Dunlap v. Dunlap

• Decision Date: 03 December 1892
• Citation: 94 Mich. 11,53 N.W. 788
• Court: Michigan Supreme Court
• Parties: DUNLAP et al. v. DUNLAP.

53 N.W. 788

94 Mich. 11

DUNLAP et al. v. DUNLAP.

Supreme Court of Michigan

December 3, 1892

Error to circuit court, Clinton county; SHERMAN B. DABOLL, Judge.

Proceeding by Joseph Dunlap and others against Jane Dunlap administratrix, in the settlement of the estate of Gordon Dunlap, deceased. From a judgment affirming a decree of the probate court allowing the final account of defendant administratrix, plaintiffs bring error. Affirmed.

John H. Fedewa and Edwin H. Lyon, for appellants.

High & Walbridge, for appellee.

MCGRATH C.J.

This is an appeal by heirs from an order allowing the final account of the administratrix, who is the widow of decedent. George Dunlap died August 20, 1889, without issue. He left a large amount of personal property other than the notes in controversy. The disputed question is as to whether certain notes, aggregating some $18,000, held by the widow, and claimed by her as a gift from her husband during his lifetime, should be inventoried and treated as a part of the estate, and accounted for by her as administratrix. At the hearing in the probate court the heirs called the widow as a witness, and examined her fully as to the circumstances of the gift to her, and, among other things, she was asked to make out a detailed list of all the notes given to her by her husband, with the date of each, the time, the name of payee name of maker, place of payment, amount, rate of interest, indorsements of payments, and the history of each note, and furnish the same, which she did. The list was headed, "Memorandum of Notes belonging to Jane Dunlap, given to her by Gordon Dunlap," and the notes ranged from $5 up to $600. The probate court allowed her account, refusing to treat the said notes as the property of the estate. The heirs appealed to the circuit, and the issue was there narrowed to a question of gift or no gift. On the trial in the circuit court the heirs again called the widow as a witness, who testified as follows: "I made application for the administration of my husband's estate on the 11th day of September following his death. A few days after my return I was at Joseph Harris' house in Ovid, and had a conversation with him and Mrs. Harris, relating to some notes that I told him Mr. Dunlap had given me more than a year before his death, and he told me what to do with them. Question. What notes did you refer to? Answer. He had a pocketbook of notes. Q. A pocketbook of $18,000 of notes? A. Yes, or thereabouts. Q. You say you told him your husband had given you these notes more than a year before his death? A. Yes, sir. Q. What else did you say about it? A. I asked him what he thought about it. He said he didn't know; and I said I was going to know,-was going to find out. I said nothing further to Mr. and Mrs. Harris. This paper shown me, marked 'Exhibit 3,' is a list of the notes making up the $18,000 or such a matter of notes that I had reference to in my talk with Mr. Harris. The list was made out under my direction. Q. I call your attention to the headings of the columns, and ask you whether or not these headings represent the various essentials or parts of the notes that they purport to represent. A. It represents the notes. Q. You don't understand me. Take the first column, headed 'Date of Note,' and state whether or not that is a statement of the dates of the notes at the time you furnished the list. A. Yes, sir. Q. And this list that you have now identified was a list, was it not, of all the notes in your possession at that time that originally made up this $18,000 of notes, or notes purchased with the proceeds, or the money paid upon the original $18,000 of notes? A. Yes, sir. Q. Is it not a fact, Mrs. Dunlap, that you said to Mr. Harris, 'Suppose that a man should turn over to his wife a bundle of notes, whether or not that would constitute a good gift?' A. I don't think I put it that way. Q. Then, how did you put it? A. I told him Mr. Dunlap had given them to me, and he told me to give so much to one and so much to the other. Q. You are sure, now, that you said to him on that occasion, there in the presence of Mrs. Harris, that your husband had given you those notes something over a year before his death? A. Yes. In the spring of 1890, some time, I saw Mr. Van Vleet at my residence in the village of Ovid. He broached the subject of these notes, and told me he was interested in the estate in behalf of some of the heirs. He asked me if I was willing to show him the notes, and I told him: 'No, sir; I didn't have to. When the judge of probate called for them they were ready.' Q. What did you say to him about your control of the notes? A. He wanted to know what I did with the money, and I told him I had deposited it as a separate matter of my own,-of my personal property; and I was to give Joseph $7,000 of this money, and Elon $3,000, and the balance was mine. Q. When did you tell him you would pay it to Joseph and Elon? A. I was not to pay it until it was collected. I was not to pay it as fast as it was collected, but I was to pay it when I got the amount. Q. Got what amount? A. When it was all collected. Q. What amount? A. Eighteen thousand dollars. Q. When you got the whole of the notes? A. Yes, sir. I didn't have to pay it to them until after Mr. Dunlap's death. Q. Is that what you told him, or are you telling something else? A. That is what I told him. Q. You told him you didn't have to pay it to them until after Mr. Dunlap's death? A. No, I did not have to. Q. Did you say you didn't have to until after Mr. Dunlap's death? A. No; not until I settled up the estate. Q. When did you tell him that,-the first time or the second? A. I don't know. Q. Did you tell him anything further, with reference to the notes, upon either of these occasions? A. I think not. Q. Have you those notes with you, Mrs. Dunlap, making up the $18,000 of notes, or the notes purchased with their proceeds? A. Yes, sir. Q. I wish you would produce them. (Witness...