Cook v. Fraser

• Decision Date: 30 June 1941
• Docket Number: No. 36.,36.
• Parties: COOK v. FRASER.
• Court: Michigan Supreme Court

298 Mich. 374

299 N.W. 113

COOK

v.FRASER.

No. 36.

Supreme Court of Michigan.

June 30, 1941.

Suit by Ethel Cook against Isabelle Fraser, individually and as administratrix of the estate of Donald A. Fraser Estate, to compel the defendant to inventory certain securities as part of the assets of the estate. From an adverse decree, defendant appeals.

Reversed, with directions.

See, also, 288 Mich. 392, 285 N.W. 1.

Appeal from Circuit Court, St. Clair County, in Chancery; Fred W. George, Judge.

Argued before the Entire Bench.

J. Frank Wilson, of Port Huron, for defendant and appellant, Isabelle Fraser.

Benedict & Benedict, of Port Huron, for plaintiff and appellee.

BOYLES, Justice.

Defendant (appellant) Isabelle Fraser claims ownership of certain bonds, stocks and other securities by virtue of a gift inter vivos from her husband, Donald A. Fraser. The plaintiff herein is the daughter and only other heir-at-law of Donald A. Fraser now deceased, and files this bill in chancery seeking to compel Isabelle Fraser to turn these securities into the estate and inventory them as a part of the assets; to enjoin her from otherwise disposing of them; and for an accounting of the income therefrom. The only question in the case is, whether there was a gift inter vivos. The circuit judge who heard the case held that Isabelle Fraser had not proved ownership by a gift inter vivos and Isabelle Fraser appeals.

Isabelle Fraser was married to Donald A. Fraser sometime during the year 1930. At that time he was the owner of a considerable number of first mortgage bonds, trust certificates, depository receipts, and stock certificates in a Detroit mortgage bonding company. These are referred to in the testimony as his ‘Detroit holdings.’ Appellant attempted to prove by her own testimony that these securities were given to her by her husband and to show statements made to her by him to that effect. On objection, this was properly excluded as being equally within the knowledge of the deceased. Shepard v. Shepard, 164 Mich. 183, 129 N.W. 201. However, except for some minor discrepancies shown on cross-examination, the record discloses the following facts: Shortly after his marriage in 1930, Fraser told his wife's brother-in-law, Carroll Smith, that he (Fraser) had given his Detroit holdings, bonds and stocks, to his wife Bell. Fraser pointed out to the brother-in-law certain properties in Detroit, mentioning several properties by name, stating he had given them to his wife. These are included in the first mortgage bonds now claimed by her. On various occasions Fraser discussed the Detroit holdings with the brother-in-law, referring to them as belonging to his wife. Another witness (Mrs. Fraser's niece) testifiedshe had been present on numerous occasions when he discussed his Detroit holdings and that he frequently stated that he had given them to his wife or that they belonged to her. In fact, the circuit judge in his opinion indicated a belief that this testimony was ‘greatly over emphasized,’ assigning this as one reason for disregarding it. Most of this repetition, however, was brought out in direct answers on cross-examination and was not volunteer testimony by these witnesses. A disinterested witness, not related to the parties, testified that in May, 1935, she tried to sell Donald A. Fraser a bond, about two months before he died; that she and Fraser conversed together in a room in his house, that when he refused she asked him to buy the bond for his wife, that he left the room, came back with a package-a manilla envelope-handed it to her and said ‘These are Bell's,’ that ‘she did not need any more,’ and gave this reason for not buying the bond; that Fraser told her to look at the contents, that she untied the package and did so. She then returned the securities to the...