Domzalski v. Domzalski

• Decision Date: 05 October 1942
• Docket Number: No. 19.,19.
• Citation: 5 N.W.2d 672,303 Mich. 103
• Parties: DOMZALSKI et al. v. DOMZALSKI et ux.
• Court: Michigan Supreme Court

303 Mich. 103

5 N.W.2d 672

DOMZALSKI et al.

v.DOMZALSKI et ux.

No. 19.

Supreme Court of Michigan.

Oct. 5, 1942.

Suit by Thaddeus Victor Domzalski, one of the executors of the estate of Michael Domzalski, deceased, and others, against Wladislaus Henry Domzalski and Mary Domzalski, his wife, to construe deceased's will with reference to deducting from firstnamed defendant's share of the residue certain indebtedness allegedly owing by him to deceased, for an accounting of the sum, and for specific enforcement of a certain instrument acknowledging such indebtedness, wherein defendants filed a cross-bill asking that such instrument be declared void and that they be decreed the owners in fee simple of certain realty referred to therein and for payment of the sum found due first named defendant under terms of the will.From an adverse decree, defendants appeal.

Decree affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; George B. Murphy, Judge.

Before the Entire Bench.

Riseman, Lemke & Piotrowski, of Detroit, for defendants and appellants.

Stanley J. Domzalski, of Detroit, for plaintiffs and appellees.

BOYLES, Justice.

Plaintiffs, as executor, devisees and legatees under the will of one Michael Domzalski, deceased, filed this bill of complaint against Wladislaus Henry Domzalski(hereafter referred to as Walter Domzalski), son of said testator, and his wife to construe the will of Michael Domzalski with reference to deducting from Walter Domzalski's share of the residue of said estate certain indebtedness alleged to be owing by him to Michael Domzalski; for an accounting of the same; and for specific enforcement of a certain instrument signed by Walter Domzalski acknowledging such indebtedness (hereafter referred to as exhibit 7).Walter Domzalski and wife answered and filed a cross bill asking that said instrument (exhibit 7) be declared null and void, that they be decreed the owners in fee simple of certain real estate referred to therein, and that the executors of the estate be directed to pay Walter Domzalski such sums as might be found due him under the terms of the will.The court below, after hearing, decreed that Michael Domzalski during his lifetime had advanced $12,700 to the defendants, that said indebtedness with accumulations of unpaid interest and taxes amounted on June 18, 1938, to $19,071.79, which sum should be deducted from the distributive share of Walter Domzalski under the will.From this decree, defendants appeal.

Defendants claim at the outset that the bill of complaint is solely for a money decree wherefore plaintiffs have an adequate remedy at law.The bill involves in some degree the construction of a will, an accounting, and either the specific enforcement or the cancellation of a written instrument.The relief sought by defendants under their cross bill brings the case within the jurisdiction of court of equity.Equity, having jurisdiction, will retain the case for the purpose of granting complete relief.

On February 28, 1935, Michael Domzalski executed a will devising and bequeathing in seven equal shares the residue and remainder of his estate (after certain specific legacies) to his six living children, together with an equal share to two minor children of a deceased daughter.Walter Domzalski is one of said residuary legatees.Michael Domzalski died June 14, 1939, and his will has since been admitted to probate.It contains the following provisions:

‘Inasmuch as all of my living children are indebted to me in various amounts at the date hereof, the amount of such indebtedness shall be added to the total valuation of my estate, which then shall be divided into seven (7) equal shares or portions, one such share or portion for each of my six living children, and the seventh share or portion to be equally divided between the two granddaughters, Joan Pawlowski and Genevieve Pawlowski, minor daughters of my deceased daughter, E. Stanislaws Pawlowski.

* * *

‘The indebtedness of each child due me at the time of my death, shall be deducted from the share of portion of such child, but in the event that the amount of such individual indebtedness of any one of my said children to my estate shall exceed the amount of the share or portion that such child shall be entitled to under the provisions hereof, then, in that event, such child shall pay the difference between his or her bequest and his or her indebtedness to my estate to the executors of this my last will and testament, and such amount shall be equally divided between all my living children.'

In September, 1929, Walter Domzalski had applied to his father, Michael, for financial help to erect a home on two lots in Detroit which he and his wife were buying on land contract.Michael Domzalski advanced $12,700 to the defendants at that time, taking title to the two lots in his own name and entering into an executory land contract as vendor with the defendants as vendees providing for payment in installments, with interest, over a five-year period.Defendants failed to make the payments.Taxes accrued which were paid by Michael and added to the land contract, along with accrued interest.Michael kept careful and accurate ledger accounts of his business transactions and his books showed a balance due him from defendants on January 1, 1933, of $15,368.84.Subsequently Michael paid some taxes on the property.In April, 1938, Michael Domzalski demanded payment from the defendants of the balance due him under the contract, stating that the accumulated principal, interest and taxes amounted to $22,000.To aid in securing payment he assigned his vendor's interest in the contract to his son Thaddeus.Family conferences followed and Thaddeus reassignedthe contract vendor's interest to his father; and the defendants herein also assigned their vendees' interest in said property to Michael Domzalski.The conclusion reached by Michael Domzalski was to convey the house and lot to defendants herein but retain the adjacent vacant lot, on the understanding that defendants' indebtedness to him would be held against them and deducted from Walter's share of his estate at his death.Three of Michael's sons, all of them attorneys, were instructed to prepare such an agreement, and finally on June 18, 1938, Michael Domzalski executed and delivered to Walter a deed of the house and lot referred to, and the defendants herein signed, acknowledged, and delivered to Michael Domzalski an instrument in writing (exhibit 7), which is now relied upon by plaintiffs as evidencing an intention to consider the indebtedness of defendants as an advancement to be deducted from Walter's share in his father's estate.This instrument, after reciting that defendants herein were on that date indebted to Michael Domzalski(in an unnamed amount), ‘which said indebtedness is hereby confessed and acknowledged by the parties of the second part,’ and that said indebtedness arose by virtue of the money advanced by Michael in constructing the residence heretofore referred to, and in payment of taxes and accumulations of interest, and after further reciting that defendants had assigned all their right, title and interest in the land contract to Michael Domzalski and that Michael had deeded to the defendants the house and one lot, then provided: ‘It is further mutually agreed that for and in consideration of the cancellation of the indebtedness as aforesaid and of the conveyance hereinbefore set forth, the said Walter H. Domzalski, of the second part, for himself, his heirs, executors, administrators and assigns, does by these...