Wild v. Wild , 266 Mich. 570 ( 1934 )

Henry Wild, a resident of the county of Isabella, died intestate in the fall of 1916, leaving as his heirs his widow, Emma Wild, and his sons Herman, Frank and William, the plaintiffs, and Harry, one of the defendants herein. The deceased owned at the time of his death 75 acres of land in the county of Isabella, three lots in the city of Clare, and considerable personal property. On September 27, 1915, he and his wife had entered into a contract for the sale of 120 acres of land in said county to Harry L. Cummings for the sum of $6,000, of which $400 had been then paid. This contract was also a part of his estate.

On the 1st day of November, 1916, his four sons, as heirs of the deceased, by quitclaim deed, "in consideration of the sum of one dollar and other considerations to them in hand paid," conveyed to their mother, Emma Wild, the widow of the deceased, the real estate above referred to, particularly describing the same, and also all their title and interest in the personal property owned by the deceased or in which he had any interest.

On October 5, 1929, Emma Wild died, leaving a last will and testament, executed on September 4, 1929, in which she devised and bequeathed to her son Herman the sum of five dollars, to her son Frank the sum of $1,000, and to her son William two lots in the city of Clare. Some bequests were made to other relatives, and the residue of her estate was devised and bequeathed to her son Harry. The will was duly admitted to probate. The defendant Francis H. Dodds was appointed executor therein, and he duly qualified and is acting as such.

On September 6, 1930, the plaintiffs filed the bill of complaint herein, in which they alleged that, at the time the quitclaim deed, above referred to, was executed, their mother, Emma Wild, entered into an agreement with her four sons that, in consideration for their conveyance of their interest in their father's estate to her, she would, by her last will and testament, devise and bequeath to them, share and share alike, all of the real property so conveyed to her, and that she would not sell or incumber the same; that such agreement was fully performed on their part by the execution of the said quitclaim deed, and that on her death they became entitled to an undivided three-fourths interest therein. In their prayer for relief they ask that the defendants do execute conveyances of the same to them, and that, in default thereof, the decree of the court do so provide.

The answer of the defendants contained a denial of the allegations in the bill relative to the agreement on the part of the mother and that plaintiffs were entitled to the relief prayed for. From a decree granting such relief the defendants have taken this appeal.

1. Jurisdiction. Counsel for the defendants, at the conclusion of plaintiffs' opening statement, and again when plaintiffs' proofs had been submitted, moved to dismiss the bill upon the ground that the probate court, having assumed jurisdiction over the estate of Emma Wild by admitting her will to probate, had exclusive jurisdiction to hear and determine the matters alleged in the bill of complaint. In this suit, in equity, the plaintiffs in no way attack the probate of the will or the right of the executor to function thereunder. It is their claim that the deceased failed and neglected to do something which she in her lifetime had contracted to do, and specific performance on the part of her executor and others now interested in the property is sought. Of this the probate court had no jurisdiction. See, Carmichael v. Carmichael, 72 Mich. 76 (1 L.R.A. 596, 16 Am. St. Rep. 528); Kundinger v. Kundinger,150 Mich. 630; Outland v. Outland, 237 Mich. 122;Burgess v. Jackson Circuit Judge, 249 Mich. 558; Smith v.Thompson, 250 Mich. 302 (73 A.L.R. 1389).

The case of Tipson v. Jeannot, 204 Mich. 403, on which the defendants principally rely, is easily distinguishable. In that case, an agreement, under which a husband agreed to pay his wife a specific sum for her support and maintenance was involved, and it was held that, as the validity of the agreement was not questioned, the rights of the wife thereunder might be determined in the probate court in the settlement of the husband's estate.

2. Was the contract established? In an opinion filed by the trial court, he reviewed the evidence at some length and found that the agreement between the mother and her sons was entered into at the time the quitclaim deed Was executed, and in consideration thereof. While specific performance is discretionary and will be granted only when a complaining party is clearly entitled thereto (Harmon v. Muirhead, 247 Mich. 614), the testimony of a number of apparently disinterested witnesses that the mother had stated to them that she had so agreed satisfies us, also that the agreement was made as claimed, notwithstanding the fact that her dealings with the defendant Harry Wild, hereafter referred to, may cast a doubt thereon. See, Burnham v. First National Bank, 264 Mich. 547.

