Casgrain v. Hammond

• Decision Date: 22 September 1903
• Citation: 134 Mich. 419,96 N.W. 510
• Court: Michigan Supreme Court
• Parties: CASGRAIN et al. v. HAMMOND et al.

96 N.W. 510

134 Mich. 419

CASGRAIN et al. v. HAMMOND et al.

Supreme Court of Michigan

September 22, 1903

Appeal from Circuit Court, Wayne County, in Chancery; George S Hosmer, Judge.

Action by Annie H. Casgrain and others against Charles F. Hammond and others. From a judgment overruling a demurrer to the complaint, defendants appeal.

Thomas A. E. Weadock, for appellants.

Brennan Donnelly & Van De Mark, for appellees.

MOORE J.

This proceeding was commenced in chancery by filing a bill of complaint, some portions of which read as follows: 'That during her lifetime Ellen Hammond, now deceased, of the city of Detroit, Wayne county, Michigan, acquired the title in fee and was the owner' of real estate, which is described in the bill of complaint, 'upon which said described lands and premises the said Ellen Hammond caused to be constructed a building costing * * * upwards of seven hundred thousand dollars, * * * and was at the time of the death of said Ellen Hammond and now is of the value of upward of one million of dollars. That on the 20th day of February, A. D. 1898, the said Ellen Hammond died intestate, leaving no last will, and subsequently William J.

