Caswell v. Stearns
| Decision Date | 02 March 1932 |
| Docket Number | No. 35.,35. |
| Citation | 257 Mich. 461,241 N.W. 165 |
| Parties | CASWELL v. STEARNS et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Mason County; Hal L. Cutler, Judge.
In the matter of the Estate of Lydia Elizabeth Smith, deceased. From a summary judgment for Sidney R. Caswell on appeal from an order of the probate court allowing his claim, Robert L. Stearns and another, as executors of decedent's last will, appeal.
Reversed and remanded.
Argued before the Entire Bench.Matthews & Von Sprecken, of Ludington (I. A. Fish, of Milwaukee, Wis., of counsel), for appellant.
A. A. Keiser, of Ludington, and F. E. Wetmore, of Hart, for appellee.
For some years plaintiff and his family lived near Lydia Smith at Ludington, and rendered her many neighborly services. Plaintiff claims that in 1919 he contemplated moving to Detroit, and that, in consideration of his remaining at Ludington, Miss Smith contracted to leave him at her death sufficient money to produce $3,000 per year interest. His claim on the contract was allowed against her estate in probate court at $60,000, and the executors appealed.
In circuit court, plaintiff moved for summary judgment upon affidavits of his wife and cousin. Defendants filed affidavit of merits provided by statute, but did not deny the contract upon oath of a competent witness, as required by court rule 30. With some doubt of the application of the statute the court ordered summary judgment.
We think summary judgment improper in this kind of proceeding. The statute and rule must be read in connection with the general law. The remedy was not intended to apply to a case where, by reason of the death of the real defendant, his representatives are prevented from making the required showing and his estate would be deprived of defense upon the merits. Claims against the estates of deceased persons must be proved by the claimants, and judicially found. They cannot be established by concession of the decedent's representatives. Much less can they be held proved through inability of the representatives to discover competent witnesses to specifically deny the claim. Frequently, the only defense the representatives can make is through weakness of the claim, developed on cross-examination and by attack upon the credibility of claimant and his witnesses. No such defense is open on motion for summary judgment. Neither the statute nor the rule was designed to operate as a practical repeal of the probate law requiring affirmative proof of claims against the estates of decedents.
In Hampton v. Van Nest's Estate, 196 Mich. 404, 413, 163 N. W. 83, 86, the rule requiring denial on oath of execution of a...
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Norwood Morris Plan Co. v. McCarthy
... ... detail. Where a defendant is representative of a deceased ... person, there may be ignorance of the facts. See Caswell ... v. Stearns, 257 Mich. 461, 463, 241 N.W. 165; ... Woodmere Academy v. Moskowitz, 212 A.D. 457, 459, ... 208 N.Y.S. 578. But mere want of ... ...
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Caswell v. Smith's Estate
...for in this case. Thereupon counsel for plaintiff urged that, when the case was here on appeal from summary judgment (Caswell v. Stearns, 257 Mich. 461, 241 N. W. 165), the question was raised, and: ‘If the Supreme Court had considered there was any merit in this proposition, they know how ......
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Dempsey v. Langton
...Mich. 52, 222 N. W. 104;Peoples Wayne County Bank v. Wolverine Box Co., 250 Mich. 273, 230 N. W. 170, 69 A. L. R. 1024;Caswell v. Stearns, 257 Mich. 461, 241 N. W. 165;Cohen v. Peerless Soda Fountain Service Co., 257 Mich. 679, 241 N. W. 810;Cass v. Washington Finance Co., 263 Mich. 440, 24......
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Faber v. Glashagen's Estate, 13
...the latter the burden of proving its due execution.' Hampton v. Van Nest's Estate, 196 Mich. 404, 163 N.W. 83, and Caswell v. Stearns, 257 Mich. 461, 463, 241 N.W. 165, were cited as supporting authorities. In the latter case it was 'Claims against the estates of deceased persons must be pr......