author: Steere, J.

text:
    BUCK v. LOCKWOOD.
    1. Equity — Bill of Complaint — Multifariousness—Pleading— Estates of Decedents.
    It was not a ground of objection to a bill of complaint, filed against a decedent’s estate, for an accounting and the allowance of a note against the estate and to set aside a deed of trust property by a trustee defendant, that it was multifarious, where all the defendants were interested, though separately, or in different degrees, as to the subject-matter of the controversy.
    2. Estates of Decedents — Judgment—Executors and Administrators — Res Judicata — Assignments for Benefit of Creditors.
    An administrator who is made a party to a suit as a representative of the estate binds the heirs and others having interests so as to conclude their rights.
    3. Equity — Trustees—Purchaser in Good Faith — Bona Fides— Jurisdiction.
    One who purchased from a trustee for creditors under a written instrument of trust with full notice of the facts and source of the title, could not question the jurisdiction of the court of equity, under a bill of complaint filed to set aside the transfer and enforce complainant’s rights under the trust instrument.
    4. Same — Probate Court — Trusts.
    The probate court having jurisdiction of an estate of a decedent has no power to determine the question of who should pay any deficiency that might remain after applying the proceeds of a trust assignment to the satisfaction of debts owing by the deceased or to adjudicate the rights of the trustee, beneficiary and cestui que trust, and purchaser at trustee sale; it was a proper subject for the court of equity in the county in which real property included in the trust was located; and the court properly determined the question of deficiency and whether the promissory note of decedent, which the real estate was transferred to secure, was given for the alleged purposes.

      5. Same — Exclusive Jurisdiction — Executors and Administrators.
    The jurisdiction of probate courts was meant to be exclusive, except as the court of chancery, in special cases, might render them aid or assistance, by means of auxiliary remedies as might be needful to prevent wrong and injustice, in cases where the probate jurisdiction may be rendered effectual.
    6. Same — Trusts—Conveyance to Trustee — Breach of Duty.
    Where the trustee for the benefit of creditors of an assignor was charged with wrongfully conveying the trust property to a third person, who it was understood should reconvey to the trustee, the court of equity had jurisdiction, if the trust could not be enforced without its aid, and the complexity of the various claims of the interested persons required equitable cognizance.
    7. Same — Res Judicata.
    The judgment of the probate court, not on the merits of such suit, but in effect determining that the note of decedent, presented against the estate, was not a claim against his estate, and there was no liability thereof to the trustee, was not conclusive of the issues raised by a bill of complaint to enforce the trust and determine the liability for a deficiency of the estate.
    8. Same — Fraud—Necessity of Charging.
    Because there was no charge of fraud in the pleadings, and the parties appeared, or were found, to have acted in good faith, did not preclude relief, and the right to relief did not depend on the bad faith of the trustee, whose conveyance contrary to the terms of his trust could ' be set aside, though executed in good faith.
    9. Same — Courts—Real Property — Jurisdiction.
    But the circuit court of Ionia county could not assume jurisdiction to pass on deeds given by decedent in Ingham county, which did not relate to the primary issues in the chancery case in the former county, though it had authority to pass on the deficiency and accounting, and to pass on the values of real and personal property of the decedent. The subject-matter being purely local, the court of the county in which the real property was situated alone had jurisdiction.

      Appeal from Ionia; Davis, J.
    Submitted April 20, 1916.
    (Docket No. 77.)
    Decided September 27, 1916.
    Rehearing denied December 22, 1916.
    Bill by Edwin' A. Buck, trustee, against Fred S. Lockwood, Lorenzo Webber, and others, for an accounting and to set aside certain deeds. From an order overruling separate demurrers to the bill, defendants appeal.
    Modified and affirmed.

      George E. Nichols and A, R. Locke, for complainant.

      W. T. Webb, C. H. McLean, Ellis, Mathews & Ellis, and Ellis & Ellis, for defendants.
   Steere, J.

This is an appeal from an order overruling a general demurrer or demurrers to plaintiff’s bill in chancery in the above-entitled suit filed in the circuit court of Ionia county. The learned circuit judge who heard and passed upon this demurrer in the first instance has painstakingly stated the material parts of the pleadings and reviewed the questions involved in a carefully considered and helpful opinion which, after examination of the record and authorities cited in briefs of counsel, we find sufficiently and clearly states the case and issues raised and reasons to right conclusions, except as to subdivision V, touching jurisdiction of the Ionia county court to directly decree against title to lands in Ingham county, which will be considered later. The opinion is as follows sectional references being to How. Stat. [2d Ed.]):

