Abraham v. Doster

• Decision Date: 02 January 1945
• Docket Number: No. 60.,60.
• Citation: 17 N.W.2d 242,310 Mich. 433
• Parties: ABRAHAM et al. v. DOSTER.
• Court: Michigan Supreme Court

310 Mich. 433

17 N.W.2d 242

ABRAHAM et al.

v.DOSTER.

No. 60.

Supreme Court of Michigan.

Jan. 2, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Allegan County, in Chancery; Fred T. miles, judge.

Action by Ola Abraham and Chester A. Ray, special administrator of the estate of Chauncey F. Abraham, deceased, against Mary Doster for an accounting and to set aside certain conveyances made by deceased during his lifetime to defendant. From an adverse decree, defendant appeals.

Decree vacated and bill of complaint dismissed.

REID and BUTZEL. JJ., dissenting.

Before the Entire Bench.

Leo W. Hoffman, of Allegan, and Alexander, McCaslin & Cholette, of Grand Rapids, for appellant.

Harry Pell, of Allegan, for appellees.

SHARPE, Justice.

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, Chauncy 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 bed-ridden. 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 E. Abraham his business affairs had been taken care of by a neighbor, Elmer Chamberlin, 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 and Loan of the value of $3000; 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 and Loan $2450. 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 $1400 repairing her home in Plainwell. She purchased another house in Plainwell for $2200, and resold the same on land contract for $2300. 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 $3500; the house and lot in the village of Plainwell, sold on land contract by defendant for $2300; 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 influence 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 bed-ridden 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 bed-ridden.

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 habitforming 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 redas 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...