Allen v. Conklin

• Decision Date: 10 March 1897
• Citation: 70 N.W. 339,112 Mich. 74
• Court: Michigan Supreme Court
• Parties: ALLEN v. CONKLIN ET AL.

70 N.W. 339

112 Mich. 74

ALLEN v. CONKLIN ET AL.

Supreme Court of Michigan

March 10, 1897

Appeal from circuit court, Montcalm county, in chancery; Frank D. M Davis, Judge.

Bill by Edith A. Allen against Egbert S. Conklin and Daniel W Heisler, executors of Richard Low, deceased, and Jonah Low and Peter Van Vleck. From a decree for complainant defendants appeal. Affirmed.

N. O Griswold, for appellants.

Lemuel Clute and Miller & Clute, for appellee.

MOORE, J.

Complainant filed her bill of complaint, alleging, in substance, that she is now 36 years old; that she is a daughter of David Low, who was killed at the battle of the Wilderness; that her mother died when she was about six weeks old; and that when about four months old she was adopted by William M. Richardson and wife, and lived with them about two years, and then was taken by Edward Thromby and wife, with whom she resided in Clinton county, Mich., until about eight years ago, when she was taken by her foster parents to Lambton county, Ont., where she still resides. It alleges that Richard Low, who is now deceased, was appointed her guardian, and received, as guardian, a large amount of money from the United States government as a pension, which she was entitled to by reason of her being one of the children of David Low, who was a volunteer in the United States army. The bill alleges that said guardian made an application for said pension, and it was paid to him for her use and benefit; that said pension amounts to at least the sum of $707.09; that he also received some bounty money and back pay, in which she has an interest; that said guardian never filed any account in the probate court as such guardian, or in any other way accounted to your oratrix, nor to any public officer, for said funds, and that he has never given her any knowledge or information whatever concerning the matter, nor ever stated to her or brought to her knowledge any facts concerning it that would put her upon inquiry concerning her interests therein; that she never had any knowledge of the facts until November, 1895, which would put her on inquiry as to her rights in the premises; and that he has fraudulently suppressed the facts from her concerning it. The bill alleges that Richard Low died in 1883, testate that his will has been probated in Montcalm county; that among the provisions in said will the heirs of David Low are given the sum of $150, to be divided equally among them; that she has never had her share of said legacy; and that she is one of David Low's heirs. She further alleges that her said guardian intended to defraud her out of said pension money; that commissioners were appointed to hear and allow claims against the estate of Richard Low, deceased, on or about November, 1883. It also alleges that subsequent proceedings in relation to such commission have been irregular, and not in compliance with law, and therefore void, and that they in no way operate as a bar to the prosecution of further claims against said estate; that all subsequent purchasers or incumbrancers of any of said estate take their title subject to any claims against said Richard Low, deceased, and are not good-faith purchasers or incumbrances thereof as against complainant's claim; that Jonah Low was one of the heirs and legatees of said Richard Low, deceased, and that he is now in possession of a valuable piece of real estate belonging to said estate, worth more than enough to pay all your oratrix claims, after all the other debts are paid; that there is no personal estate out of which to satisfy such a decree; that he had full knowledge of the fact that an accounting in her behalf had been suppressed by said guardian, and that he is in possession of said premises with full knowledge of all her rights; and that Peter Van Vleck is a subsequent purchaser or incumbrancer of said premises, with full knowledge of all her rights. Said bill of complaint also alleges that no facts have come to complainant's knowledge which would set the statute of limitations in motion; that she has been entirely ignorant of all her rights in the premises until November, 1895; that, from the fraudulent conduct of her guardian, she is entitled to come into a court of chancery, and have an accounting and a lien declared on the land left by her guardian, and an order of sale made; that she is entitled to a lien by virtue of her claim herein stated, prior to any rights...