Hammond and your oratrix Annie H. Casgrain were appointed administrators of the estate, and duly entered upon the performance of their duties as administrators. That the estate of the said Ellen Hammond has never been closed, nor have the administrators filed their final account, or been discharged. That the said Ellen Hammond left as her heirs at law George H. Hammond, Charles F. Hammond, William J Hammond, Florence P. Hammond, Ethel K. Hammond, Edward P Hammond, and your oratrix Annie H. Casgrain, all children of the said Ellen Hammond, and your orator George H. Lee, grandchild of the said Ellen Hammond, being the son of Sarah Hammond Lee, who had intermarried with Gilbert W. Lee, and had died prior to the death of Ellen Hammond; and the said heirs at law became entitled in equal proportions of all of the estate of Ellen Hammond, share and share alike. That on or about the 12th day of September, A. D. 1895, the said Ellen Hammond executed to Charles F. Hammond, one of the above-named heirs at law, a warranty deed in form of the lands and premises above described, in which deed the said Charles F. Hammond is described as trustee, and in which said deed the consideration for the conveyance is stated as the sum of one dollar ($1) and other considerations, * * * which deed was recorded in the office of the register of deeds for the county of Wayne on the 1st day of October, 1895; and your orators show that by reason of the recording of said deed as aforesaid in the public records in the office of the register of deeds of Wayne county the title in fee to said lands appears to be in the said Charles F. Hammond. * * * Your orators further allege that they are informed and verily believe, and therefore charge the truth to be, that it was not the intention of the said Ellen Hammond, deceased, to vest the title in fee of the said lands and premises in the said Charles F. Hammond, trustee, and they are informed and believe and charge the truth to be that on the same date, and simultaneously with the execution of the said deed to Charles F. Hammond, trustee, by the said Ellen Hammond, the said Charles F. Hammond executed and delivered an instrument in writing, duly acknowledged and witnessed, so that the same was entitled to be recorded in the office of the register of deeds for the county of Wayne under the strict requirements of the law with reference thereto, which said instrument in writing is denominated a 'declaration of trust,' by the terms of which the said Charles F. Hammond did thereby declare, as grantee and trustee in the deed named aforesaid, that he received and held the title to the same property in trust for the purposes in said declaration of trust named--that is to say, to let, lease, manage, and control the property according to his best judgment so as to yield as large an income as possible, and, after paying and discharging the taxes and repairs thereon and expenses in the care and management, to account and pay over to the said Ellen Hammond, during the term of her natural life, the net income derived therefrom at such times as she might desire for her use and maintenance, and, should the said Ellen Hammond die before the expiration of the period of fourteen years from the execution of the trust, then the said net income was to be divided and paid in equal proportions by the said Charles F. Hammond to William J. Hammond, Florence P. Hammond, Ethel K. Hammond, Edward P. Hammond, and the said Charles F. Hammond, and at the expiration of the term of the trust created thereby he should convey the land and premises in question to William J. Hammond, Florence P. Hammond, Ethel K. Hammond, Edward P. Hammond, and the said Charles F. Hammond, or to the survivor or survivors of them, in equal undivided shares, and that the interest of any one or more of the persons named, to wit, Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond, who may decease before the expiration of the trust hereby created, shall pass to and be conveyed to the survivor or survivors of the persons above named, and shall not pass to the heirs or assigns of any one of them who may decease; that the trust hereby created should continue until the decease of the said Ellen Hammond, and, should she decease before the expiration of fourteen years from the date thereof--that is to say, on or before the 12th day of September, A. D. 1909--then the said trust shall continue until the expiration of the fourteen years from the date of said instrument, and in that event terminate at the end of fourteen years from the date thereof. * * * That the said declaration of trust has never been recorded, so that the records of the title to the said lands and premises do not disclose the correct nature and extent of the title which the said Charles F. Hammond has in the lands and premises aforesaid, and your orators are informed and believe, and therefore charge the fact to be, that the said declaration of trust is now in the actual possession of the said Charles F. Hammond, trustee. * * * Your orators further show unto the court that the said declaration of trust and the said warranty deed in truth and in fact constitute one instrument, and together show the intent and purpose with which the said Ellen Hammond, deceased, conveyed the title of the lands and premises hereinbefore described to the said Charles F. Hammond, trustee, and she is entitled to have this court so declare; that by the terms thereof the said Ellen Hammond attempted to convey the said lands and premises to the said Charles F. Hammond, trustee, for uses and purposes and upon terms and conditions in violation of law, and especially in violation of the provisions of the statute of this state more specifically described as compiler's sections 8796 and 8797 of the Compiled Laws of Michigan for 1897, being sections 14 and 15 of chapter 237 of said Compiled Laws, pertaining to real property and of the nature and quality of the estates in real property and the alienation thereof. * * * That immediately upon the death of the said Ellen Hammond your orators, equally with the other heirs of the said Ellen Hammond, each inherited and became by right the owners in fee of an undivided interest in the said lands and premises by inheritance--that is to say, each an undivided one-eithth thereof; and each of the said heirs of the said Ellen Hammond also became the owners in fee of an undivided one-eithth interest thereof by inheritance, and as such became entitled to have and receive from time to time as the same accrued a like proportion of the rents and profits arising therefrom. * * * Your orators further show: That George H. Hammond died intestate in the city of Detroit in the year 1886, leaving a large estate, consisting of real and personal property, which estate was afterwards administered in the probate court for the county of Wayne. That the administration thereof has never been closed, and a large part of the real estate thereof has never been partitioned and distributed. That as one of the distributees of the estate of said George H. Hammond the said Ellen Hammond received on account of her share or interest therein personal property, which, converted into money, amounted to about one million dollars. That the other distributees of said estate and heirs of the said George H. Hammond were George H. Hammond; Annie H. Casgrain, your oratrix; Sarah Hammond Lee, now deceased, and of whom your orator George H. Lee is the sole heir, as hereinbefore referred to; Charles F. Hammond; William J. Hammond; Florence P. Hammond; Ethel K. Hammond, since deceased; and Edward P. Hammond. That after the death of said George H. Hammond the said Ellen Hammond was duly appointed the guardian of the persons and estates of William J. Hammond, Charles F. Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond, who were at the time minors and infants under the age of twenty-one years, and as such guardian the said Ellen Hammond received into her possession and had control of a large amount of money and personal property of each of the said infants, which was inherited by them from George H. Hammond, deceased, and was distributed to them as heirs of his estate. That, as your orator is informed and believes, when the said Ellen Hammond purchased the land and premises hereinbefore described and erected the building thereon the said Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond were still minors, infants under the age of twenty-one years, and the said Ellen...