Barr v. Forshee , 277 Mich. 693 ( 1936 )

Btttzel, J.

Abram M. Lewis, an elderly resident of Caro, Michigan, whose wife died on April 19, 1925, owned a home in Caro, Michigan, a 160-acre farm nearby, also a number of lots in Caro, including a cemetery lot. On or about May 25,1925', Lewis decided to deed his property to his children, Dora C. Barr, plaintiff, Ella Forshee, Ivor M. Lewis and Edith Fae Huntley. He executed to Mrs. Huntley a deed of the south 80 acres of the farm, reserving a life interest in himself. He also gave her a few lots in .Caro, Michigan. Plaintiff alleges that the portion of the farm so deeded was worth $10,000 and the other lots $1,000. He deeded to his son, Ivor M. Lewis, subject to the life estate to himself, the north 80 acres of the farm, alleged by plaintiff to be worth $10,000. He deeded to Ella Forshee, a daughter, and Mildred Balch, her daughter, the house and lot in Caro, which plaintiff states were worth $4,800. He deeded to plaintiff lots in Caro which she states are worth only $300. Plaintiff seeks to have the deeds set aside, claiming that her sisters and brother conspired together and used undue influence on the grantor and that he was mentally incompetent when he gave the deeds.

The lower court found that the grantor was not mentally incompetent. His finding is fully supported by the record. He, however, found for plaintiff on the ground of undue influence and set aside the deeds. The testimony does not show with any definiteness the value of the farm. The judge found that the entire farm was worth $10,000 or more and at one time an offer of $16,000 had been refused. From a statement made by the trial judge, it would appear that the shares given to Mrs. Huntley and Ivor M. Lewis were very nearly alike and that given to Mrs. Forshee and daughter was somewhat less. That given to Mrs. Barr was almost negligible compared with what the others received. Mrs. Forshee sold her property prior to the bringing* of this suit and though joined as a defendant, she and her husband were very active in plaintiff’s behalf. The deeds were made about five weeks after the death of Mrs. Lewis. During that time the grantor' was living at the home of Mrs. Huntley with whom he continued to reside. At the time, the grantor was suffering from rheumatism, but was hot otherwise incapacitated and was able to get about with the use of a cane. It would not be unnatural for the grantor upon the death of his wife to contemplate a distribution of his property. Mrs. Huntley, at whose home Mrs. Lewis died, was the youngest of the children. There would be nothing unnatural or unusual in the old gentleman’s showing more affection for her. The fact that he had the disposition of his property in mind is evidenced by the testimony of Mr. and Mrs. Forshee that about April 25th the grantor was driven out to the Forshee home and that he slipped a note to Mrs. Forshee which read as follows:

“Caro, Michigan, April 25, 1925. Dear Ella: I want you to all share alike in my property. Will malee papers soon. Love, A. M. Lewis. ” ■

Doubt is cast by the appellants on the g*enuineness of the note. Attention is called to the fact that it would be unnatural for a father to sign a note to his daughter in this manner. There was some question as to whether the body of the note was in the grantor’s handwriting. The signature appeared to be genuine. Further testimony showed that Mrs. Forshee was prevented from talking to her father unless Mrs. Huntley was present. The deeds to Mrs. Forshee and Mrs. Barr were not sent to them until 1929, although executed in 1925. Subsequently, the grantor deeded the life estate reserved in the southerly 80 acres of the farm and the cemetery lot to Mrs. Huntley.

It was further shown that after the death of the grantor’s wife, in giving members of the family keepsakes, he gave Mrs. Balch a grindstone, but later asked for its return as he wanted Mrs. Huntley to have the grindstone as a keepsake; also that he gave Mrs. Balch a cot and then two or three weeks later he tried to retrieve it so as to give it to Mrs. Barr; also that, after he gave Mrs. Balch a harness, Mrs. Huntley claimed it had been given to her so that she kept the bridle and Mrs. Balch retained the remainder of the harness. It would serve no purpose to detail the other testimony. It was shown that Lewis had an active, strong mind, and, as the judge stated, aside from the rheumatism and consequent difficulty of locomotion, he was physically well. The judge, however, found that the efforts at secrecy would not be expected of a grantor who normally was of an independent nature. The secrecy might naturally be accounted for as an attempt to avoid bad feeling and quarrelling among members of the family. The testimony, however, shows that the deeds were not drafted or executed in the presence of Mrs. Huntley or at her home, but that the grantor went unaccompanied to the office of a scrivener where the deeds were first prepared and subsequently signed; that he had most unpleasant and hostile relations with plaintiff and at one time a quarrel resulted in serious accusations. He told one witness that in distributing the property he had not done the right thing by plaintiff, but that Ms property was all gone. Another witness testified that grantor had told him about the dispositions he had made.

We have examined the testimony with much care and while a more equal distribution might have been more consonant with natural justice, there was not a sufficient showing made that influence was unduly exercised so as to prevent the grantor from freely exercising his wishes, as he had a right to do.

The decree of the trial court is reversed and one will be entered dismissing the bill, with costs to the appellants.

North, C. J., and Fead, Wiest, Bushnell, Sharpe and Toy, JJ., concurred. Potter, J., did not sit.