“I. Substantially the different demurrers raise the following questions:
“(1) That the bill is multifarious for the reason that divers distinct matters and causes in which the defendants are not jointly in any manner interested or concerned are attempted to be tried in one cause of action and under one bill of complaint.
“(2) Because the circuit court for the county of Ionia, in chancery, has no jurisdiction, inasmuch as the matters involved must be tried and determined in a suit at law in the probate court for the county of Ingham.
“(B) Because there is no privity between the complainant and any of the defendants which would enable him to call upon the defendants for the payment of any debt due from the estate of Charles E. Lockwood, deceased, to him or any of the parties for whom he- is acting.
“ (4) Because it appears from the bill that Webber was acting for the complainant and others, and that, inasmuch as no fraud of any kind is charged against any of the defendants, which would include Webber, a court of equity has no jurisdiction, under the circumstances stated in the bill, to set aside or hold for naught any conveyance or sale of the property made by Webber to the Portland Farmers’ Elevator Company.
“(5) Because the probate court for Ingham county, having assumed jurisdiction over the estate of Charles E. Lockwood, deceased, and such matters having been tried before the commissioners on claims and appealed, and the judgment of the circuit court rendered disallowing the claim against said estate asserted by Lorenzo Webber, trustee, and such judgment now being in full force and effect, that it is binding upon the complainant and the beneficiaries under the trust, and that the matters cannot be retried in this proceeding.
“II. The statement of facts made in the bill of complaint must be taken as true, and, adopting this rule, upon an examination of the bill, I find that it appears therefrom that on the 29th day of July, 1911, Fred S. Lockwood was indebted to the Webber State Savings Bank, of which Lorenzo is cashier, in the sum of $8,000, to the heirs of John A. Webber, of whom Lorenzo Webber is one, in the sum of $14,500, and to complainant in the sum of $2,000, and, being so indebted, an agreement was entered into by which said Lockwood executed and delivered to Lorenzo Webber, for the use and benefit of the parties mentioned, a trust conveyance to secure the payment of such indebtedness. By this conveyance Webber was given power and authority to take possession of the property described in the trust instrument and consisting of real estate and personal property and to continue the elevator business that Lockwood was engaged in or closest out at private or public sale, as he (Webber) might determine.
“That on the 3d day of August following the execution and delivery of the instrument mentioned Lockwood approached the complainant and said to him that he believed he could pay off the indebtedness secured if he could have more time, and it was then talked that if Lockwood would get his father, Charles E. Lockwood, to sign a note for $6,000, to be delivered to Webber as trustee as additional security, for a consideration, it would be granted, giving Fred S. Lockwood an opportunity to pay off the indebtedness, and that said note was given and made payable to the Webber State Savings Bank or bearer, delivered to complainant by Fred S. Lockwood, who in turn delivered the note to Webber as trustee, and informed him of the arrangement that he had made with Lockwood, and Webber accepted the note as additional security, placed it in an envelope, and so marked it, and in pursuance of this arrangement Lockwood went on with the business, drawing money from the bank and depositing therein to the account of Fred S. Lockwood, elevator, Lorenzo Webber, trustee.
“The matter stood in this way until September 23, 1912, when Lockwood brought to Mr. Webber a note for $6,000 due on April 23, 1913, signed by Charles E. Lockwood, which was accepted by Webber as a renewal of the original note and as additional security for the liabilities of Lockwood, represented under said trust agreement; that after this last note was given the business was carried on until January, 1913, when, for certain reasons, Mr. Webber took possession of the properties and conducted it under his personal management until the 14th day of June, 1913, at which time he closed down the plant and proceeded to advertise the property for sale at public auction on the 8th of July, 1913. Webber published notices in the different newspapers and posted the same and did all in his power to give publicity to the sale in the hope of realizing as much as possible for said property, and a fair, open sale was held on July 8, 1913. The property was sold for $9,300. There was some cash on hand, which added to the amount received from the sale of the property, and, after deducting the current debts of the elevator business, left a deficit of more than $10,-000 upon the original indebtedness secured by the trust instrument; that Webber then claimed the liability became fixed upon the $6,000 note which he held as trustee, and which was given as additional security by Fred S. Lockwood and signed by his father.
“Charles E. Lockwood died on the 5th day of March, 1913, leaving a small personal estate. His heirs at law were Fred S. Lockwood, J. B. Lockwood, Oda G. Watson, Effa G. Lockwood, and Neita Dey. On the 2d day of May, H. J. Watson was appointed administrator of his estate by the probate court for the county of Ingham. Commissioners on claims were appointed, and Webber filed his claim setting forth in an affidavit the facts, in part as hereinbefore stated, and the matter came on for hearing before the commissioners and was disallowed. An appeal was taken to the circuit court for the county of Ingham, and the case came on to be tried before the circuit court for that county on the 1st of February, 1915. From the testimony in the case it appeared that Webber had sold and conveyed the personal and real estate set forth in the trust instrument to one Jed H. Briggs; that said Briggs purchased said property at the instigation of Webber, to the end that a fair valuation might be obtained for the same; that there were no purchasers or bidders at the sale who would bid an amount which reasonably represented the true valuation of the property, and, inasmuch as there were no bids in excess of the amount bid by said Briggs, the property was struck off to him for $9,300 by Webber as trustee, who thereafter made conveyance to Briggs in pursuance of the sale, and on the 12th day of July, 1913> Briggs and his wife conveyed to Webber, as trustee for the beneficiaries under the trust instrument given by Lockwood.
“At the close of trial of the case á motion was made on behalf of the 'estate that, inasmuch as the sale was invalid and void for the reason that Webber, as trustee, could not, under the law, convey the premises and property to Briggs for the purpose of having Briggs reconvey the property to him as trustee, the claimant was not entitled to recover upon the note because there was no valid sale, and therefore it could-' not, in the circuit court, on the law side thereof, be determined whether or not there was a deficiency so as to fix the liability upon said note so delivered to the said Webber as trustee as additional security to the general indebtedness of said Fred S. Lockwood; that after the argument of this motion the court decided and determined that the complainant was not entitled to recover, for the reason that the sale was invalid and void and conveyed no title, and that there was no way to determine in this case whether or not there was a deficiency upon the note, and thereupon directed a verdict against Webber as trustee.
“On the 24th of October, 1913, Webber and his wife conveyed the real estate and some of the personal property to the Portland Farmers’ Elevator Company,who thereupon took possession ’thereof, and who is now in the possession and control of the property; that the company, through its officers and representatives, understood and knew of the sale and of all of its conditions and how made and the purpose thereof, and took said property with full notice of any defect in title or any invalidity of the sale; that under the ruling and judgment of the circuit court for Ingham county there has been no valid and legal sale of the premises, and the whole matter stands as if no sale had been made, and that under such conditions there was no way of determining the question as to whether there is a deficiency between the actual value of the property coming into the hands of Lorenzo Webber, trustee, and the amount of the original indebtedness, to secure the payment of which said trust agreements were executed and delivered, except by a court of equity upon an accounting, or by setting aside the deed so given to the Portland Farmers’ Elevator Company and reselling said property and accounting for the sale of the personal property at its true and actual value, as near as may.be; that upon such an accounting either by way of charging Lorenzo Webber, trustee, with the full value of all the property in his hands upon the 8th of July, 1913, the date of the sale, or by a resale of the property, there would be a deficiency or shortage in either case of at least $10,000, and the full and complete liability upon said note so given as additional security would thereupon become fixed and determined, and the complainant and his cobeneficiaries would be entitled to the benefits and advantages which would arise from the fact of having said note as additional security for said indebtedness.
“Charles E. Lockwood before his death was possessed of real estate in Ingham county worth $10,000 and upwards. On the 1st of February, 1913, he conveyed this property to the defendants Oda G. Watson, Effa G. Lockwood, and Neita Dey, his daughters, for a consideration of love and affection only, and after-wards Oda G. Watson and Effa G. Lockwood conveyed their interests to Ora W. Dey and Neita Dey. On the same day Charles E. Lockwood conveyed other lands to J. B. Lockwood, his son, for a consideration of love and affection only, and they afterwards conveyed that property, so that by mesne conveyances the title passed to James R. Fisher and Mary E. Fisher, two of the defendants.
“The estate of Charles E. Lockwood has not been closed nor the administrator discharged, and the personal property is wholly insufficient to pay the claims allowed and the expenses of administration. The real estate so conveyed must be made subject to the payment of these claims and of this claim, if it is paid at all, and upon these facts the complainant asks the following relief:
“(1) That Lorenzo Webber, trustee, come to an accounting of all the property received under the trust deed and conveyance from Fred S. Lockwood, and that he be charged with the true, just, and reasonable value thereof.
“(2) That the conveyance made by the said Lorenzo Webber as trustee to the Portland Farmers’ Elevator Company be set aside and held for naught; or, in case the court shall so determine that the true value of said premises so conveyed at the date of said conveyance to the said company be fixed and determined by the court, and that Webber be charged with the sum, together with all moneys and property that he has received by virtue of his office as trustee.
“(3) That the amount of indebtedness to said Webber as trustee be also fixed and determined, and the-amount of property he should be charged with on such accounting be applied thereon and the deficiency, or shortage, if any, be fixed and determined by the court to the end that the liability of the said Fred S. Lockwood to the complainant and the other beneficiaries under the trust be fixed and determined, after the aplication of all the properties, moneys, and effects that the said Lorenzo Webber as trustee may be found charged with, as hereinbefore prayed.
“(4) That the purpose and object of the delivery of the $6,000 note by Charles E. Lockwood and Fred S. Lockwood to the said Lorenzo Webber, trustee, be determined and adjudged, and the liability fixed thereon, and that, if said notes were given as additional security to the general indebtedness of Fred S. Lockwood, and upon a fair accounting there is a deficit equal to the whole or any part of the notes, then and in that case the property of the said Charles E. Lockwood, deceased, be made subject to a lien for the purpose of the enforcement and collection of the note.
“(5) That unless the parties to whom this property has been conveyed, or their grantees, pay such sum as the court shall find due upon this note within a reasonable time, that the deeds of conveyance to them of the property of the said Charles E. Lockwood, deceased, be set aside and held for naught, so far as the rights of the beneficiaries under the trusty are concerned, and they be given a lien thereon, with power to sell, for the purposes of enforcing the decree.
“(6) That, after the application of such sum, whatever deficiency or shortage or balance, if any, there may be, that a judgment or decree be rendered against Fred S. Lockwood individually, and he be required to pay the same, in default thereof that execution issue in the usual form, and that the complainant have general relief.
“III. Considering the different grounds of the demurrer, I have no hesitancy in deciding that the ground of multifariousness is not well taken, and as a matter of fact it has not been seriously urged, either upon the briefs filed or upon the argument on the part of counsel for the defendants, and as a matter of fact in their reply brief counsel for the defendants admit that the real object and purpose of the bill of complaint is to have allowed or get allowed against the estate of Charles E. Lockwood the note in question. Counsel for complainant takes the same view of the matter, and upon that question both counsel agree, and I think myself that such is the sole purpose and object of the bill. Therefore, under all of the holdings of the cases as I find them, the bill cannot be said to be multifarious. It seems to be the settled law that a bill is not multifarious if it be single as to its subject-matter and object thereof and the relief sought if all the defendants are connected, though differently, with the whole subject-matter of the dispute, and again, when the object of the bill is single, to establish and obtain relief for one claim in which all the defendants may be interested, or is not multifarious, although the defendants may have different and separate interests. Puterbaugh’s Mich. Chancery, p. 21; Payne v. Hook, 7 Wall. (U. S.) 425. There are many Michigan cases upon the subject which are cited in the brief of counsel for the complainant that uphold this doctrine, especially the case of Hulbert v. Detroit Cycle Co., 107 Mich. 81 (64 N. W. 950). In that case the complainant filed a bill.for the sole purpose of impounding all the assets of the debtor to pay his debts, and it was held that he might join every person as a defendant to whom the debtor had conveyed his property, and it was stated to be the established rule that a creditor may make all such parties defendants, and thus avoid a multiplicity of suits, and that, though the matters set forth in the bill are distinct, yet, if justice can be administered between the parties without a multiplicity of suits, the objection of multifariousness will not prevail. Therefore I feel that I am obliged, under all the authority, to overrule the demurrers to this bill upon the ground of multifariousness.
“IV. A more serious question, to my mind, is that raised by the second ground of the demurrer, and that is that the question of whether or not the estate is liable should be determined by the probate court for Ingham county, and that the circuit court for the county of Ionia in chancery has no jurisdiction.
“It becomes necessary at the very outset to determine whether there is a deficiency or not. In fact, that was the point that ruled in the trial before the circuit court for the county of Ingham. There the court held, upon motion of counsel for the estate, that, the sale of the property being invalid and void, it was to be treated as if no sale had been made; also that there was no way in a court of law to determine whether there was any deficiency or not, and for that reason, as I understand it, the claimant was non-suited.
“There is no ■ question, I think, as to the general rule that the administrator representing an estate, when a party to a cause can bind by his acts the heirs of the estate, and moreover, the judgment of the court in an action of that character is binding upon all, and, that being true, it follows that the judgment of the circuit court for the county of Ingham is binding upon all of the parties, except, perhaps, the Portland Farmers’ Elevator Company, and as to that it is not important or material, for the only interest that defendant has in the controversy is to protect its title which it received from Lorenzo Webber, trustee, and, knowing all the facts in relation thereto, and just what had been done, so that it took the title with full knowledge of how Webber obtained it and with notice of its weaknesses and defects, if any, it is not in a position to question the jurisdiction of the court in this case.
“The probate court for Ingham county has no power to determine the question of deficiency, or to grant any relief, under the circumstances. That has been ruled. Now, then, what court has jurisdiction? It cannot very well be questioned but what the parties directly in interest on the question of deficiency are the Portland Farmers’ Elevator Company, Fred S. Lockwood, Lorenzo Webber, trustee, and the complainant and those in whose behalf the bill is filed. All of these are residents of Ionia county, and the property is located in Ionia county which was covered by the trust deed over which this difficulty arises, and so I take it that the question of deficiency, if any, is triable in this court, and no other court has jurisdiction.
“The question next to be determined is whether this note was given for the purpose alleged. Of course, so far as the demurrers are concerned, that fact is admitted, and there is no occasion for the interposition of the probate court, but considering the answers, which deny the allegations in that regard, nevertheless has this court of equity power to determine that question under the facts and circumstances of the case? That seems to be the exact question raised by the second ground of the demurrer.
“The powers and jurisdiction'of judges of probate courts in Michigan will be found in sections 12098 and 12099 of the Michigan statutes [5 How. Stat. (2d Ed.), 3 Comp. Laws’1915, § 13764], and it has been held uniformly that the probate court has exclusive jurisdiction in. the matter of the allowance of claims against an estate with certain exceptions. See Nolan v. Garrison, 156 Mich. 397 (120 N. W. 977), also Davis v. McCamman, 165 Mich. 287 (130 N. W. 691).
“In Holbrook v. Campau, 22 Mich. 288, it was said:
“ ‘And we have no doubt that jurisdiction in those courts was meant to he exclusive, except as the court of chancery, in exceptional cases, might render them aid and assistance by means of such auxiliary remedies as might he needful to prevent wrong and injustice before the probate jurisdiction could he rendered effectual.’
“Applying these rules to the facts in this case, and the further rule that where, instead of a complexity of controversies between the parties with respect to the same subject-matter, the complexity arises from there being involved the several rights of more than two, each attempting adjustment and each requiring at law a separate action, equity will take jurisdiction of a suit to which all are parties, and therein adjust all rights and determine the whole controversy.
“I am satisfied that under ample authority this court has jurisdiction to determine not only the question of the deficiency, but the further question as to whether the note was given for the purpose claimed and set forth in the bill. In other words, equity once having acquired jurisdiction, it will retain it to give such full relief as will finally dispose of the entire controversy, and, this being the view of the court, the demurrers upon the ground of want of jurisdiction of this court are overruled.
“V. It has been urged very strongly in the brief and in the argument that the demurrer should be sustained as to the defendants, the heirs of Charles E. Lockwood, to whom he conveyed his property, and their grantees, for the reason that, although this court might have jurisdiction to determine the question of deficiency, yet it had no jurisdiction over the property in Ingham county, and could not set aside any conveyance made for the purpose of aiding and assisting any 'decree rendered by this court by way of a judgment upon such note or otherwise.
“The statutes of this State upon the question of reaching property where the same has been conveyed when there is not sufficient assets to -pay the debts of the deceased will be found in sections 11064, 11074, 11075, and 11076 of the Michigan statutes [4 How. Stat. (2d Ed.), 3 Comp. Laws 1915, §§ 13849, 13859-13861], Under this statute H. J. Watson could file a bill to set aside those conveyances, and, if he refused to do so, then the creditors could proceed direct. See McFarlan v. McFarlan, 155 Mich. 655 (119 N. W. 1108). In that case it has been held by the Supreme Court of this State that there is no question but what a court of equity in a direct proceeding instituted on behalf of a creditor, upon leave of the court, where the administrator has refused to act, could file a bill for the purpose of reaching the property.
“Now, then, applying also the rule as to settling all questions in controversy, and once for all ending the litigation and avoiding a multiplicity of suits, I am satisfied that the circuit court for Ionia county, in chancery, has power to make the necessary orders and decrees to the end that the property described in the bill as belonging to the estate of Charles E. Lockwood, deceased, may be charged with this debt in this case, and that the conveyances may be set aside, if necessary to satisfy the same, and for that reason I think that this ground of the demurrer must be overruled. Moreover, it is my opinion that section 11951 of the Michigan statutes [4 How. Stat. (2d Ed.) 3 Comp. Laws 1915, § 12340, subd. 12], providing that in every suit in chancery affecting real estate, and where real estate is situated in different counties, it shall be competent to file a bill in equity in either of the counties in which the real estate or a part of it may be situated, and that this section of the statute gives this court jurisdiction.
“VI. It is claimed that the bill charges no fraud, and therefore a court of equity has no jurisdiction. I have not been impressed with this point very much. The bill, in a way, is to reach property that has been conveyed illegally by a trustee; that is, the property conveyed to the Portland Farmers’ Elevator Company. There can be no question, under the law, but what this property can be reached whether the trustee acted in fraud or good faith. That question was settled in Gibney v. Allen, 156 Mich. 301 (120 N. W. 811). So in this case relief does not depend upon the question of good faith of Webber in selling this property. It is purely a question of whether the matter has become so mixed and the property placed in that condition that without the aid of the court the trust cannot be carried out, and it appears that such is the situation. The property under the trust was conveyed by Webber, evidently in good faith, but perhaps under a mistaken view of the law, and it may be true, at least I shall assume it is true, and that Judge Wiest was correct in his holding that it was the same as no sale, and therefore without the interposition of a court of equity the complainant and his cobeneficiaries are left without remedy, and therefore, under such circumstances, I have no hesitancy in holding that it is not necessary to charge fraud to give the court jurisdiction, and therefore I feel compelled to overrule this ground of the demurrer.
“VII. I do not think it is necessary to spend any time upon the last ground of the demurrer, that is, that the probate court or the circuit court for the county of Ingham having once assumed jurisdiction and disallowed the claim, it becomes res adjudicaba, and this court has no jurisdiction in the premises.
“A judgment,,to be a bar to a subsequent action, must have been rendered upon the merits of the subject-matter, and between the same parties no claim of this kind can be made or is made, as I understand it, and, under the authority of Michigan and elsewhere, the fact that the circuit court for Ingham county having held that until the deficiency was determined there could be no recovery, and upon that ground nonsuited the claimant, it would be absurd to hold that that ruling was. a bar to any proceedings taken thereafter for the purpose of determining that very question. I think the case of Laird v. Laird’s Estate, 127 Mich. 24 (86 N. W. 436), settles the question beyond any controversy, and it is unnecessary to discuss it further, and that ground of the demurrer is overruled.”

