Everett v. Everett

• Decision Date: 03 December 1947
• Docket Number: No. 40.,40.
• Citation: 319 Mich. 475,29 N.W.2d 919
• Parties: EVERETT et al. v. EVERETT et ux.
• Court: Michigan Supreme Court

319 Mich. 475

29 N.W.2d 919

EVERETT et al.

v.EVERETT et ux.

No. 40.

Supreme Court of Michigan.

Dec. 3, 1947.

Action by George Everett and others against Mathew L. Everett and Ruth I. Everett, his wife, to set aside an agreement, deed, and transfer of personal property. A decree dismissing the case with prejudice and costs was entered. From an order denying motion for rehearing, the plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; Sherman D. Callender, Judge.

Before the Entire Bench.

Walter M. Nelson, of Detroit, for plaintiffs and appellants.

Voorhies, Long, Ryan & McNair, of Detroit (R. Gerveys Grylls, of Detroit, of counsel), for defendants and appellees.

BUTZEL, Justice.

On April 30, 1942, Ed. Everett, a widower, at the age of 87, for the stated purpose of dividing his property among his children and for assuring to himself a home and support for the rest of his life, entered into a written contract with his son and daughter-in-law, Mathew L. and Ruth I. Everett, defendants herein, whereunder, in consideration of their promises to support and maintain him for the remainder of his life and to pay his burial expenses, he conveyed to them his farm and all his personal property thereon. One of the considerations for the conveyance of the farm and for the contract was the deposit by Mathew L. and Ruth I. Everett of the sum of three thousand dollars to the credit of George Everett, Frank Everett, and Genevieve Wilson in joint bank money orders. The latter are the other sons and daughter of the said Ed. Everett and are the plaintiffs herein.

Defendants Mathew L. and Ruth I. Everett had come to live with the old gentleman on his farm several years prior to the date of the agreement, and continued to reside with him during the four years he lived after the execution of the agreement.

Shortly after the death of Ed. Everett in May, 1946, plaintiffs filed a bill of complaint seeking to have the agreement, deed and transfer of the personal property set aside on the ground that decedent was mentally incompetent at the time of the execution of the agreement and incapable of understanding the nature of the transactions he had entered into, and further that defendants were guilty of fraud, undue influence and coercion.

Defendants filed an answer in which they denied that defendant was mentally incompetent or incapacitated at the time the agreement was made, but on the contrary they asserted that he had obtained an attorney of his own selection to prepare the agreement, deed, and bill of sale in the absence of defendants. Defendants also denied the charges of fraud, undue influence and coercion. Other defenses claimed are not material to the question presented on this appeal.

At the pretrial hearing, the issues were narrowed to those of fraud, undue influence and mental incompetency. At the hearing proper plaintiffs were represented by the same counsel who had prepared their bill of complaint, and defendants were ably represented by their present counsel. Plaintiffs' counsel immediately asked leave to amend the bill of complaint so as to include an allegation that defendants had not lived up to and fulfilled their promises under the agreement to provide proper care, medical attention, and food to the deceased. Leave was granted, the amendment was filed, and defendant promptly answered denying the new allegation.

Upon proceeding to put in their proofs, plaintiffs at once ran into difficulty. In the direct examination of one of the plaintiffs, the first witness, defendants' counsel, by objection, invoked the so-called ‘Dead Man's Statute,’ 3 Comp.Laws 1929, § 14219, Stat.Ann. § 27.914, to bar testimony of the witness as to matters equally within the knowledge of the deceased. The objection was sustained after argument in which defendants' counsel cited Luce v. Luce, 197 mich. 465, 163 N.W. 904, a case which in some respects resembles the instant case, as authority for his position. Similar objection was made to the testimony of other plaintiffs.

There can be no doubt but that the statute applies to controversies, such as this one, arising out of the disposition of property by a decedent (Luce v. Luce, 197 Mich. 465, 163 N.W. 904;Shepard v. Shepard, 164 Mich. 183, 129 N.W. 201;Loomis v. Loomis, 178 Mich. 221, 144 N.W. 552;Beadle v. Anderson, 158 Mich. 483, 123 N.W. 8), and that if plaintiffs were unable to produce witnesses other than themselves to substantiate their claims, they probably would not be able to prove their allegations.

In the course of the trial, plaintiffs' counsel attempted to show the terms of the agreement and deed in controversy, without introducing the originals. Defendants' counsel objected on the ground that the originals were the best evidence and should be produced. The objection was sustained, and plaintiffs' counsel, who did not have possession of the originals, stated he would endeavor to produce them the next day.

Thus, plaintiffs were unable to make any headway whatsoever on the first day of the trial. After it had been in progress less than an hour, it was necessary to continue the case to the next day. Defendants objected to the continuance, but the judge granted it, stating he thought it would be unreasonable to cut plaintiffs off without an opportunity to produce other witnesses.

The following day, at the opening of court, plaintiffs' attorney stated on the record that his clients would consent to a decree dismissing the case with prejudice and costs. A written stipulation was entered into to that effect and decree was entered.

Twelve days later, plaintiffs' present counsel, Walter M. Nelson, entered his appearance on their behalf. He contemporaneously filed a motion for a new trial for the following reasons: that the former proceedings did not amount to a trial; that the merits of the controversy were not put in evidence, tried or heard; that the disparity in the ability of the counsel for the respective parties was so great that the hearing did not amount to a trial of the issues of law and fact; that documents relative to the transaction were not placed or received in evidence; that witnesses having knowledge of the facts were not sworn or heard; that plaintiffs' former counsel was wholly incompetent and unprepared to try the case; that the incapacity and unpreparedness of plaintiffs' former counsel was so complete as to deprive plaintiffs of a proper hearing; that plaintiffs were deprived of a trial of their rights through no fault of their own, as they were not experienced in matters of litigation; and that injustice would result unless a rehearing was granted, all without intent on the part of opposing counsel or apparent error on the part of the trial court.

Plaintiffs' former attorney thereupon filed an affidavit in opposition to the attack made on him in the motion for new trial. In the affidavit he stated that at no time had there been any consent on his part to a substitution of attorneys; that in preparation for the trial he had interviewed every person suggested by plaintiffs as possible witnesses, and also other persons; that none of them could testify to any facts supporting the bill of complaint; that prior to the trial he advised plaintiffs they could not succeed unless they could produce other witnesses than themselves or could obtain a waiver of the rule which barred plaintiffs from testifying as to matters equally within the knowledge of the deceased. He further stated that when, after the first day of the hearing, it appeared that defendants would not waive the rule, he advised plaintiffs it was useless to proceed, and that it would be best to dismiss the case before other expenses were incurred; that a meeting was arranged at his office for decision of whether the case should be dismissed or not; that Frank Everett, one of the plaintiffs, advised deponent that owing to weather conditions the plaintiffs would not keep the appointment, but that it was agreed by them that the case should be dismissed; that deponent attempted to obtain consent of defendants' counsel...