Carmichael v. Carmichael

• Decision Date: 26 October 1888
• Citation: 72 Mich. 76,40 N.W. 173
• Court: Michigan Supreme Court
• Parties: CARMICHAEL ET AL. v. CARMICHAEL ET AL.

40 N.W. 173

72 Mich. 76

CARMICHAEL ET AL. v. CARMICHAEL ET AL.

Supreme Court of Michigan

October 26, 1888

Appeal from circuit court, Hillsdale county, in chancery; RICHARD A WATTS, Judge.

A. St. John, ( Thomas A Wilson, of counsel,) for appellees.

MORSE J.

The complainants are two sons and a daughter of Charles Carmichael, Sr., now deceased, and the defendant Ann Carmichael. The defendants Ira Carmichael and Charles Carmichael are brothers of the complainants. Hattie E Disbrow is a sister. Charles I. Carmichael, known in the record as Charles Ira, is a son of the defendant Ira Carmichael. Charles Carmichael, Sr., in 1858, lived in Wheatland, in the county of Hillsdale, and owned 160 acres of land. In that year the complainant Delos Carmichael was convicted of a state-prison offense. His father was his bail. Delos absconded, with the full consent of all the family. His father settled the bond at an expense of something over $1,000. About this time the father deeded 120 acres of his land to his son Charles, reserving and keeping the title to 40 acres, the homestead, and in his own name. The 120 acres was afterwards deeded back to the father, excepting 40 acres which at his request was conveyed by Charles to his mother, the defendant Ann Carmichael. Soon afterwards, and up to 1866, different conveyances were made by the father to his children, in which his wife joined. By these deeds Ira received 58 acres; Charles, Jr., 35 acres; and John, 22 acres. Hattie was given $1,000 with which to purchase 20 acres of land. This left 60 acres remaining in the name of the father, and 40 acres in the name of the mother, lying together in one tract. The children took possession of the respective pieces of land conveyed to them. It does not appear that any provision was made at this time for the complainants Delos and Matilda. November 9, 1872, the father and mother made wills. The will of the former bequeathed all the personal property to his wife absolutely, and the 60 acres of land to her during her lifetime. At her death Charles was to have 10 acres, and $500 to be paid out of the real estate; and the remaining 50 acres was to divided equally between John, Delos, and Matilda. The will stated that Ira and Hattie had received what was intended as their portion of the estate. The wife devised to her husband all her personal property absolutely, and the 40 acres during his lifetime. At his death that land was to be divided equally between John, Delos, and Matilda. It is the theory of the complainants' bill that these conveyances to Ira, John, and Charles, the payment of the $1,000 to Hattie, and the two wills, were intended by the father and mother as an equitable division of their property among their children; the whole shares of Delos and Matilda, and a portion of John's, being postponed in delivery until after the death of both parents. The evidence seems to support this theory. It is also alleged in the bill that this disposition of the property was mutually agreed to by the father and mother, and that the inducement of Charles, Sr., to make his will as he did, was because of the promise of the defendant Ann Carmichael that she would make her will as she did; that each will was made and executed in pursuance of a mutual promise and agreement that each should be so made as aforesaid; and that, without said promise and agreement by the one to the other, neither of said wills would have been so made. This promise and agreement, if made, was in part an oral one. Charles, Sr., died June 28, 1884. Up to this time neither of said wills had been revoked or altered, and both were in the possession of one William Mercer, with whom they were deposited soon after their execution. In the mean time no further advancements had been made to any of the children. A few days after the death of their father the children made an arrangement with their mother by which the personal property, about $3,600, was divided equally among them, they giving their obligations to her to pay her interest upon that sum while she lived. Delos and Matilda resided away from their mother,-Matilda in Allegan county, and Delos out of the state. Hattie and Ira lived near to her. August 14, 1884, the mother conveyed by warranty deed her 40 acres to Hattie and Charles, and on the same day they deeded one-third of the same to Ira. These three on the same day gave their mother a life-lease of the same premises. These conveyances were all recorded on the day they were executed, but the register was requested not to have the fact of such execution and record published. It was nearly a year before the existence of these conveyances was discovered by the complainants. They then sought to settle the matter, and procure from Ira, Hattie, and Charles Ira a deed of the premises back to their mother, but were unable to do so. They then filed the bill in this cause. The bill, after averring the facts, alleges that the defendant, Ann Carmichael, at the time she deeded the property, was 78 years of age, old and feeble, both physically and mentally, and easily influenced; that the three beneficiaries of these conveyances, knowing her condition, conspired together to poison and prejudice her mind against the complainants, and to unduly influence her against them, in which conspiracy they succeeded, and operating fraudulently, and for the express purpose of cheating complainants out of their just rights the said wills, obtained this deed to Hattie and Charles Ira without any consideration whatever; that the mind of their mother was so weak and open to undue influence that she was not competent to execute this conveyance, and was not fit to do business; that it was obtained by undue influence, and by false and untruthful statements; that she did not know at the time she executed the deed that Ira was to have any interest in the land, and never intended it; that said conveyance was obtained by fraud practiced upon said Ann Carmichael by Ira, Hattie, and Charles Ira, and that it was done to deprive complainants of their title to the same after the death of the said Ann; that the one-third interest was conveyed to Ira without the knowledge of the said Ann. The complainants, therefore, pray that the deeds and the life-lease be set aside, and that injunction issue restraining said defendants from disposing of, transferring, or in any manner interfering with, said real estate, or any part thereof, and for such other relief as may be necessary to enforce and...