We are unable to agree with the conclusion of the learned circuit judge that because the circuit court of Ionia county, in chancery, acquired jurisdiction to enter into an accounting and determine the deficiency of an insolvent estate, and in so determining pass upon the quality and value of its real and personal assets, including land within that county and the Charles Lockwood note, it thereby acquired jurisdiction to set aside deeds given by Lockwood to lands in Ingham county. He is not claimed to have owned land in “different counties.” While the administrator, or, in case of his refusal, creditors, might file a bill in the county where the land lies to set aside those conveyances, if the assets of the estate otherwise proved inadequate to pay its debts, the subject-matter is purely local, and only the county in which the land is located has jurisdiction for that purpose. Chapin v. Circuit Judge, 104 Mich. 232 (62 N. W. 351).

The decree will therefore be modified accordingly, sustaining the demurrer of the heirs of Charles Lockwood to whom he conveyed his land in Ingham county and their grantees, with costs to them, and otherwise affirmed, with costs to complainant against the remaining defendants.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
      In re McINTYRE’S ESTATE. DOYLE v. CLANCY.
    1. Wills — Evidence—Undue Influence.
    In a proceeding for the probate of a will, opposed by-nephews and nieces of the testatrix, who devised the greater part of her estate to charitable institutions of the Catholic church, evidence reviewed, and held, insufficient to present a question of fact on the issue of undue influence by her religious advisers.
    2. Same — Sufficiency of Proof.
    Undue influence, to vitiate a will, should be more than influence, and must coerce the testator against her will, causing her action to be under compulsion or restraint such as to affect or destroy her free agency.
    3. Same — Proof—Circumstantial Evidence.
    It need not be proved by direct evidence, but can be established by indirect proofs or circumstantial evidence from which it may be inferred that such influence was exerted.
    Error to Kent; McDonald, J.
    Submitted April 7, 1916.
    (Docket No. 37.)
    Decided September 27, 1916.
    Emanuel J. Doyle presented for probate the last will of Ann McIntyre, deceased. From an order admitting the same to probate, Charles Clancy and others appealed to the circuit court. Judgment for proponent on a directed verdict sustaining said will in part and for contestants on question submitted to the jury. Proponent brings error.
    Affirmed as to directed verdict and reversed as to balance.

