Grigg v. Hanna , 283 Mich. 443 ( 1938 )

I concur in what Mr. Justice POTTER has said with respect to the liability of the defendants other than the Detroit Trust Company; but I cannot concur in his findings that plaintiff has established liability on the part of the trust company. He feels "constrained" to do so. I cannot reach the same conclusion without finding that the late Thomas T. Leete, former counsel for the executor of the estate of William H. Grigg, was guilty of "corrupt, fraudulent and criminal conduct." As stated in Mr. Justice POTTER'S opinion in a quotation from Egan v. Grece, 79 Mich. 629, 639, when such charges — "are made against the dead, who have occupied positions of trust, and whose acts have been authorized and confirmed by a court of competent jurisdiction, the proof must be so clear and convincing as to satisfy every reasonable mind."

We need not go outside the record for proof that Mr. Leete was a "very well known lawyer in the city of Detroit for a great many years and a member of one of the leading firms of the city, a lawyer of good repute, high standing and ability." The witness might have added that Mr. Leete's good reputation was also known to the bench and bar of the State, outside the community in which he lived.

The trust officer who testified stated that he had the advice of Mr. Leete; that the Hanna claim was discussed with him and that he acted upon Mr. Leete's advice in handling the affairs of the Grigg estate.

It is quite possible that, in 1932, during the darkest days of the depression, Mr. Leete realized that values had sunk to a very low depth and that the outlook was most discouraging; that what were formerly good assets had become serious liabilities; and that the release of the Grigg estate from its large obligations on the land contracts and the receipt of $15,000 in cash was most advantageous. We further note that the agreement with Hanna provided that the land contracts were to be returned to him. This may explain their disappearance.

Mr. Leete is not here to testify; he is dead and cannot defend his good name; but there is every reason for this court to be persuaded in its determination by the reputation that he built up over a lifetime. The trial judge might have been influenced in his findings by the justifiable presumption that Mr. Leete would not knowingly countenance a fraudulent act, and by the fact that he certainly was never known to have participated in one. Respect for the administration of law demands that courts take notice of the good reputation of their officers, and justice cannot be had without insisting upon the preservation of the good name of our deceased attorneys and counselors unless proof to the contrary is "so clear and convincing as to satisfy every reasonable mind." Egan v. Grece, supra.

We said in Baker v. Frischkorn, 271 Mich. 485, 490:

"Fraud may not be lightly presumed. It must be clearly proved and established by satisfactory evidence and by facts which are inconsistent with an honest purpose. Pierce v. Pierce, 55 Mich. 629; Graham v. Graham, 184 Mich. 638; Donnelly v.Lyons, 173 Mich. 515."

I agree that the record "indicates a negligence and improper handling of the estate," and that the Detroit Trust Company's "administration of the estate was faulty almost in the extreme," but, as was said in Sharrow v. McMichael, 280 Mich. 114 :

" 'Fraud cannot be lightly inferred and the burden of proof was upon plaintiffs. The circuit court was not convinced that plaintiffs established the fraud charged and our examination of the evidence leads us to the same conclusion. Kirby v. GibsonRefrigerator Co., 274 Mich. 395, 401 (103 A.L.R. 1343).' "

I, therefore, concur in Mr. Justice POTTER'S opinion, except in the finding of liability on the part of the Detroit Trust Company. The decree of the trial court should be affirmed, without modification.

BUTZEL, and SHARPE, JJ., concurred with BUSHNELL, J.

FEAD, J., took no part in this decision.