Abraham v. Doster

This is a suit for an accounting and to set aside certain conveyances made by Chauncey F. Abraham to Mary Doster.

Prior to June 5, 1934, Chauncey F. Abraham and wife resided on a farm in Allegan county, Michigan. On that date defendant returned to Plainwell, in said county, to stay with and take care of Mr. and Mrs. Abraham. At that time Mr. Abraham was 82 years of age and his wife 76. Mrs. Abraham was in poor health and somewhat affected mentally, while Mr. Abraham was partially bedridden. It was agreed that defendant was to work mornings for $4 per week and $10 per week when she was employed full time in the service of the Abrahams. Defendant received $4 per week for a short time, when Mrs. Abraham became ill and needed more attention, after which time defendant received $10 per week until Mrs. Abraham's death, in February, 1936. After Mrs. Abraham's death defendant continued to keep house for Mr. Abraham until his death, September 30, 1942, at which time Mr. Abraham was 90 years of age.

Shortly after Mrs. Abraham's death Mr. Abraham and defendant made an automobile trip "up north", and while on this trip Mr. Abraham became seriously ill. He was taken home and defendant cared for him during his illness. On July 24, 1936, Chauncey F. Abraham made a will, in which he willed to defendant the use and possession of his farm for a period of one year immediately following his death. On July 25, 1936, he executed a deed by which he transferred a house and lot in Plainwell to defendant. This deed was recorded August 11, 1936.

Prior to the time defendant went to the home of Chauncey F. Abraham his business affairs had been taken care of by a neighbor, Elmer Chamberlain, but after defendant went to the home of deceased she handled all of his business transactions in connection with the management of the farm and home.

In 1936, after deceased made his will and executed the deed, defendant obtained a safety deposit box in the Plainwell bank. She closed out deceased's checking account and thereafter deposited deceased's money in a savings account. She was given a power of attorney by deceased to sign checks and other papers. She had her mother come to live with her for a period of about two years. She also took in boarders for a short time. She raised chickens and rented out the farm.

When defendant came to live at the home of deceased he was the owner of stock in the Standard Savings Loan of the value of $3,000 and 70 shares of preferred stock of Consumers Power Company, in addition to his farm and house and lot in Plainwell.

Between December 9, 1938, and June 3, 1939, defendant withdrew from the Standard Savings Loan $2,450. On June 10, 1940, she transferred five shares of Consumers Power Company stock to Roland Remington, and eight shares to her mother. Deceased verified and consented to these transfers. Of the Consumers Power Company stock transferred to defendant, 52 shares were subsequently transferred to Dr. Willard R. Vaughn. Defendant spent about $1,400 repairing her home in Plainwell. She purchased another house in Plainwell for $2,200, and resold the same on land contract for $2,300. She also purchased farm machinery for some of her relatives, and spent some money in equipping the farm.

The trial court filed an opinion in which it was found that deceased, during the last four or five years of his life, was not mentally competent to look after his own interests, and entered a decree requiring defendant to account for the 31-acre farm, of the value of $3,500; the house and lot in the village of Plainwell, sold on land contract by defendant for $2,300; 15 shares of stock of Consumers Power Company; and an automobile which was in the name of defendant.

Defendant appeals and urges that deceased was competent to make transfers of property in the nature of gifts; that there was no undue influences or fraud; that the deed to the Plainwell house was not intended as full payment for all future services; and that the deed to the farm and other personal property were intended as outright gifts.

In considering these questions we have in mind that when defendant went to the home of deceased she was 45 years of age, had practical nursing experience, and from the time she arrived until the death of Chauncey Abraham, on September 30, 1942, a period of eight years and four months, she took complete care of these aged people, caring for both until Mrs. Abraham died, and continuing to care for Mr. Abraham until he died. Mr. Abraham was bedridden for the last three and one-half years of his life. Mrs. Abraham was unable to go to the toilet, or comb her hair. Defendant kept house, prepared the meals, fed Mrs. Abraham, and attended to her personal needs. She also took care of the chickens and worked in the garden, carrying fuel and water to the house, and doing the washing. After the first couple of years it was necessary to give similar care to Mr. Abraham. Defendant had to shave him; cut his hair; bathe him; give him a daily alcohol rub; read to him; sing to him; and give him the necessary care when he was bedridden.

We also have in mind that the trial court did not set aside the conveyance of the Plainwell property which was effected by a deed dated July 25, 1936. Plaintiffs not having filed a cross-appeal, no issue is raised as to the ownership of this property.

The paramount issue involved in this case relates to the mental capacity of deceased during the last four or five years of his life. It is urged by plaintiffs that defendant obtained the property by the use of undue influence and fraud practiced upon deceased.