      Emanuel J. Doyle (Jacob Kleinhans, M. L. Dunham, Willard F. Keeney, and Thomas A. E. WeadocJc, of counsel), for appellant.

      Lombard, Hext & Washburn and Charles E. Ward, for appellees.
   Moore, J.

October 9, 1908, Ann McIntyre made a will reading,as follows, omitting the formal parts:

“First. I direct that all my just debts and my funeral expenses be paid.
“Second. I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal of which I shall die seised or possessed, or to which I shall be entitled at my decease, and wherever the same may be situated unto Emanuel J. Doyle of the city of Grand Rapids, Michigan, in trust, however, for the following purposes: * * *
“(c) And to convert all of my property, both personal and real into money as. soon as the same can be done without loss to my said estate or any part thereof. * * *
“(e) And after my said estate has all been converted into money by my said trustee as above provided, that my said trustee shall divide all of the proceeds thereof, that is to say: All of the moneys derived from the sale or sales of my said estate equally share and share alike between St. John’s Orphan Asylum of the city of Grand Rapids, Michigan, and the Little Sisters of the Poor of Grand Rapids, Michigan, that is, that each of the last-named institutions shall have one-half of the proceeds of my whole estate.
“ (/) The above division and disposition of the proceeds of my estate is made out of a desire I have that all of my property should be given to charity after my death, I having no children or grandchildren living.
“Third. In compliance with and in obedience to a clause in the last will and testament of my late husband, John McIntyre, authorizing his executor and trustee, Emanuel J. Doyle, named in his said last will and testament, who is also my said executor and trustee, to dispose of his estate as I, his wife, should direct. I direct and desire under the power given me in said clause in said last, will and testament of my said husband that the estate of my sáid husband, John McIntyre, be disposed of in exactly the same way as near as the same can be done as my own estate shall be disposed of, under the foregoing provisions of this my last will and testament; that is to say: That after my death that all the estate of my said husband, John McIntyre, both personal and real, be converted into money by my said trustee as soon as the same can be done without sacrificing the whole or any part of said estate, or without any necessary loss thereto, or to any part thereof, and that during the time my said trustee is so converting the said estate of my said husband into money that he shall have power to make all necessary repairs thereon, pay taxes thereon, rent and collect rent for the whole or any part thereof, and sell and dispose of the whole or any part thereof when in his judgment he can obtain a reasonable price or value therefor, and that when the whole of the estate of my said husband is converted into money as aforesaid by my said executor that he divide all the proceeds or moneys received by him for said estate equally share and share alike bétween St. John’s Orphan Asylum of the city of Grand Rapids, Michigan, and the Little Sisters of the Poor of Grand Rapids, Michigan, that is to say: That each of said last-named institutions shall receive one-half of all the proceeds derived from the estate of my said husband John McIntyre. * * *
“(i) And that my said executor and trustee shall be allowed out of said estate the sum of twenty-five hundred dollars per year in full payment and settlement for all his services of every nature and kind in reference to the management, sale and distribution both of my estate, and that of my said husband as above provided.
“Fourth. I hereby nominate and appoint Emanuel J. Doyle, of .the city of Grand Rapids, Michigan, to be the executor and trustee of this my last will and testament.”

Then follows the closing part of the will, which is in due form.

On October 12, 1909, Mrs. McIntyre made a codicil to her will in part as follows:

“Know all men by these presents: That whereas I the undersigned, Ann McIntyre, of the city of Grand Rapids, Michigan, did on the ninth day of October, A. D. 1908, make, execute, publish and declare my last will and testament in writing, bearing date the day and year aforesaid.
“And whereas, I now desire to make certain changes therein and modifications thereof and additions thereto:
“Now, therefore, I, the said Ann McIntyre, being of sound mind and memory, do make, publish and declare this my codicil to my said last will and testament in manner following, that is to say:
“After the payment of my just debts and funeral expenses as provided in said will, I give and bequeath to my niece Jennie McIntyre, of Ann Arbor, Michigan, the sum of five thousand dollars.
“And to my nephew Don McIntyre, of Ann Arbor, Michigan, the sum of five thousand dollars. And to my nephew James Clancy, of Escanaba, Michigan, the sum of ten thousand dollars.
“And whereas, by my said last will the residue of my estate after being converted into money is directed by the trustee therein named to be divided between the St. John’s Orphan Asylum of Grand Rapids, Michigan, and the Little Sisters of the Poor of Grand Rapids, Michigan; and whereas, the said St. John’s Orphan' Asylum is not an incorporated institution, but is under the management and control of religious associations and authorities, I direct that the trustee named in said will so dispose of, expend, lay out, or invest the moiety of such residue in said will directed to be for the benefit of the said St. John’s Orphan Asylum in such manner as in his judgment shall be most beneficial for the inmates of the said St. John’s Orphan Asylum, and to that end he is authorized and empowered to place the same in the hands and control of such persons or corporation as shall be in charge of said St. John’s Orphan Asylum to be used only for the purposes aforesaid.
“And I further declare that by the term Little Sisters of the Poor mentioned in my said will is meant and intended the Home for the Aged, Little Sisters of the Poor, a corporation located at Grand Rapids, Michigan, and this direction and explanation shall apply to the disposition of the estate of my deceased husband, John McIntyre as well as to the disposition of my own estate.
“And I do hereby ratify and confirm all and singular the provisions of my said last will and testament except as changed and modified by this my codicil thereto.”

This codicil was executed in due form.

Mrs. McIntyre died December 26, 1910. Her will was offered for probate. Some of her nephews and nieces contested its probate on the ground of mental incompetency and undue influence. The case found its way to the circuit court, where it was tried before a jury. Upon the conclusion of the testimony the counsel for the proponent requested the court to direct a verdict in his favor on two grounds:

(1) That there was no evidence to submit to the jury in support of the contestant’s claim.

(2) If there was such evidence, it only amounted to a scintilla, and it was the duty of the court to direct such verdict.

This request was denied. The court said that he would instruct the jury, as a matter of law, that the codicil, so far as it related to the legacies to James Clancy, Miss McIntyre, and her brother, and the provision in regard to the appointment of Judge Doyle as executor and trustee, and his compensation, were valid, and he would also instruct the jury that she had sufficient mental capacity to make this will and codicil, and leave to them'only the question of undue influence, and the jury were instructed accordingly; The jury found that the will and codicil were not the last will and testament of Mrs. McIntyre, except that the provisions pertaining to the appointment and compensation of Judge Doyle and the legacies to Don McIntyre, Jennie McIntyre, and James Clancy were valid. The proponent moved for- a new trial, which motion wias overruled. It was renewed, and again overruled.

The contestants did not take any exceptions to the instructions of the court to the jury, nor did they take out any writ of error. The proponent brought the case here by writ of error.

It was conceded in this court by counsel in response to a question put to them by the court that the verdict of the jury must be affirmed as to the legacies to James Clancy, Jennie McIntyre, and Don McIntyre, and in regard to the appointment of Mr. Doyle as executor and trustee and his compensation.

The printed record contains more than 2,800 pages. The briefs are very voluminous. The case was argued orally at length. We may as well say at the outset that an examination of the record convinces us that the trial judge was right in saying Mrs. McIntyre was competent to make the will and codicil.

Before entering upon a discussion of the assignments of error, of which there are nearly 300, it will be helpful to take a general view of the situation as disclosed by the record.

