witnesses, as well as the exhibits received, clearly preponderate ■in favor of the defendant, that the defendant did not at any time agree to waive his claims for damages, or agree to pay plaintiff $1,539.90 in full settlement.” (Emphasis supplied.)

The defendant in the instant case through one of its "copartners made an affidavit which was filed with the highway department which unequivocally stated:

“At the present time we owe R. 0. Holcomb $24,000 approximate. He is suing us for about $200,000. We tried to settle with him but to no avail. We used Michigan State highway department quantities in figuring what we owed him.”

The disposition of the matter whether based on the theory of impossibility of performance or waiver of any claimed breach- of contract is sufficiently supported by the evidence.

■ The judgment of the trial court is affirmed.- Costs to appellee.

Bíjrns and Wise, JJ., concurred.

       See, in this respeet, the terms of 2 Restatement of Contracts, § 457, quoted infra, § 9, which refers to “facts that a promisor hacl uo reason to anticipate,”

         Kinser Construction Company v. State (1910), 125 NYS 46, 54 (Ct Cl), aff’d 145 App Div 41 (129 NYS 567), aff’d 204 NY 381 (97 NE 871).

         Don-Ray Tool & Die, Inc., v. John Hancock Mutual Life Ins. Co. (1966), 5 Mich App 263, 267.


text:
    PEOPLE v. GISONDI.
    1. Conspiracy — Evidence—Postconspiracy Declaration.
    A postconspiracy declaration by a' conspirator is admissible as proof of guilt of the declarant only, as the conspiracy had come to an end before its making.
    2. Criminal Law — Confession of Codefendant.
    Confession of a codefendant, made at the police station in the presence of defendant-appellant, held, not admissible as evidence of appellant’s guilt, where latter declined to respond’ except to state his attorney had told him to stand mute.
    3. Same — Admission—Silence.
    Silence of accused, in face of an accusation, is not deemed an admission or confession in a criminal case, unless the silence is of a suspected participant in a crime as a part of the res gestae.

    4. Same — Silence.
    Statements of a person in custody may be used in evidence against him, but his silence may not.
    5. Same — Inference from Failure to Testify.
    No inference unfavorable to a defendant may be drawn from his failure to testify in a criminal case (Const 1908, art 2, §16).
    6. Homicide — Confession of Codefendant — Evidence—Miscarriage of Justice.
    Admission into evidence, in prosecution for murder committed in course of attempted robbery, of confession of one defendant at police station in presence of defendant-appellant, held, reversible error resulting in a miscarriage of justice, where sole response of the appellant was that his attorney had told him to stand mute (CL 1948, § 750.316).

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Conspiracy §§ 35, 40.
    Admissibility as against conspirator of extrajudicial declarations of coconspirator — Supreme Court cases. 1 L ed 2d 1780.
    ’2] 29 Am Jur 2d, Evidence § 539.
    3, 4] 29 Am Jur 2d, Evidence § 525.
    ’5] 29 Am Jur 2d, Evidence § 189.
    ’6] 29 Am Jur 2d, Evidence §§ 525, 539,

      Appeal from Oakland; Holland (H. Russel), J.
    Submitted Division 2 June 8, 1967, at Lansing.
    (Docket No. 2,576.)
    Decided December 8,1967.
    Michael Gisondi was convicted of first-degree murder. Defendant appeals.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, and Robert W. Leutheuser, Chief Appellate Counsel, for the people.

      Condit, Denison, Devine, Porter & Bartush, for defendant on appeal.
   Baum, J.

This is a delayed appeal, upon leave granted, to review one issue:

“Did the trial court commit reversible error in admitting into evidence the confession of a codefendant, which was made in the presence of defendant Gisondi, as evidence of defendant Gisondi’s guilt?”

Harold Hummel and Michael Gisondi were convicted of first-degree murder by a jury in the Oakland county circuit court. It was the theory of the people that Hummel shot and killed two persons in the course of an attempted robbery in which the appellant Michael Gisondi was a participant.

The confession in question was made in the Hazel Park police station in the presence of five police officers pursuant to a prearranged plan. The officers brought about a face-to-face meeting between Hummel and Gisondi. This occurred a short time before the defendants were scheduled to be arraigned in the Hazel Park justice court.

The officers already had a number of confessions from Hummel, oral and written, including a formal statement made before the prosecuting attorney. Some of these statements implicated Gisondi, but were not admissible in evidence against him because they were made outside Gisondi’s presence. Moreover, Gisondi, himself, had steadfastly denied involvement. The officers were in need of evidence against him. They arranged the confrontation between Hummel and Gisondi for only one purpose: to elicit an incriminating response from Gisondi.

Hummel’s confessions were prompted by his mistaken belief that Gisondi had “squealed” on . him. One of the officers had so informed Hummel. In fact, Gisondi had not “squealed.” The officer gave this false information to Hummel, as an artifice, to obtain a confession. The artifice was successful.

At the Hazel Park police station, in Gisondi’s presence, one of the police officers asked Hummel: “Is that the man who was with you on the holdup and shooting?” Hummel answered, “Yes.” The officer asked Hummel whether both he and Gisondi had guns. Hummel answered, “Yes; Gisondi had a .22 pistol, he kept it in his pocket.”

Another officer asked Hummel, “Was Michael in the tavern with you when you fired the first shot?” The answer was, “Yes, I told him to get out.”

