Clay v. Layton

• Citation: 134 Mich. 317,96 N.W. 458
• Court: Supreme Court of Michigan
• Decision Date: 15 September 1903
• Parties: CLAY v. LAYTON et al.

96 N.W. 458

134 Mich. 317

CLAY v. LAYTON et al.

Supreme Court of Michigan

September 15, 1903

Appeal from Circuit Court, Lenawee County, in Chancery; Guy M Chester, Judge.

Action by Frank W. Clay, as administrator of the estate of Abel Whitney, deceased, against Sarah Layton and others. From a judgment in favor of certain defendants, Sarah Kline Frary appeals. Reversed.

Abel Whitney, a wealthy widower, died at Adrian October 18, 1899 leaving no descendants. His heirs consisted of Sarah Layton a sister, of Wapakoneta, Ohio, and numerous nephews and nieces residing in Michigan and elsewhere. Soon after Abel Whitney's death, the complainant was appointed administrator of his estate, upon the petition of Josephine Harris, a niece of the deceased, and he qualified in due form. The bill alleges that Abel Whitney said to the complainant on several occasions that he had made distribution of his property as he wanted it distributed, and that he wanted it turned over to the several parties entitled thereto, by the complainant; and that Mrs. Freitag, his housekeeper, had been instructed to hand complainant the keys to a certain cupboard, standing in his library, when he should die, and that he wished complainant to open it, where he would find a tin box locked with a padlock, the key to which was in the pocket of the vest he then wore. It alleges further that after the death of Abel Whitney all transpired as he had stated. Upon opening the box complainant found sundry large envelopes, which, for convenience, he marked from numbers 1 to 17, inclusive. He also found three other envelopes, directed to himself, which he has marked 'A,' 'B,' and 'C.'

Memoranda upon and contents of envelope No. 1 were as follows Indorsed: 'Deed of the Masonic Temple property to various persons in lieu of anything in my will. A. Whitney.' 'Two-sevenths, Sarah Whitney Layton.' 'One-seventh, Fanny Berdan.' 'One-seventh, Dwight A. Whitney.' 'Two-sevenths, children of Mrs Stevens.' 'One-seventh, Mrs. Ida Kline Frary.' Inside: Warranty deed, dated March 9, 1897, from Abel Whitney to Sarah A. Kline Frary, oneseventh, Helen Stevens Rhodes one-seventh, and Edgar Stevens one-seventh, Fanny W. Berdan one-seventh, and Dwight Whitney one-seventh, and Sarah W. Layton two-sevenths of the undivided one-fourth part of the Masonic Temple in Adrian. Also the following memoranda: 'In addition to the enclosed, I want each one named in it to have the following sums in money, and I have made checks for the amounts to be delivered to them at my death: Sarah A. Kline Frary, $200. Helen Stevens Rhodes, widow, $200. Edgar Stevens, brother of Helen, both of Delphos, Ohio, or near there, $200. Fanny Whitney Berdan, of Detroit, $200. Dwight Whitney, her brother, of Detroit, $200. Sarah Whitney Layton, of Wapakaneta, Ohio, $400.' Underneath said memoranda is written in the handwriting of said Whitney: 'Mr. Clay, or whosoever has these papers, deliver them to the parties on my death, checks and also deed. Abel Whitney.' Wrapped in the memoranda were checks upon his banker, drawn by Abel Whitney to the respective persons named, for the several sums indicated.

No. 2. A similar indorsement as to Amelia H. Miller. Contents, a deed and a check.

No. 3. Appropriately indorsed, contained a deed to Frank W. Clay (complainant) and Rial Clay of real estate, in trust for certain minors named therein.

No. 4. Indorsement: 'This is to be handed to the officers of the Oakwood Cemetery Association in case of my death.' On the inside of said envelope was the following memoranda: 'The enclosed check for $200 is a bequest to the Oakwood Cemetery Association for the care of my lots in said cemetery, numbers 13, 14, and 15, block 2, I think. [Signed] April 9th, 1897. Abel Whitney.' On the inside of said envelope were found two checks on Waldby & Clay's State Bank--one dated April 9, 1897 (the same date as the memoranda), payable to the Oakwood Cemetery Association, or order, for the sum of two hundred dollars, signed by Abel Whitney; and the other check dated October 7, 1899, drawn upon Waldby & Clay's State Bank, for the sum of five hundred dollars, payable to order of the freasurer of Oakwood Cemetery Association, signed by Abel Whitney. Upon the margin of said check is written in the handwriting of said Whitney: 'For the perpetual care of his lots, numbers 13, 14, and 15, block 2.'

No. 5 contained a mortgage and an assignment thereof from Abel Whitney to two nieces, living in Kansas.

No. 6 was similar to No. 5, to Emily J. Van Buskirk, of New Jersey, a niece, as to contents. The envelope was indorsed: 'Emily Jane Van Buskirk, Passaic New Jersey, to be sent to her in lieu of anything in my will. A. Whitney.'

