DocketNumber: Docket No. 65, Calendar No. 41,820
Citation Numbers: 301 Mich. 186
Judges: Boyles, Bushnell, Butzel, Chandler, North, Sharpe, Starr, Wiest
Filed Date: 3/17/1942
Status: Precedential
Modified Date: 9/8/2022
Plaintiff filed a claim against the estate of Ilona Barth, deceased. On appeal from the probate court of Kent county, plaintiff’s claim was disallowed by the circuit judge who heard the case without a jury. Plaintiff has appealed.
To establish her case plaintiff relied solely upon the testimony of her sister, Mrs. Poliak. Her testimony is summarized in appellant’s brief as follows:
“She (Mrs. Barth) asked Frieda not to put in a claim against Dr. Barth’s estate, saying she had taxes to pay and $30,000 to pay to the bank. She said she didn’t think she would be able to pay the interest as Dr. Barth did, but that she would pay the interest and the note within the next five years as she expected to realize some money from her property, maybe in the near future. Thereupon claimant told Mrs. Barth that she didn’t intend to put in a claim, and when Mrs. Barth said ‘Don’t put in a claim against the estate,’ the claimant replied ‘All right, I won’t.’ ”
Mrs. Lawrence did not file a claim against Dr. Barth’s estate. Mrs. Barth made no payment of
In denying plaintiff’s claim the circuit judge primarily based decision upon his determination that the testimony offered by plaintiff which she claims established a legal obligation on the part of Mrs. Barth to pay the note of her deceased husband did not establish that essential element of plaintiff’s case. Our review of the record satisfies us that the circuit judge in so holding came to the right conclusion. In his opinion filed in the case he said:
“I am unable to interpret the testimony offered as establishing the theory that Mrs. Barth’s promise to pay the note was made in consideration of claimant not pressing her claim against the estate of her uncle. ’ ’
And after reviewing the substance of the testimony hereinbefore noted the circuit judge said:
“Mrs. Lawrence’s reply was not ‘I will refrain from filing a claim if you will pay the note’ — but * * * she ‘said in reply that she did not intend to put in a claim and that she would not put in a claim.’ This is far removed from claimant’s theory that this conversation constituted a mutual contract by virtue of which Mrs. Lawrence agreed to refrain from prosecuting her claim against the doctor’s estate, if Mrs. Barth would pay the note.”
Under this record if, notwithstanding the conversation disclosed by Mrs. Poliak’s testimony, Mrs. Lawrence had filed a claim against the estate of Dr. Barth, her right to do so could not have been de
Because of the above conclusion it is unnecessary to review in detail another reason assigned by the circuit judge in support of his conclusion. But briefly it may be noted the circuit judge was of the opinion that in the first instance there was no consideration f.or the $5,000 note and therefore it could not have been established as a valid claim against the estate of Dr. Barth; and under such circumstances there was no valid consideration for the alleged agreement of Mrs. Barth to pay the note. Conrad v. Manning’s Estate, 125 Mich. 77; Fischer v. Union Trust Co., 138 Mich. 612 (68 L. R. A. 987, 110 Am. St. Rep. 329). Appellee also asserts that plaintiff’s right to recover is barred under the statute of frauds and the statute of limitations, but there is no occasion to discuss herein the merits of these contentions.
The judgment entered in the circuit court is affirmed, with costs to appellee.