Durfee v. Abbott

• Decision Date: 10 June 1886
• Citation: 28 N.W. 521,61 Mich. 471
• Court: Michigan Supreme Court
• Parties: DURFEE v. ABBOTT and others.

28 N.W. 521

61 Mich. 471

DURFEE v. ABBOTT and others.

Supreme Court of Michigan

June 10, 1886

Error to Wayne.

Fraser & Gates, for plaintiff.

Alex. D. Fowler, for defendants and appellants.

CHAMPLIN, J.

This suit is brought upon a residuary legatee's bond to recover a legacy given by the last will and testament of John T. McKeown, deceased, to Kate Lantz. The case was before this court at the April term, 1883, and is reported in 50 Mich 479, and 15 N.W. 559. Sophia Lantz, who was one of the legatees for whose use the suit was then prosecuted, has since dropped out of the case as a party interested. Under the facts as they appeared in the record before the court she had no right to recover.

It appeared, as it now appears, that on October 20, 1877, the executor gave to these legatees his individual notes for the legacies, payable to them two years from that date, with interest. The legacies were payable when the notes were given, and they signed and gave to the executor receipts stating that they had received from the executor of the estate of John T. McKeown deceased, $250, being the legacy bequeathed to them respectively. It was held that, by this extension of the time of payment without the sureties' assent, they were discharged from liability. But it also appeared that Kate Lantz was not 21 years of age at the time the note to her was given, and therefore she stood in a different position; that she had no power to extend the time for payment, and she did not become of age until after the note given her became due, and unless she did some act, after she came of age, extending the time, or in some other way changing McKeown's liability, she is not barred of her action; and, inasmuch as the note in her hands was past due when she came of age, the time was not extended by her retaining the note, and that it should not be held as payment until so treated in fact.

It will readily be seen that the contest upon the retrial centered upon the question of the age of Kate Lantz. On the part of the plaintiff, Kate Lantz testified that she was born November 5, 1858, and that her full name is Catherine Sophia Barbara Lantz; that her father's name is Jacob Lantz, and her mother's Barbara Lantz; and that her parents lived on Clinton street, in Detroit, when she was born. Sophia Smith, a sister, testified that Kate was born in 1858. Caroline M. Lantz, another sister, testified that Kate was born in 1858, and that her birthday was November 5th. She stated that she had seen the entry in the family record made in the family Bible, and had last seen it seven or eight years ago; that the entry read, "Sophia Catherine Barbara Lantz, born 1858;" that the record of her own birth was entered there, and read, "Caroline Matilda Lantz, born in 1856;" and that the entry of the birth of Sophia read, "Sophia Catherine Lantz, 1849." Mrs. Barbara Lantz, the mother, was sworn for plaintiff, and testified that her age was 65, and was not able to remember the age of her daughters except the eldest; that they had a family record in the Bible, but her husband took it away with him, and she had not seen it since. She states that she was married in 1849, and four of her children were baptised on Clinton street, by the pastor of the German Lutheran Church on Monroe avenue; that Kate was baptised by the name of Catherine Sophia Barbara Lantz. She first stated that the minister's name was Herman who baptised all four of the children, but afterwards recalled the fact that one was baptised by a minister by the name of Miller, of the Monroe Avenue Church; that she was present when Kate was baptised, as was also Peter Lantz, his wife, Sophia Lantz, and Catherine Schelard. The defendants, on their part, produced Charles Haas, the pastor of the German Lutheran Church, who testified who were pastors of the church from 1852 to 1862, among whom was Rev. Mr. Miller. He also produced and proved the church records of baptism from 1852, and since, which record showed the "baptism of Catherine Sophia Barbara Lantz, daughter of Jacob and Barbara Lantz, born the eighteenth day of November, 1856, and baptised the fifteenth day of March, 1857. The witnesses were Sophia Lantz, Catherine Schelard, and Peter Lantz." This entry the witness testified was in the handwriting of Herman Miller, who was pastor of the church at that time. The entry appears in the regular order of dates. One date follows another in regular order, and the entries are numbered consecutively, and the number of the entry read was No. 28, and appears under date of March 15, 1857; the prior date being March 8, and the subsequent date being March 19, 1857. The witness testified that these records belong to the church, and that he has been its pastor since 1862. There was some evidence introduced showing what Kate Lantz and Sophia, her sister, testified about Kate's age upon that trial, to the effect that she was born in November, 1857.

This record respecting the baptism of Catherine Sophia Barbara Lantz was admitted in evidence without objection. It is too late now for counsel for plaintiff to claim that it was incompetent evidence, or that it was necessary to show that Mr. Miller was dead before it could be received. It was necessary, however, that the defendant should prove the identity of the person baptised as Catherine Sophia Barbara Lantz with the legatee known as Kate Lantz, and it was necessary for the jury to be convinced of that fact. It was therefore error for the court to refuse to submit to the jury the special question, as follows: "Is the 'Catherine Sophia Barbara Lantz' named in the records of baptism produced by Rev. Charles Haas, as having been 'born November 18, 1856, and baptised on March 15, 1857,' the same...