3. Interest of Johnston. Defendants alleged in their answer that this suit had been instigated, and was being maintained and financed, by Edmund E. Johnston under an agreement with plaintiffs to convey to him certain interests in the oil, gas and minerals that might be produced from the property, and that such agreement was against public policy and void, and that by reason thereof the bill should be dismissed. The trial court found that:

"No competent evidence was introduced to substantiate any claim that Johnston either induced plaintiffs in this action or that he had any interest in the litigation whatever."

With this finding we are in accord.

4. Relief granted. On November 23, 1917, the mother, Emma Wild, entered into a land contract for the sale of the 75 acres to the defendant Harry Wild. The purchase price was stated therein to be the sum of $4,250, of which $1,000 was payable on or before March 1, 1918, and the balance as therein provided. On January 5, 1922, she executed a deed of the land to him pursuant to the terms of the contract, and on the same day he executed a mortgage thereon to her for $2,500, which was recorded with the deed. In the spring of 1930 he leased this land to an oil company, and received as a bonus therefor the sum of $3,500.

The trial court found that, as Harry was a party to the agreement above referred to, "his plan and design was to defraud his brothers and deprive them of the property that was to go to each of them at the death of the mother," and that — "no accounting should be had on the claim that a reasonable value of the land at the time he obtained the same was paid to his mother by him." In the decree he set aside the land contract and deed, and ordered Harry and his wife to convey to the plaintiffs an undivided three-fourths interest therein. He also found that Harry had no authority to execute the oil and gas lease, and that the plaintiffs were entitled to three-fourths of the bonus and annual rentals received therefor.

Counsel for the defendants insist that there is no testimony to sustain the finding of the court that Harry's action in securing the contract and deed was fraudulent. If the agreement on the part of the mother be sustained, as we find it should be, Harry had no right under the facts here presented to purchase this property which she had obligated herself to leave to her four sons at her death. It was his duty to exercise the utmost good faith towards his brothers in his dealings with his mother in relation thereto, and under the circumstances he acquired no interest therein by his purchase other than that to which he was entitled under the agreement made when the property was quitclaimed to her.

As already stated, the deceased and his wife had entered into a contract for the sale of 120 acres of land to Harry L. Cummings for the sum of $6,000. On October 20, 1919, the assignee of Cummings assigned his interest in this contract to Henry S. G. House, and on October 19, 1920, House assigned his interest therein to the defendant Harry Wild. The trial court found that there was due and unpaid on this contract on April 1, 1933, the sum of $4,445.42, and that plaintiffs were entitled to a three-fourths interest therein.

It appears, as before stated, that at the time Harry received a deed of the 75 acres from his mother he executed a mortgage to her thereon for $2,500, on which $500 has been paid; $2,000 of this loan had been used by him in his purchase of the land contract from House. Having thus received credit on the contract for this sum, the court decreed that he should pay to plaintiffs three-fourths of the $2,000 remaining unpaid on the mortgage.

Counsel for the defendants strenuously object to these last two allowances for the reason that no claim therefor was made in the bill of complaint or in the relief prayed for. The plaintiffs asked for such further relief as equity required. They were not chargeable with knowledge of all of the transactions had between Harry and his mother. Having found that the contract between the mother and her sons was made, the court by its decree sought to protect the plaintiffs from loss due to the fraudulent conduct of their brother in inducing their mother to violate the agreement, and it had jurisdiction to fully adjust the rights of the parties in the property left by the husband, the title to which passed to his wife under the quitclaim deed.

While the conclusions reached by the trial court and embodied in its decree may work an injustice to Harry, we are impressed that on the record before us they were warranted and that they but secure to plaintiffs that to which they would have been entitled had the ownership of the property of the father remained in the mother at the time of her decease.

The decree should be affirmed, with costs to appellees.

BUTZEL and EDWARD M. SHARPE, JJ., concurred with NELSON SHARPE, C.J.