On the question of mental competence of deceased the trial court found as follows:

"Considering the age of Mr. Abraham; the fact that he was confined to his bed most of the time during the last four years of his life; that he was in great pain during most of that time and used a habit-forming drug sedative, during which period about $14,000 worth of property was transferred to defendant; that he was a man of frugal habits; seemed to have a phobia in relation to signing his name or doing any business whatever, resulting in the giving to defendant of the powers of attorney and permitting her to handle all of his business. These things tend strongly to indicate that Mr. Abraham, during the last four or five years of his life, was not mentally competent to look after his own interests."

The only medical testimony offered was that of Dr. Vaughn, who testified:

"A. He was physically incapacitated during most of that period (from 1934 until about the time of his death), I would say for the last three years he was bedridden; during the entire period he was mentally alert.

"Q. What do you mean by mentally alert, doctor?

"A. Well, I would describe it as a person who had all the faculties of mind.

"Q. Would you say he was mentally competent during the entire period you treated him from 1934 to 1942?

"A. I would.

"Q. Now was there any time during the period from 1934 to 1942 when you saw him or observed him, when you would consider him mentally incompetent?

"A. It would be when he was under the influence of any drug.

"Q. There may have been times when he had drugs that would influence him, put him to sleep or something of that kind?

"A. Exactly.

"Q. But would you consider him during that period mentally competent?

"A. I would."

Lawrence G. Matson, an agent of Consumers Power Company, testified as follows:

"I am now accounting supervisor, I was at one time superintendent of security sales. I called on Mr. Chauncey Abraham with reference to the sale of stock. * * * I have known Mr. Chauncey Abraham during his lifetime for a number of years and have also known Mrs. Mary Doster for a number of years. Mr. Abraham had requested at various times for me to take care of his stock transfers for him; this was before Mrs. Mary Doster went there to live. I took care of most any inquiry that Mr. or Mrs. Abraham made of me. * * *

"Mr. Abraham told me he wanted himself taken care of for the rest of his life and he didn't want Mary Doster to work for nothing. * * * We had no discussion about the certificates to be transferred, only that he wanted the stock transferred the way he directed as shown on these stock certificates. The last transfer was ordered in the name of Mary Doster, as I remember it. The name of Mary Doster was filled in on the certificate for five shares, which has been offered in evidence, which appears to have been transferred on January 6, 1941. * * *

"Mary Doster had nothing to do with picking up the stock certificate or filling in the name."

Attorney R.D. Remington, who prepared the mentioned deeds, was unable to be present as a witness, but by agreement between the parties a letter written to Attorney Harry Pell by Attorney Remington was admitted as evidence, the material part of which reads as follows:

"Whenever I saw Mr. A. (Abraham) he seemed alert and able to state what he wanted done. I recall that because of his age I exercised more than ordinary care to make sure he understood all the details of what he was doing and he appeared to have a complete understanding as to the effect of each transaction. As to the Consumers Power stock I believe the company attorney objected to the form of the papers authorizing transfer but finally made the transfer. You mentioned the farm deed. I believe Mr. A. took particular pains to inquire as to how he could convey the land and reserve a life estate. Don't know what conversation took place between the parties in my absence but they seemed to be getting along O.K. the few times I saw them."

Mary Doster, defendant, called for cross-examination under the statute,^* testified as follows:

"In relation to the making of the deed and calling Mr. Remington, Mr. Abraham said ``I know now that you will take care of me all the rest of my life, you said you would and I know it, and there is nobody — I owe nobody on this earth,' and then he told what he had done for different relatives and others he had given different things; he had even given his household furnishings away, and he said, ``I want you to have what there is because I know you will take care of me.' Just before that time he asked me to get Mr. Remington and have it fixed because he didn't want things to go as they had talked years before, before he realized that he would live so long. I called Mr. Remington and he came to the house and talked with Mr. Abraham in my presence. Mr. Remington asked Mr. Abraham if he was deeding this of his own free will and Mr. Abraham told Mr. Remington that he hadn't paid me enough and he knew he couldn't pay me enough and it was in this connection with the conversation with Mr. Remington that Mr. Abraham signed this deed and Mr. Remington took the acknowledgment. The deed was signed on February 21, 1941, and was recorded, but whether I had it recorded or whether I took a trip over here or Mr. Rumble, I can't tell you now."

Reuben Fisher, husband of a niece of deceased, and a witness for plaintiff, testified that he worked in Grand Rapids but had a farm about two miles from Mr. Abraham; that he stopped to see Mr. Abraham practically every week; that "as he grew older his mental condition changed and he got very childish; this condition grew worse as he grew older. Mary Doster told me that he got ideas and did a lot of talking at times." She also said "he was very feeble and that one shouldn't listen to him, * * * that he was having spells in the bedroom; she said he was feeble and that he was getting worse."