Hummel went on to relate that after the shooting Gisondi drove the getaway car.

After eliciting these responses from Hummel, an officer asked Gisondi, “Is that right? Is Hummel telling the truth?”

Gisondi answered, “My attorney told me to stand mute.”

The episode at the police station was related in evidence at trial by several police officers. Each time, there was an objection to the admission of such evidence against Gisondi.

The events at the police station toot place approximately one month after the homicides and 12 days after Hummel and Gisondi were arrested. Hummel’s p'olice station confession was not, therefore, a statement or admission by a conspirator made in the course of a conspiracy, so as to be binding upon his coconspirator.* Nor was Hummel’s accusation of Gisondi admitted into evidence on such a theory.

Hummel’s extrajudicial implication of Gisondi apparently was received in evidence on the theory that it was made in the presence of Gisondi and that Gisondi’s silence in the face of the accusation amounted to an admission by Gisondi, allowable in evidence against him under an exception to the hearsay rule.

Despite Gisondi’s motion for a separate trial, he and Hummel were tried together. Hummel’s self-implicating declaration would have been admissible in evidence against Hummel alone. However, evidence of it was not confined by the trial judge to use against Hummel. Over strenuous objections, Hummel’s police station statement was received as substantive evidence of Gisondi’s guilt.

At the trial, Hummel repudiated his out-of-court implication of Gisondi. On the witness stand, Hummel admitted the attempted stickup and shootings, but testified that he did “the job” alone, without any participation whatsoever by Gisondi. Hummel testified that his extrajudicial implication of Gisondi was an invention inspired by anger against Gisondi— made out of whole cloth, resulting from his belief that Gisondi had informed on him.

We turn now to the theory that Gisondi’s silence in the face of an accusation was an admission, allowable in evidence under an exception to the hearsay rule. A serious question can be raised as to whether Gisondi was really silent in the face of an accusation. His lawyer had instructed him, with a view to the arraignment, that he was to stand mute. To stand, mute is a defensive posture in criminal' proceedings which admits nothing. Gisondi may have¡ thought that he was admitting nothing by saying, “My lawyer told me to stand mute.”

Silence in the face of an accusation is received in evidence under certain circumstances on the theory that such silence indicates acquiescence in the accusation. But here, there is a serious question whether Gisondi intended any such acquiescence by his statement.

The dubious characterization of Gisondi’s conduct as an admission is not the pivotal issue. The outcome of this case would be the same even if we were dealing with a true case of admissive silence in the face of an accusation.

This case was tried in 1953. Under Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L ed 2d 882), the appellant cannot claim the benefit of the decisions of the United States Supreme Court in Escobedo and Miranda as precedents, retroactively binding upon this Court. Nevertheless, under longstanding Michigan precedents, which antedate Escobedo and Miranda, the accused’s silence in face of an accusation is not deemed an admission or confession in a criminal case (People v. Bigge [1939], 288 Mich 417), except when such silence occurs on the part of a suspected participant in a crime as a part of the res gestae (People v. Todaro [1931], 253 Mich 367).

The reason for the Bigge rule is clear. Without it, the constitutional privilege against self-incrimination would he vitiated. The privilege gives a man under arrest the right, with impunity, to be silent in face of an accusation. While, under certain circumstances, the statements of a person in custody may be used in evidence against him, his silence may not. This is a corollary of the age-old Michigan rule, now made applicable by the United States Supreme Court to all states via the Fourteenth Amendment, that no inference unfavorable to the defendant may be drawn from his failure to testify in a criminal case.

Without the Bigge rule, a man under arrest could be accused and forced to reply on the pain of silence being used as proof of guilt. If he replied to the accusation, his reply might also be used in evidence against him. This would make a mockery of the privilege against self-incrimination.

Hummel’s extrajudicial statement was admitted into evidence in violation of G-isondi’s constitutional right not to be a witness against himself.

Hummel’s police station statement was the most significant and damaging piece of evidence against Gisondi. It must have influenced the jury. Its admission into evidence was prejudicial error which resulted in a miscarriage of justice. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).

We are constrained to bold that tbe trial judge erred in denying tbe appellant’s motion for a new trial. Tbe ruling is reversed and tbe case remanded for a new trial.

Lesinski, C. J., and Quinn, J., concurred.

       CL 1948, § 750.316 (Stat Ana 1954 Rev § 28.548).

         People v. Chambers (1937), 279 Mich 73, 79; People v. Trilck (1965), 374 Mich 118.

       2 Wharton’s Criminal Evidence (12th ed), §417, p 18G: Lutwak v. United States (1953), 344 US 604, 618, 619 (73 S Ct 481, 489. 490, 97 L ed 593, 603, 604).

        Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L ed 2d 977); Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 Led 2d 694).

       Const 1908, art 2, § 16, in effect when Gisondi-was tried, provided that “No person shall be compelled in any criminal case to be a witness against himself.”

        Yep v. United States (CA 10, 1936), 83 F2d 41.

        McCarthy v. United States (CA 6, 1928), 25 F2d 298.

        Knowles v. People (1867), 15 Mich 408, 413: Carne v. Litchfield (1852), 2 Mich 340, 344.

        Griffin v. California (1965), 380 US 609 (85 S Ct 1229, 14 L ed 2d 106). '