Mrs. McIntyre’s maiden name was Clancy, and the contestants, numbering 19, are nephews and nieces, the children of her deceased brothers, James, Dennis, and Edmund Clancy, who died before the will and codicil were executed. All of the widows of these brothers are dead. John Clancy, a brother of Mrs. McIntyre, was a bachelor who made his home with the McIntyres for years. He died in 1883, leaving a large estate. By his will he gave to Mrs. McIntyre .and her husband jointly the homestead with all its contents on condition that neither of them should make any charge or claim against him or his estate for any services rendered or to be rendered. He also gave to the Roman Catholic bishop of the diocese of Grand Rapids the sum of $60,000 to purchase ground and to erect thereon an orphan asylum, the title to be in the bishop and his successors in office forever. After making other bequests not material here, he gave the residue of his property to his three brothers, James, Edmund, and Dennis, and to his sister, Mrs. McIntyre, to be divided equally between them. Under the residuary clause of the will Mrs. McIntyre and her three brothers each received $50,000. Mr. and Mrs. McIntyre had only one child, a son, John D. McIntyre, who died at the age of 52. In May, 1906, Mrs. McIntyre broke her hip, and a few months later she broke it again, which left her a cripple for life. After she recovered from the second fracture she had to be helped up and down stairs, but could get around the house with crutches. She went down town in her wheel chair and sat on the veranda. In December, 1906, John McIntyre, the husband of Ann McIntyre, sent for Emanuel J. Doyle to come to his house to see him about some business. Judge Doyle is a lawyer, and has been police judge of the city. Later Judge Doyle, at the request of Mr. McIntyre, drafted a will for him which was executed January 2, 1907. By this will he gave his wife the use of all of his property for life, subject to a provision which devised all of his estate to Judge Doyle in trust to manage and care for the same and pay the necessary expenses, and from the income to pay to his son, John D. McIntyre, $15 a week during his natural life; the balance of his estate to be disposed of by his executor and trustee as his wife might will and direct. He appointed Judge Doyle executor and trustee with large powers. Mr.-Doyle had from that time charge of Mr. McIntyre’s entire business and gave checks for his expenses. John McIntyre died February 24, 1907.

After this will was made Judge Doyle went to the McIntyre house three or four times a week, staying from a few minutes to half an hour during John McIntyre’s lifetime. Commencing in the summer after Mr. McIntyre’s death Judge Doyle frequently took his dinner at the McIntyre house on the invitation of John D., the son, or Mrs. McIntyre, and made much more frequent visits. After John D.’s death, which occurred September 17, 1908, Mrs. McIntyre insisted that he should come there regularly to his noonday meals, and as a rule he did so, and sometimes when requested he stayed there overnight.

Mrs. McIntyre’s general health was good up to within a few days of her death, which occurred December 26, 1910, when she was upwards of 80 years of age. Mrs. McIntyre was a Roman Catholic, and had a pew in the cathedral for 25 years or more. Before she was hurt she went to church, how frequently is a matter of dispute, but she was undoubtedly an earnest Catholic. She was very friendly with her niece Jennie McIntyre. Except her nephew James Clancy and her niece Mrs. Griffin, Mrs. McIntyre was a comparative stranger to all her nephews and nieces on the Clancy side. James Clancy called on her occasionally as he was passing through Grand Rapids. He is not a contestant of the will. Mrs. Griffin married in January, 1892. -She visited Mrs. McIntyre before her marriage, and Mr. and Mrs. McIntyre attended her wedding in Ann Arbor. After she was married she and her husband lived in a brick house belonging to the McIntyres adjoining their homestead. After a time the friendly relations between Mrs. McIntyre and Mrs. Griffin ended for causes which are claimed to be due to Mr. Griffin.

St. John’s Orphan Asylum is a diocesan institution under the control of the bishop, which was founded by John Clancy’s bequest of $60,000. When this case was tried, 139 children were housed in this building, and it was crowded. If the interior was finished, it would accommodate from 500 to 600 children. Destitute and. orphan children between the ages of 4 and 14 years are taken into this home and are fed, clothed, and educated. The object of the home is to make good citizens of the children.

The record abounds with testimony that Mrs. McIntyre was proud of John Clancy for founding the home for orphans and of the good his money was doing long years after he was dead, and that she thought there was no greater charity than helping little children. The record shows that in 1910, when the last addition to the orphans’ home was being built, there was a lack of funds to complete it, and Mrs. McIntyre told Sister Paschal that it was too bad to have a building like that stand for the want of money when it was necessary for the children, and she said: “I will see what I can do, and perhaps I can help out.” She sent Judge Doyle to the home to look the building over and to ask the mother superior if .they were in need of funds. Judge Doyle informed her of the condition of affairs, and after a day or two she gave them a check for $2,500. She was in the habit of sending a Christmas box to the home containing candy, oranges, and cake.

The Little Sisters of the Poor is another institution in the city of Grand Rapids managed by the Catholics. At the time of the trial it had 150 old people. Mrs. McIntyre was also interested in this institution, and often spoke of the children and the old people. Mr. McIntyre always sent them a present every Christmas, and she kept it up after his death. Her husband favored the Little Sisters of the Poor, and she the orphan asylum. Mrs. McIntyre said it was real charity to take care of little children and old people.

The record shows that in July, 1908, Mrs. McIntyre began to talk to Judge Doyle about making her will, and he made a rough draft of one which was completed August 7, 1908, which draft was submitted to former Circuit Judge Grove. This will disposed of her property much the same as the will in controversy, including the disposition of the estate left by her husband. This will made provision for the son, John D. McIntyre. Before it was executed he died. After his death, and during the two weeks before October 9, '1908, she talked to Judge Doyle about her will several times. He drafted another one in accordance with her instructions leaving out the provisions for the son. It was executed in Mrs. McIntyre’s bedroom about 11 a. m. The subscribing witnesses were Dr. Barth, who had been her family physician for 27 years, and Alberta Van Wyck, who was a stenographer in Judge Doyle’s office. Before Mrs. McIntyre signed it, Judge Doyle read the attestation clause, and then Mrs. McIntyre signed first, and requested Dr. Barth and Miss Van Wyck to sign as witnesses which they did. The persons present besides Mrs. McIntyre were Judge Doyle and the two witnesses. Mrs. McIntyre was sitting up at a little table in her usual chair. She selected these witnesses herself.

There is testimony that before her husband died they had agreed to give their property to the orphans and the Little Sisters of the Poor, because they thought there was no better charity than giving to these two institutions. There is testimony that Mrs. McIntyre said that her brother John Clancy must have had a great head on him, and she had been appreciating it more and more how he devised this plan of St. John’s Orphan Asylum for devoting his money to charity. She said, “He must have had a great mind”; also, “he originated the St. John’s Orphan Asylum, founded it, and left $60,000 to get it started.” She said she wanted to supplement his efforts, that these little children were not able to work, and that they had no parents, or wayward and worthless parents, and somebody must support them, and she said she thought it was real charity to clothe, feed, and lodge these little children; and she wanted her money to go to charity. She also said that these old men and women at the Little Sisters of the Poor were not able to work; that Mr. McIntyre always favored the Little Sisters of the Poor. They were his choice, and she knew he would want her to do as much for them as for St. John’s Orphan Asylum, and she wanted the property divided equally between these two institutions.

There are many interesting questions presented by the assignments of error. There is, however, one pivotal question, the answer to which will decide whether it is necessary to discuss and decide the other questions. We have already determined that Mrs. McIntyre was competent to make the will and codicil. The other question is whether there was sufficient evidence of undue influence to take the case to the jury. The testimony of one of the domestics who was in the employ of the McIntyres for several years is said to sustain the charge of undue influence. In one side of the room-occupied by Mrs. McIntyre was a door before which in her room was a cheval dressing case which concealed the door from an occupant of the room. The domestic, Mrs. Durand, opened this door slightly. She says she did this so that she could more readily hear the bell when Mrs. McIntyre rang for her. Her testimony is that when a priest or the sisters visited Mrs. McIntyre she repaired to the door and listened; her presence being unknown to Mrs. McIntyre and her visitors. Her testimony is:

“Q. At the time of Mr. John McIntyre’s death were you about the house at the time of the funeral?
“A. Yes, sir.
“Q. Up to that time had you seen any priests or sisters about the house?
“A. No, sir; there wasn’t none. * * *
“Q. Now, when young John died, did they have any services at the house?
“A. Why, yes; when he died there was priests there, and after he was dead the Little Sisters and some of the children from St. John’s Orphan Home come up and prayed around the casket.
“Q. When did you first notice any of the priests or sisters coming about the house?
“A. Well, right after Mr. McIntyre died.
“Q. About how long after he died did they commence to come there?
“A. It might have been a month or so, little more.
“Q. How frequently did they come during the first six months after he. died?
“A. Oh, not so — not so very often.
“Q. Give us your best recollection.
“A. Couple times a week.
“Q. Did you know Father Reid?
“A. Why, yes; I know him well.
“Q. Did you know Father Schmitt?
“A. Yes.
“Q. Did you see them about there?
“A. Yes.
“Q. And were they the ones that came?
“A. Yes, sir.
“Q. You say they commenced coming somewhere along a month after Mr. McIntyre’s death?
“A. Yes, sir. * * *
“Q. And did you see any of the sisters come?
“A. Yes, sir.
“Q. I want to get at the earliest time that you remember their coming, the sisters. How soon after . Mr. McIntyre’s death did they come?
“A. They didn’t come so often; I don’t just remember how many times they would come, or how soon.
“Q. You don’t remember how soon they came?
“A. No; I don’t. * * *
“Q. Now, I want to call your attention this time to what you observed in relation to the priests coming there. I refer now to the time up to Mr. John McIntyre’s death. Had you seen any there before that?
“A. John McIntyre?
“Q. Yes; the old gentleman before he died.
“A. No; I never seen any there.
“Q. Were there any there at the house that you saw during the period, the time of his death, while the body was there in the house, before the body was taken away from the house?
“A. Why, I think there were to see Mrs. McIntyre.
“Q. What is that?
“A. To see Mrs. McIntyre — Father Reid.
“Q. You think Father Reid did come?
“A. Yes.
“Q. To see Mrs. McIntyre?
“A. Yes.
“Q. After Mr. McIntyre’s death what did you observe with reference to the priests coming there to the house? Just tell whether you saw them come, and how often.
“A. Why, yes; they used to come.
“Q. Who come?
“A, Father Reid and Father Schmitt; the sisters.
“Q. Did you notice anything with reference to whether they came oftener or not after Mr. McIntyre’s death?
“A. Why they didn’t come so very often about three . or four times a week. * * *
“Q. Do you know how long that continued in that way?
“A. Why, until John’s death.
“Q. Until John D.’s death?
“A. Yes; they used to come quite often; more than that after that.
“Q. After young John died how often did they come?
“A. Why, two or three times a day.
“Q. Three times a day?
“A. Yes. * * *
' “Q. Following Mr. McIntyre’s death, I wish you would tell this jury what you observed and heard in reference to the priests and their visits to Mrs. McIntyre’s; I mean just following, in the earlier part, what you know of their coming there, and what they said to her with reference to her property. I refer now to Father Reid and Father Schmitt?
“A. Why, they used to tell her — Father Schmitt would tell her that she should leave her property to the church, and that she ought to do for it, and that Mr. McIntyre was in purgatory, and that she had to give them money to get him out of purgatory, to pray for him on Sunday at the cathedral.
“Q. Have you heard them tell her that?
“A. Yes, sir.
“Q. In the beginning they first commenced coming there and telling her that; what was her attitude towards them?
“A. She used to call Father Schmitt a ‘little shrimp’; she says she guessed she knew what she wanted to do with her property; he didn’t have to tell her.
“Q. And that was when they first commenced coming there?
“A. Yes. * * *
“Q. Now did they keep on coming after?
“A. Yes; more all the time.
“Q. Whether or not the sisters continued to come more frequently?
“A. Yes; they were there, too,
“Q. And what have you seen and heard in connection with their talk with Mrs. McIntyre in her room?
“A. Well, I never heard what they said; I couldn’t understand.
“Q. What had you seen them do ?
“A. They would kneel down in front of her feet and kiss her hand and pray, but I could not understand what they said.
“Q. How frequently have you seen them do that?
“A. Oh, sometimes every day, or every other day.
“Q. Were they doing anything of the kind before Mr. McIntyre’s death?
“A. No, sir.
“Q. Do you know anything about their bringing her any books, Catholic, or, that is, related to the Catholic religion, for her belief?
“A. Yes; they brought her books to read.
“Q. Who brought them?
“A. Well, Father Schmitt and Father Reid, and I don’t know whether the sisters did. I never seen them bringing any. * * *
“Q. Now, how frequently did you hear Father Schmitt tell her that her husband was in purgatory and they need this property to get him out?
“A. Oh, I don’t remember how many times, but—
“Q. Well, did you more than once?
“A. Yes, sir.
“Q. Whether that continued on through the time that you were there?
“A. Well, they used to talk about her property every time they would come.
“Q. State whether or not that was the topic of conversation largely while they would be there?
“A. Yes, sir; they used to talk about it all the time.
“Q. In the beginning following the death of her husband state whether or not at that time she fell in with the idea, or gave them anything as far as you knew.
“A. She used to give them money.
“Q. I mean in the beginning, right after Mr. McIntyre died?
“A. No; she didn’t use to give them any money then that I know of; I don’t remember of it.
“Q. State whether or not that was the time when she used to call Father Schmitt a ‘little shrimp.’
“A. Yes, sir.
“Q. What did she say — I want to get that clearly out — as to just what she said that indicated her reason for calling him that?
“A. Well, he used to be so persistent that he wanted to make her give the property to the church, and she guessed she would know what she wanted to do with the property, and she didn’t like him.
“Q. About how long after her husband’s death occurred did she commence giving them money, if she did, as you have suggested?
“Mr. Kleirihans: Who is ‘them’?
“Mr. Lombard: I mean the priests.
“Mr. Kleinhans: Which one?
“Mr. Lombard: Well, either one.
“A. Well, Father Reid used to give the communion.
“Q. At the house?
“A. Yes, sir. And I used to get her bag, and she used to give him $20 gold pieces.
“Q. How frequently did that happen?
“A. Well, I don’t just remember, but quite often.
“Q. You knew Father Reid also?
“A. Yes, sir.
“Q. Did you hear any conversation between him and her with reference to the property there where she lived?
“A. Yes, sir; he wanted the corner for a cathedral.
“Q. What did you hear her say to him about that? Just tell what he said to her what he wanted.
"A. What Father Reid wanted?
“Q. Yes; what did you hear Father Reid say to Mrs. McIntyre?
“A. That she ought to do for the church and to give a corner for a cathedral, for Father Reid’s cathedral.
“Q. That is the corner where she lived at that time?
“A. Yes; the corner where she lived.
“Q. Just explain to the jury how you came to hear their conversations?
“A. Well, they used to come up there so much, and I heard — thought that they were talking to her, you know, and I used to go up the back way and listen to that door, up the back stairway. * * *
“Q. How many times did you hear them, either Father Reid or Father Schmitt, speak of her husband being in purgatory?
“A. Well, I don’t remember how many times, but they used to tell her quite often that they hadn’t said a prayer for him on this Sunday because she would have to give them more money to say another prayer that next Sunday for him in church, you know, to get him further out of purgatory.
“Q. State whether or not that condition continued up to the time you left there; whether they still were doing that when you left there.
“A. They didn’t — I didn’t hear them say anything about it after her will was made.
“Q. Not after the will was made?
“A. No, sir.
“Q. What did you observe about the frequency of their coming there after the will was made; did they come as often as they did before?
“A. No, sir; they did not. * * *
“Q. After these books had been brought there and the priests and the sisters had been going there for some months, did you ever hear her say anything more, or call Father Schmitt a ‘shrimp,’ or anything further? .
“A. No, sir; she never used to say anything about that.
“Q. She changed her attitude in the matter?
“A. Yes, sir. * * *
“Q. She received the injury about four weeks before you were married?
“A. Yes, sir.
“Q. And state whether or not she was then confined to the bed at the time of your marriage?
“A. Yes, sir. Yes; she was.
“Q. And from that time on was she ever able to help herself or get about?
“A. No, sir; she always had to be helped; she couldn’t get in or out of bed.
“Q. And from that time on did you ever know of her going to church?
“A. No, sir; she never went to church.
“Q. Did you know of the priests or sisters visiting her at the time she was injured; did you ever see them around there?
“A. Why, I don’t remember, but I think they came once or twice.
“Q. You think they came once or twice?
“A. Yes.”

On the cross-examination she testified in part:

“Q. Now, while Mrs. McIntyre was in bed with this broken hip did either of her pastors or any pastors of the Catholic Church come there to see her?
“A. Yes; I think Father Reid was there.
“Q. Father Reid?
“A. Yes. * * *
“Q. What was Father Reid asking her to give him at that time?
“A. Didn’t ask for anything.
“Q. Was she giving him $20 gold pieces or $10, or what?
“A. Well, I don’t remember of her giving anything.
“Q. Now, you have told us that you saw Father Reid there in 1906 at the time she had this broken hip. Did Father Reid or Father Schmitt call there occasionally from that time on until the death of John McIntyre her husband?
“A. Why, I don’t remember of their only being there once.
“Q. Who?
“A. Father Reid.
“Q. That was when she was upstairs with a broken hip wasn’t it?
“A. Yes, sir; that is all I seen him.
“Q. Didn’t you ever see Father Schmitt there after' that time and before John McIntyre died?
“A. Before?
“Q. Yes.
“A. I don’t remember whether he was or not. * * *
“Q. After John McIntyre’s death how iong after his death was it before you used to see these priests coming there all the time?
“A. Oh, they came right away. * * *
“Q. Do you tell the jury that right after John McIntyre was buried that you used to see Father Schmitt or Father Reid going there nearly every day, did you?
“A. Well, I don’t know. * * *
“Q. From the time John McIntyre died in February, 1907, the priests and sisters used to come pretty frequently from that time up to the time John D. died, didn’t they?
“A. Yes.
“Q. And were there more than two priests that used to go there, Father Schmitt and Father Reid?
“A. That is all I saw.
“Q. Who ’ came there oftener, Reid or Father Schmitt?
“A. Father Reid.
“Q. Who would stay longer, Father Schmitt or Father Reid?
“A. Well, I don’t- know who would stay the longest. * * *
“Q. When you went back to work you began listening right away, didn’t you?
“A. Well, I don’t know whether I did right away.
“Q. Where were Father Reid and Mrs. McIntyre talking the first time you began listening?
“A. Why, in her room. * * *
“Q. What time of day was it that you went up there to listen?
“A. Well, both times', all day, whenever they would be there.
“Q. All day; I see.
“A. Not all day, but I mean whenever they would be there, the morning or the afternoon.
“Q. Up to the time that you began to listen up this back stairway there had you ever overheard any conversation between Father Reid and Mrs. McIntyre?
“A. Before I commenced to listen?
“Q. Yes.
“A. No; I don’t remember. * . * *
“Q. What did Mrs. McIntyre say that day?
“A. She never said very much.
“Q. What did Father Reid say upon that occasion?
“A. Well, he kept telling her that he wanted the house the corner for a cathedral, and she ought to give it to the church to do for her. That is before John D. died.
“Q. Is that just what he said? Have you told us just what Father Reid said?
“A. Well, I couldn’t word it word for word the way he said it, but that was what I understood.
“Q. And what did she say in reply?
“A. She never used to say very much, about that at first.
“Q. You say Father Reid wanted her to give that place, that corner for a cathedral, for his church, or for his cathedral?
“A. Yes.
“Q. For his cathedral. Just what was the language; what was it Father Reid said now; how was it he said it?
“A. Well, I don’t remember how he worded it.
“Q. You tell it as you think he said it?
“A. Well, that he wanted — * * *
“Q. Give it as near as you can.
“A. Well, I don’t know how to express myself.
“Q. Express it just as Father Reid did.
“A. Well, that he wanted the corner for a cathedral and how nice it would be if he had a cathedral on the corner, and that she ought to give him the corner for a cathedral or a church.
“Q. Cathedral or a church. What else did he say?
“A. Well, I don’t remember. * * *
“Q. Tell what Father Reid said just as near as you remember it?
“A. Why, I don’t know what he exactly said.
“Q. Well, we don’t. Tell us just as near as you remember what Father Reid said from that time on.
“A. Well, he talked about her property there.
“Q. What did he say? Just tell us what he said.
“Mr. Lombard: She is trying to, the best she can.
“A. Well, I don’t know just what he did say. * * *
“Q. Have you now told the jury all that you can remember that you heard said there between Father Reid and Mrs. McIntyre on that first occasion of your eavesdropping?
“A. Why, I don’t know whether I did or not.
“Q. Can you think of anything more that you heard that time?
“A. I can’t just now. * * *
“Q. Do you now say that you heard Father Schmitt use that language to Mrs. McIntyre before John D. McIntyre died?
“A. Yes.
“Q. Then, as I understand you, Mrs. Durand, Father Reid wanted Mrs. McIntyre to give the homestead there for cathedral purposes, and Father Schmitt wanted her to give money for masses; was that what they were asking for?
“A. Yes; and to give the property to the church, and—
“Q. Who was it said she ought to give the property to the church?
“A. Oh, they both talked about it. Father Schmitt said that she should give money to get Mr. McIntyre through purgatory, and to pray for him on Sunday in church, and to get him out that much farther, and that she ought to do for the church now while she was alive, and that she couldn’t do it afterwards, and that she had a lot of money and she ought to do it. That is Father Schmitt. * * *
“Q. What you just told us; was that what Father Schmitt said the first time?
“A. I don’t know whether it was the first time or the last time.
“Q. You can’t tell what you did hear him say the first time, can you, and be sure about it? What did Mrs. McIntyre say when Father Schmitt said that?
“A. I never could just exactly hear what she would say; she would talk so low. * * *
“Q. And who did Father Reid say she ought to give the money to for masses? Did Father say she ought to give money for masses or to get him out of purgatory, which was it Father Reid said, what language was it he used?
“A. I don’t know who got the money.
“Q. What did he say? Did he say, ‘You ought to give money for masses,’ or did he say, ‘You ought to give it to get your husband out of purgatory’?
“A. He said that, too.
“Q. Which was it he said? Just tell us what Father Reid said about that.
“A. To get him out of purgatory, and she ought to do for the church, and that he wanted the corner for a cathedral. * * *
“Q. I know, but what was it he said besides what you have said?
“A. Why, I don’t know.
“Q. Now, you can’t think of anything else Father Reid said, can you? Well, if you can’t, what did you hear Father Schmitt say? You have told us before recess that Father Schmitt said she ought to give money for masses, or to give money while she was alive; she couldn’t do it after she was dead. Now, what else, if anything, did Father Schmitt say?
“A. And that she had means, and that she ought to do for the church.
“Q. What else did Father Schmitt say?
“A. That she ought to leave it to the church and do for the church and for the sisters to help them.
“Q. What else.did Father Schmitt say?
“A. Why, I don’t remember exactly now.
“Q. You can’t think of another thing. Now, what did you use to hear the sisters say when you were listening at the door? I don’t know, but you have told us you could not hear what they said.
“A. No, sir.”

Both of the priests referred to by this witness were sworn and denied in the most emphatic language that they made the statements to which Mrs. Durand testified, and that they had no knowledge of the making of the will. Father Schmitt says he made but two requests for funds of Mrs. McIntyre, and one was that she contribute toward the purchase of a chime of bells, and that she did so, and that he made a request for a contribution to procure a stained glass window which she said she would consider, and that she never complied with his request.

Father Reid testified in detail in relation to his visits, which began when Mr. McIntyre was alive, and at a time when Father Reid was building a little church just outside of the city limits. Soon after this visit Mr. McIntyre sent him a check for $50. He also testified that during the three or four years he visited the McIntyres gold coins were given to him by Mrs. McIntyre amounting approximately to $220. Some of the sisters were sworn as witnesses. They as well as the priests said their visits were made only when they were sent for or when they were invited to come, and that they never sought to influence Mrs. McIntyre in the disposition of her property.

We have quoted all of the testimony of Mrs. Durand bearing upon the question of undue influence.’ If we eliminate a consideration of its doubtful source and give to it the fullest probative force, does it constitute undue influence within the meaning of the law? It is to be observed that Mrs. Durand in her testimony did not give the replies made by Mrs. McIntyre to the various suggestions made to her by the priests. She says she could not hear them.'

It is also to be noted that, if Father Reid ever requested that the corner lot be given him for a cathedral, his request was not heeded, and that, if Father Schmitt ever solicited property to pay for masses and the giving of prayers to get souls out of purgatory, these suggestions were not acted upon by provisions in the will for any such purpose.

It is a significant thing that in all the voluminous testimony of Mrs. Durand she does not suggest that the St. John’s Orphan Asylum or the Little Sisters of the Poor were ever mentioned in her hearing by either of the priests or Mrs. McIntyre.

There is no testimony indicating that Mrs. McIntyre, at any time after the death of Mr. McIntyre, intended to make any other provision for her living relatives than those’ she did make.

The question of undue influence is not a new one in this court. In Maynard v. Vinton, 59 Mich. 139 (26 N. W. 401, 60 Am. Rep. 276), Mr. Justice Champlin, speaking for the court, said:

“To constitute undue influence, some act or acts must have been done to cause the testatrix to dispose of her property contrary to her desire. If it was given according to her free and intelligent desire at the time of making and executing the will, although this desire was prompted by her mother or Miles [who were beneficiaries under the will], it would be a valid disposition of her property. The influence, to vitiate the will, must have been such as to amount to force and coercion, destroying her free agency, and there must be proof that the will was obtained by this coercion. * * * Neither can it be set aside on the ground of undue influence, unless such influence amounted to a degree of constraint, such as the testatrix was too weak to resist, and such as deprived her of her free agency, and prevented her from doing as she pleased with her property. 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.”

The language of Chief Justice Brooke, in Re Williams’ Estate, 185 Mich. 97 (151 N. W. 731), is pertinent here:

“We do not lose sight of the fact that undue influence need not be proven by direct evidence, but can be established by indirect and circumstantial evidence. This principle has been laid down in many Michigan cases, the last two of which are In re Loree’s Estate, 158 Mich. 372 (122 N. W. 623), and In re Du Bois’ Estate, 164 Mich. 8 (128 N. W. 1092). But we are of opinion that the contestant must introduce evidence from which inferences may fairly be drawn that such influence was exercised. * * *
“ ‘To vitiate a will there must be more than influence. It must be undue influence. To be classed as “undue,” influence must place the testator in the attitude of saying, “It is not my will, but I must do it.” He must act under such coercion, compulsion, or constraint that his own free agency is destroyed. The will or the provision assailed does not truly proceed from him. He becomes the tutored instrument of a dominating mind, which dictates to him what he shall do, compels him to adopt its will instead of exercising his own, and, by overcoming his power of resistance, impels him to do what he would not have done had he been free from its control. * * * Influences to induce testamentary disposition may be specific and direct without becoming undue. It is not improper to advise, to persuade, to solicit, to importune, to entreat, and to implore. Hopes and fears and even prejudices may be moved. Appeals may be made to vanity and to pride; to the sense of justice and to the obligations of duty; to ties of friendship, of affection, and of kindred; to the sentiment of gratitude; to pity for distress and destitution. It is not enough that the testator’s convictions be brought into harmony with that of another by such means. His views may be radically changed, but so long as he is not overborne and rendered incapable of acting finally upon his own motives, so long as he remains a free agent, his choice of a course is his own choice, and the will is his will, and not that of another.’ [Ginter v. Ginter, 79 Kan. 721 (101 Pac. 634, 22 L. R. A. [N. S.] 1024)].”

