Bagby v. McCabe (In re Kramer's Estate)

• Court: Michigan Supreme Court
• Writing for the Court: SHAREPE
• Citation: Bagby v. McCabe (In re Kramer's Estate), 324 Mich. 626, 37 N.W.2d 564 (Mich. 1949)
• Decision Date: 18 May 1949
• Docket Number: No. 30.,30.
• Parties: In re KRAMER'S ESTATE. BAGBY et al. v. McCABE.

324 Mich. 626

37 N.W.2d 564

In re KRAMER'S ESTATE.BAGBY et al.

v.McCABE.

No. 30.

Supreme Court of Michigan.

May 18, 1949.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Oakland County; Frank L. Doty, judge.

Proceeding in the matter of the estate of Emma Kramer, deceased, wherein Hazel M. Bagby offered a will and codicil for probate which was contested by Hazel Elizabeth McCabe. From adverse judgment, the contestant appeals.

Affirmed and case remanded with directions.

Before The Entire Bench.

Fischer, Brown, Sprague, Franklin & Ford, Detroit (David G. Barnett, Detroit, of counsel), for appellant.

Voorhies, Long, Ryan & McNair, Detroit, for appellees.

SHAREPE, Chief Justice.

This is a will contest. Emma Kramer died April 14, 1947, at the age of 81 years, leaving an estate valued at approximately $160,000.

On July 16, 1943, Mrs. Kramer executed a will by which she bequeathed $5,000 to her grandson Walker M. Bagby, $5,000 to John K. Bagby, another grandson, $5,000 to Mrs. Hazel Elizabeth McCabe, her granddaughter and also adopted daughter, and the residue to her daughter Mrs. Hazel M. Bagby.

On December 20, 1946, Mrs. Kramer executed a codicil to her will, the pertinent part of which reads as follows:

‘I give and bequeath to my granddaughter, Mrs. Hazel Elizabeth McCabe, of New York City, New York, who is also my adopted daughter, the sum of one thousand dollars ($1,000.00). I make no further provision for said granddaughter and adopted daughter for the reason that she received or will receive the residue of the estate of her mother, my deceased daughter, Mrs. Florence E. Kramer, and at my death will received a share of the residue of the estate of my deceased husband, Emil J. Kramer, and I feel that she has been sufficiently provided for.

‘I so also hereby republish, ratify and reaffirm my said Last Will and Testament in all respects as modified by this First Codicil.'

The material facts leading up to the issues involved in this case are as follows. Emil J. Kramer and his wife, Emma Kramer, lived in Missouri where Mr. Kramer was associated with the International Shoe Company and had accumulated a considerable estate. They had two daughters, Hazel May, born in 1889, and Florence, born in 1887. Mr. and Mrs. Kramer lived in Missouri from about 1896 until 1942, when Mr. Kramer died.

Florence Kramer was married in 1910 to F. M. White. As a result of this marriage one child was born who was named Hazel Elizabeth. The marriage between F. M. White and Florence Kramer did not prove successful and the parties were divorced in 1914. At the time of the dissolution of this marriage an agreement was reached whereby Mr. and Mrs. Kramer agreed to adopt the child which was done on December 3, 1914. The child, Hazel Elizabeth, lived with her adopted parents until 1935 when she married Terrence McCabe. Hazel M. Kramer, the other daughter, married Francis Bagby in 1914 and moved to Michigan where she has since resided.

Mr. Kramer suffered a stroke in 1936 and was never really well after that. For a period of approximately three years prior to his death in 1942, he was more or less helpless physically. Mrs. Kramer was not too well and during this period Florence Kramer attended to the needs of her parents. Following the marriage of Hazel Elizabeth McCabe in 1935, she and her husband lived in various states owing to the fact that Mr. McCabe was employed by the United States Department of Agriculture. It also appears that from early childhood Florence Kramer and her sister Hazel Bagby was not too friendly and this lack of understanding persisted until the time of Florence Kramer's death in 1943.

Within a short period after Mr. Kramer's death, Mr. And Mrs. Bagby took Mrs. Kramer to a St. Louis attorney and had a will drafted, payment for which was partly made by Mr. Bagby. This will was executed on April 13, 1942, and provided that the residue of Mrs. Kramer's estate should be held in trust for her three daughters. On July 16, 1943, Emma Kramer executed another will in Mr. Carey's office in Detroit in which she bequeathed Hazel Elizabeth McCabe the sum of $5,000 and the residue of her property to her daughter Hazel M. Bagby. On December 20, 1946, Mrs. Kramer executed a codicil to this will as hereinbefore mentioned.

It also appears that in the early part of 1943, Florence journeyed to California and was taken seriously ill. Later she was brought to Iowa where she died on May 29, 1943. A short time after the death of Mr. Kramer, Emma Kramer came to Michigan and lived with her daughter Hazel M. Bagby in the city of Birmingham. Beginning in 1943, while living with her daughter Mrs. Bagby, Mrs. Kramer disposed of a substantial part of her estate by gifts to Mrs. Bagby and partly by transferring securities to the joint names of herself and Mrs. Bagby. Mrs. Kramer also made a joint account of her commercial bank account in a St. Louis bank with Mrs. Bagby and shortly thereafter this bank account was transferred to a Detroit bank.

On April 16, 1947, Mrs. Bagby filed a petition in the probate court of Oakland county for the probate of the will and codicil at issue in this cause.

Hazel Elizabeth McCabe filed objections to the probate of the will for the following reasons:

‘1. Said deceased at the time of her death was not domiciled in said county of Oakland.

‘2. Said instruments are not said deceased's last will and testament nor a codicil thereto.

‘3. Said writings so offered for probate were not signed, published and attested by said deceased in the manner required by the law of this state for the valid execution of wills.

‘4. Said writings so offered for probate were not signed, published and attested by said deceased in the manner required by the law of the state of her domicile for the valid execution of wills.

‘5. If said instruments were ever executed by said deceased such execution was induced by fraud.

‘6. If said instruments were ever executed by said deceased such execution was induced by mistake.

‘7. Said deceased was not of sound and disposing mind and memory at the time of the supposed execution of said instruments.

‘8. If said instruments were executed by said deceased such execution was induced by undue influence, duress, suggestion and coercion practiced upon said deceased.

‘9. Said instrument if they were ever validly executed by said deceased were afterwards revoked.'

After a hearing was had the probate court entered an order admitting the will to probate. Contestant appealed to the circuit court of Oakland county with a demand for a jury trial. The cause came on for a hearing in the circuit court on June 15, 1948. At the close of proofs offered by the contestant, a motion was made to direct a verdict in favor of the proponents of the will.

The trial court granted the motion, stating:

‘It seems that Emma Kramer made a Will in Birmingham or Detroit when living in Birmingham, dated July 16, 1943. She made a Codicil to that Will, dated December 20, 1946, Emma Kramer died in April 14, 1947. Her will was admitted to the probate court of this County. There was a hearing and a decision and the contestant has appealed it to this court and has asked for a trial by court and jury.

‘The proponent, that is the party who wishes to sustain the Will, is Mrs. Bagby. The contestant, whose wish it is to have this Will declared not the Last Will and Testament of Mrs. Emma Kramer, is Mrs. McCabe. The Will is submitted by the proponent; testimony was taken as to its execution and that established the prima facie case for the proponent. Then the contestant came in and claimed that Emma Kramer, at the time she made the Will of July 16, 1943, and the Codicil of December 20, 1946, was mentally incompetent, or that her mind was in such a state that she could be easily influenced and, second, that undue influence was used by Mrs....