104 N.W. 620 (Mich. 1905), Botsford v. Burr

Citation:104 N.W. 620, 141 Mich. 370
Opinion Judge:GRANT, J. (after stating the facts).
Party Name:BOTSFORD v. BURR et al.
Attorney:[141 Mich. 373] Frank L. Carpenter, for appellants. Myron H. Walker, for appellee.
Judge Panel:Argued before CARPENTER, GRANT, BLAIR, MONTGOMERY, and OSTRANDER, JJ.
Case Date:September 20, 1905
Court:Supreme Court of Michigan
 
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Page 620

104 N.W. 620 (Mich. 1905)

141 Mich. 370

BOTSFORD

v.

BURR et al.

Supreme Court of Michigan

September 20, 1905

Error to Circuit Court, Kent County; Alfred Wolcott, Judge.

Action by Mary L. Botsford against John F. Botsford and another, executors of Sarah C. Turner, deceased. There was a judgment for plaintiff, and Helen M. Burr and others intervened, and the interveners bring error. Reversed.

This is an action of replevin for two promissory notes executed by plaintiff to the deceased, Sarah C. Turner, and certain certificates of stock assigned therewith as collateral security. One note is dated June 15, 1893, and the other September 1, 1893, and they are for $500 each. Mrs. Turner died December 16, 1901. The notes and securities collateral thereto were found, with her papers and other evidences of debt, in a box under lock and key. The box, its contents, and the key were under her exclusive control, and the key was on her person when she became unconscious, just before death. She had no children. She left a will bequeathing various sums to some of her relatives, including the plaintiff, to whom she bequeathed, with four other relatives, $3,000 each. The will was executed in June, 1900. For other provisions of the will, see Turner v. Burr (decided July 21, 1905) 104 N.W. 379. She left an estate of about $60,000, consisting of about half of houses and lots in the city of Grand Rapids, and half in securities of various kinds. She was a shrewd, careful, and experienced business woman. The defendant Botsford is the husband of plaintiff. The executors inventoried these notes as a part of the estate. Plaintiff made a demand of the defendants' executors for them, and, upon refusal to deliver them to her, she on August 8, 1902, presented a sworn petition to the probate court of the county of Kent, asking for the surrender of these notes and securities collateral thereto. Her grounds for asserting title thereto are there stated as follows: 'Your petitioner further represents that during the lifetime of the said Sarah C. Turner, and a short time--that is to say, about 30 days--before her death, she, the said Sarah C. Turner, in consideration of the natural love and affection which she entertained for your petitioner, presented to your petitioner the said principal sum of $1,000, represented by the said notes, and the said notes, and promised that she would deliver the same to her, and was only prevented from making such delivery by the distance at which your petitioner resided from her, and the unforeseen sudden attack of disease which...

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