See, also, Severance v. Severance, 90 Mich. 417 (52 N. W. 292); Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887); In re Shanahan’s Estate, 176 Mich. 137 (142 N. W. 573); In re Foerster’s Estate, 177 Mich. 574 (143 N. W. 616).

The case before us is that of a Catholic lady in the possession of her mental powers, without a living father or mother, brother or sister, child or grandchild. She is in the possession of a comparatively large fortune, the major portion of which came to her and her husband by reason of the will of her bachelor brother, who had made his home with her and her husband for years, and the will of her husband. The will of her brother, through which she got much of this property, set apart $60,000 to establish a worthy charity which was a going concern with many needs during the later years of the lives of Mr. and Mrs. McIntyre. There can be no possible doubt from this record that Mr. and Mrs. McIntyre were both solicitous about these two charities. It was a most natural and reasonable act for Mrs. McIntyre to make provision for them. If we give the fullest credence to the testimony of Mrs. Durand and to all fair inferences to be drawn therefrom, it is not made to appear that any influence by priest or other person caused Mrs. McIntyre to make disposition of her property otherwise than according to her judgment and desire. If we apply the principles of law so often announced by this court relative to undue influence to the instant case, it should have been said as a matter of law that there was not sufficient evidence of undue influence to take the case to the jury. As it is not likely a different case can be made, this conclusion makes it unnecessary to consider the other assignments of error.

The judgment is affirmed as to the niece and nephews and the executor. It is reversed as to the other two bequests, and a new trial is ordered, with costs to appellant.

Stone, C. J., and Ostrander, Steere, Brooke, and Person, JJ., concurred with Moore, J. Kuhn and Bird, JJ., concurred in result reached.


text:
      In re O’LEARY’S ESTATE. PALMER v. UTICA STATE HOSPITAL.
    Executors and Administrators — Account—Compensation — Estates op Decedents — Conclusiveness op Allowance op Annual ■ Account.
    Where the administrator, an attorney, expended a large part of the estate for attorney’s fees that he paid to the firm of which he was a member, and in an annual accounting the court passed on and allowed the disbursements and certain fees, the allowance of such annual account was not so conclusive upon the parties in interest that it could not be noticed and taken into consideration in determining the administrator’s claim for extraordinary compensation included in his final report, though no appeal was taken from the prior order and although the same would not be disturbed by the court, in the absence of fraud.
    Error to Wayne; Hally, J.
    Submitted April 17, 1916.
    (Docket No. 53.)
    Decided September 27, 1916.
    Rehearing denied December 22, 1916.
    George P. Palmer appealed from an order of the probate court on his second annual account as administrator with the will annexed of the estate of Michael O’Leary, deceased. The account was opposed by the Utica State Hospital, a creditor. There was judgment disallowing the-account in part,-and the administrator brings error.
    Affirmed.

      William E. Henze,- for appellant.

      Sloman & Sloman (Adolph Sloman, of counsel), for appellee.
   Moore, J.

In this case the administrator filed a second administrator’s account containing among others the following items:

“Palmer & Palmer, for services before commissioners on claims as revived, being an amount equal to tbe sum awarded to each of tbe commissioners .................................. $250.00
October 12,1912. To Geo. P. Palmer, for services as special agent of the probate court in presenting will of deceased before notary public at Hudson, Mich., said services being performed on March 4 and 5, 1909, and prior to the appointment of an administrator w. w. a....... 100.00
Palmer & Palmer, attorneys, for legal services as per their bill hereto attached................ 360.00”

The case was heard before the judge without a jury. He made findings of fact,and law, some of which we quote:

¶ “Deceased died in Detroit, in the county of Wayne. Prior thereto he had been a resident at or near Hudson, Mich., for several years. Administration of his estate was first granted to I. P. Norton. He reported $1,000 in cash in the estate and spent all of it except $49.54, and part of it was used in an attempt to locate the widow of deceased, who was reported confined ‘in an insane asylum in some city in the East.’ Afterward a will was found. Said will had been executed at Hudson, Mich., and it became necessary to take testimony of the witnesses at that place to prove the will.
“That George P. Palmer was appointed messenger by the probate court for the county of Wayne for the purpose of taking the will to Hudson, Mich., and obtaining the depositions of the subscribing witnesses to its execution.
“On the will being admitted to probate in the county of Wayne George P. Palmer was made administrator with the will annexed.
“The estate of the deceased, besides the cash which came to the first administrator, consisted of a house and lot at Bryan, Ohio, a farm at Hudson, Mich., and a loan to Barber and others of $4,280.95, evidenced by a promissory note and secured by stock of the Telephone Company of Mobile, Ala.
“On October 3, 1910, George P. Palmer filed his first account. The receipts, amounting to $2,602.05, were made of items consisting of rents, proceeds from sale of machinery, balance from first administrator, and proceeds from sale of farm at Hudson. The expenditures amounted to $1,112.12 of which $600 was for attorney fees to Palmer & Palmer. George P. Palmer is a member of this legal firm. His account showed a balance of $1,489.93, and was allowed a balance of $1,590.83; the attorney fee evidently, being reduced to $500. * * *
“It appears from the testimony that considerable of the time and services charged by said administrator were expended in opposing the widow’s petition for an allowance beyond the first year.
“That said administrator performed no extraordinary services for said estate since the filing of said first report, for which he is entitled to compensation beyond that allowed by section 9438, Compiled Laws (3 Comp. Laws 1915, § 14117). * * * f
“That said administrator is entitled to a commission of- $100.17 under the statute for services since the filing of his last report.
“That there is due said estate from said administrator at the date hereof the sum of $941.77, with interest from November 27, 1912, at the rate of 5 per cent, per annum.
“Findings of Law.
“* * * There is no absolute rule as to the compensation to be allowed an administrator for attorney fees. It is a question for the court under the circumstances of each case.
“An administrator occupies a trust relation not only as to the heirs, but also toward the widow and creditors, and must exercise fairness and good faith in the discharge of his duties, and must conserve the interests of all concerned therein.
“It is not the policy of the law to permit an administrator to conduct the affairs of an estate in a manner that would lead to its being eaten up in charges for himself and the legal services of the firm of which he is a member.
“An administrator for his services to an estate is entitled only to the compensation allowed by statute, unless his services are extraordinary, when he shall be entitled to such additional compensation as the probate court shall deem proper. * * *
“While the statute fixes a time for taking an appeal and review of an administrator’s account, and while said account will not ordinarily be disturbed after the lapse of this time, there is nothing in the law which forbids a court in passing upon a subsequent account from taking notice of items contained in the previous account and considering the sum expended for any purpose.”

Judgment was rendered in harmony with the findings of the judge. The case is brought here by writ of error.

We quote from the brief:

“The court took into consideration the first account filed by the administrator and allowed by the probate court, from which allowance no appeal had been taken. That is not permissible under the decision of this court in the absence of fraud; i. e., to say fraud in the allowance of the first account and no such fraud has been shown. See Morton v. Johnston, 124 Mich. 561 (83 N. W. 369); Nowland v. Rice’s Estate, 138 Mich. 148 (101 N. W. 214); In re Ward’s Estate, 152 Mich. 240 (116 N. W. 23); In re Corby’s Estate, 154 Mich. 355 (117 N. W. 906).”

And it is argued that, as the administrator testified to the rendition of the services and their value, there was nothing for the court to do except to allow the account. A reference to the cases cited will show they are not controlling as claimed.

The record shows a strange attitude on the part of the administrator. Instead of collecting and conserving the estate for the benefit of the widow, if there should be one, and such heirs at law as might appear, the firm of which he is a member have been acting from the beginning for some of the heirs at law, and the administrator has seemed to think it ,was part of his duty to defend against the claim of the widow or her representatives for such allowances as the statute gave her.

The record shows that this little estate, to say the least, has been very unfortunately managed. Without going into details, an examination of' it shows the court was quite right in saying the administrator had performed no extraordinary services for said estate since the filing of his first account which entitled him to more than the statutory fees.

The judgment is affirmed, with costs to appellee.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JX, concurred.