No. 7 was indorsed: 'Assignments to Charles Whitney of Rome township, Lenawee county, to be delivered to him at the time of my death. [Signed] Abel Whitney.' Contents, three envelopes, duly assigned.

No. 8. Indorsed: 'Josephine Whitney Harris and Augusta Whitney Teachout.' Contents, two bonds executed by the city of Coldwater, Michigan, Nos. 40 and 41, for five hundred dollars, each inclosed in a wrapper, upon which is written in the handwriting of said Abel Whitney the following memorandum: 'Ithaca school bond, No. 29, to Mrs. Friday, $500 with her papers. Schwick mortgage, etc. A. Whitney.' Also the following memorandum: 'A corresponding bond to above No. 29, No. 28, for $500 I give to Fanny Lee Berdan, daughter of my late brother William A. Whitney, under the same instructions to any one handling my matters and have placed the said bond under an envelope covering the F. J. Kuhlman mortgage. This bond is under envelope with F. J. Kuhlman mortgage assignment. Coldwater school bond No. 40, I give and bequeath to Augusta W. Teachout, and a like bond, No. 41, I give and bequeath to Josephine W. Harris, both children of my late brother Russell Whitney, to be delivered to them immediately after my death, now in envelope with deed of part of my residence property. Dated January 27, 1899. Adrian Michigan. A. Whitney.'

No. 9. Indorsed: 'assignment of Weaver mortgage to Charles Herbert Whitney and brother, four sisters, six persons in all.' Contents, a mortgage for $3,000, duly assigned to persons named on March 23, 1897.

No. 10. Indorsed to persons named. Contents, assignment of mortgage March 23, 1897.

No. 11. Indorsement as above. Contents, assignment of mortgage, same date.

No. 12. 'Wyman Stanton mortgage to be sent to Sarah E. Farnham, daughter of Alfred W. Budlong, now deceased. Her residence is Passaic, New Jersey; also check enclosed. [Signed] A. Whitney.' Contents, assignment of mortgage; also a check to person named, $500.

No. 13. Indorsed: 'Chas. Wilbee Esq., Adrian Mich.' Contents, assignment of mortgage, same date.

No. 14. Indorsement similar to others. Contents, assignment of mortgage, same date.

No. 15. Indorsement: 'Louis Krigger and wife, mortgage assignment to Mary (Waller Bohn, $100.' Also the following memorandum: 'Mary Waller Bohn, Adrian, Michigan: At my death whosoever has charge of my matters, hand this to Mary Bohn. [Signed] A. Whitney.' Contents: On the inside of said envelope was an assignment, which had been executed by said Abel Whitney, with an express consideration of $100, to Mary Waller Bohn, of the same place, of a mortgage made by Louis Krigger and wife to Almira Budlong, purporting to have been executed on the 13th day of February, 1897, in the presence of Rial Clay and G. N. Jones, and on the same day duly acknowledged before Rial Clay, notary public. The signature that had been written to said assignment had been subsequently cut out, as appears by said written assignment. There was also found within said envelope the following memorandum: 'This mortgage was assigned to Mary Waller Bohn but soon after Mr. Krigger paid it. I therefore make my check payable to her, so in case of my death she can get the money that was paid on the mortgage as principal, viz: $100. [Signed] A. Whitney.' Within said envelope was also found a check, dated April 6, 1897, on Waldby & Clay's Bank, made by said Abel Whitney, payable to Mary Waller Bohn, or order, for the sum of one hundred dollars.

No. 16. Indorsement: 'For Fanny Whitney Berdan of Detroit.' Contents, two municipal bonds, School District No. 1, townships of Ithaca, Star, Arcada, Newark, and Emerson, one for $500 and the other for $400; also the following memorandum: 'I give and bequeath unto Fanny Lee Berdan, daughter of my late brother William A. Whitney, Ithaca county school bond No. 28 for $500, which bond is herewith enclosed, due in 1902, together with coupons for the same, to be handed to her at my death without further ceremony, by whosoever has charge of my estate. January 27th, 1899. A. Whitney.' Also the further memorandum: 'I here add bond No. 30, herewith enclosed, $400, to be delivered to her in like manner as the $500 bond above described. [Signed] A. Whitney.'

No. 17. Indorsement: 'Note of S. N. Dada to be sent or given to him at my death. A. Whitney.' Contents, another envelope, with the following memoranda upon it in the handwriting of said Whitney: 'Notes due me. In case of my death these notes enclosed are to be given to the parties who made them. Dated April 15th, 1898. [Signed] A. Whitney.' 'Insurance on house in Home of New York expires in 1901.' Also notes and policy referred to.

Envelope A. On the back of envelope A, hereinbefore referred to, is the following memorandum in the handwriting of said Whitney 'How to dispose of any surplus of my estate after former amounts have been distributed as requested. A. Whitney.' On the back of said envelope is a further memorandum as follows: 'Circumstances had so changed since I made a will that it was not satisfactory to me and I have taken this course to...