Leone Abraham, a witness for plaintiff, had been brought up from childhood by the deceased and his wife; she is the wife of Ola Abraham, a nephew. She testified that Mary Doster had talked with her about Mr. Abraham.

"She spoke to me about his mental condition and said that he had made a will and that it was on record and no matter what he did from then on it wouldn't hold good because he wouldn't be responsible. She said he was childish and forgetful, his mind was not very good at times."

Melvin Mott, a nephew, said that after 1936 his uncle's mental condition grew worse.

Mrs. Bernice Fisher, niece, testified that she and her husband saw deceased about every week-end, and that defendant said, with reference to deceased's mental condition, that "he was incompetent."

In Jeffries v. Jodawelky, 304 Mich. 421, one George Jodawelky was involved in an accident between a truck and a pedestrian. Prior to the trial George Jodawelky had made statements to other witnesses which did not harmonize with his statements on the trial of the cause. Counsel for the opposite party urged that a jury question was presented as to which statements he made were a correct version of how the accident happened. We there said:

"In our opinion, the statements given prior to the trial did not rise to the dignity of substantive evidence to present a jury question as to the credibility of the witness and permit them to determine whether or not he was acting within the scope of his employment when the plaintiff was injured."

Under the above authority, the statements of what Mary Doster told plaintiff's witnesses cannot be considered as substantive evidence. Such statements may only be considered in placing a value upon the testimony of defendant. The evidence of witnesses who testified that as deceased grew older his mental condition became worse is a conclusion unsupported by evidence in the record. The testimony of disinterested witnesses clearly shows that considering the age of deceased he was mentally alert. Under the evidence as shown in the record the trial court was not justified in finding as a fact that deceased was not mentally competent to look after his interests. In our opinion the record shows that deceased was mentally competent to understand and know what he was doing when he made the transfers of the property.

It is urged that fraud was perpetrated upon deceased by defendant in getting his property in her name. It is noticeable that no evidence is pointed out in plaintiff's brief in support of this claim.

In Mesh v. Citrin, 299 Mich. 527, we said:

"The burden of showing fraud is upon the person alleging it.John Heidsik Co. v. Rechter, 291 Mich. 708. Fraud is never presumed, Rossman v. Hutchinson, 289 Mich. 577, nor is it to be lightly inferred. Richard v. Detroit Trust Co., 269 Mich. 411. "

In our opinion plaintiff has failed to produce substantive evidence of fraud on the part of defendant.

Plaintiff urges that the deed to the farm and the transfer of money and stocks were not outright gifts. No evidence is pointed out by plaintiff to sustain this claim. However, the trial court in his opinion made the following statement:

"The testimony of defendant to the effect that she informed Mr. Abraham from time to time that the funds were getting low or were all gone, in consequence of which he turned over more and more property to her, evidently believing it was necessary to maintain the home, coupled with the attitude of defendant in concealing the transactions from those who had a right to know; her claim that she had bought the farm, together with the difficulty experienced on the hearing of this case in securing from her the facts; all these things lead inevitably to the conclusion that Mr. Abraham did not intend these transfers as gifts at all; but only as necessary sales to provide for living expenses."

The record shows that from 1939 deceased transferred to defendant $2,350 of the Standard Savings Loan certificates; 57 shares of Consumers Power stock, of the value of $5,700, and $800 from the sale of a part of the farm, together with the farm, of the value of $3,500.

We note that all of the substantive evidence upon this issue is to the effect that defendant was to use what was necessary out of the proceeds of these sales for the maintenance of the home, and the balance was to go to defendant as a gift.

The record clearly indicates that defendant gave very good care to both Mr. and Mrs. Abraham and that Mr. Abraham was desirous of showing his gratitude for the services rendered. The amount she received as gifts during a period of more than eight years of service was of substantial value, but we have in mind that deceased had no children and no one to whom he was under any obligation. Moreover, defendant was not paid regular weekly wages after Mrs. Abraham's death, a period of nearly six years. Deceased had a right to dispose of his property as he saw fit. He cannot be criticized for giving it to one who rendered him a great service.

We are not permitted to make what we think is an equitable distribution of property. We are concerned only with giving effect to the legal acts of deceased. See Pritchard v.Hutton, 187 Mich. 346.

We have carefully examined the record and the claims of the parties and conclude that the acts of deceased during his lifetime, in so far as the disposal of his property is concerned, were the actions of one free from undue influence or fraud. They represent what he wanted done.

The decree of the trial court is vacated and plaintiff's bill of complaint dismissed. Defendant may recover costs.

WIEST, J., concurred in the result.

^* See 3 Comp. Laws 1929, § 14220 (Stat. Ann. § 27.915). — REPORTER.