Green v. Begole

• Citation: 70 Mich. 602,38 N.W. 595
• Court: Michigan Supreme Court
• Decision Date: 15 June 1888
• Parties: GREEN v. BEGOLE.

38 N.W. 595

70 Mich. 602

GREEN v. BEGOLE.

Supreme Court of Michigan

June 15, 1888

Appeal from circuit court, Genesee county, in chancery; WILLIAM NEWTON, Judge.

Suit by Louisa A. Green against Josiah W. Begole to declare a parol trust in favor of plaintiff in certain real estate. The circuit court dismissed plaintiff's bill, and she appealed.

W C. Green, (J. E. Simonson of counsel,) for appellant.

Geo. R. Gold, for appellee.

CHAMPLIN, J.

The bill of complaint is filed in this case to enforce the specific performance of an agreement alleged to have been made between defendant and his son Frank C. Begole. Frank C Begole died in Florida on the 1st day of April, 1877, leaving a wife, the complainant in this suit, and two children surviving him. He owned real estate in Witchita, Kan.; also in Wisconsin and Michigan. The complainant alleges that her husband, Frank C. Begole, desired and intended, at the time of his last illness, to leave and give all of his said real estate to her, in consideration of the love and affection he bore for her, and to provide for her maintenance and support and to enable her to bring up and educate their surviving children, as well as to recompense her in some degree for the hardships and privations to which she had been subjected during the period of their married life; that having full and entire confidence in the honor and integrity of the defendant, and being aware that he could live but a very short time, and the defendant, being advised of the intention and desire of her said husband, told him that such deed directly from husband to wife would not be valid under the laws of Wisconsin, "he then and there, at the request of the defendant, deeded and conveyed said lands in Wisconsin and Michigan to said defendant, under and in pursuance of the express understanding and agreement by and between said defendant and said Frank C. Begole, then and there made and entered into, that he, said defendant, in consideration of the premises, would faithfully execute and complete said contract, and as soon as practicable thereafter convey said lands to your oratrix, and vest her with the legal title thereto." The defendant answered, denying such contract, and denying any agreement to convey such lands to complainant. He admits that his son, in his last illness, just prior to his death, executed a deed to him, conveying to him the title of his lands in Wisconsin and Michigan; but he says it was so conveyed to him in trust to hold for the use and benefit of the children then living of said Frank C. Begole. The testimony was taken in open court as upon a trial at law, and the only witness to prove the contract alleged in the bill of complaint was the complainant herself. Facts and circumstances were introduced by complainant, which it is claimed by counsel for complainant tend to corroborate her statements. The contract which she seeks to enforce she claims was made in Florida just prior to her husband's death. The only evidence of such contract is the testimony of complainant, in which she states the contents of a letter which she says she destroyed a short time previous to her marriage with her present husband, and some admissions which she testifies defendant made to her she thinks in the presence of Mrs. Begole, the defendant's wife. Complainant testifies that her husband and herself, with their family, resided at Witchita, Kan., where he owned nine or ten acres of land; that while her husband was in Florida, whither he had gone for his health, she received a letter from the defendant, who was with his son in Florida, stating that her husband could not live, and that he wished to put all his property in her hands, as he wanted to save the expense of administration, and he trusted everything to her, and defendant wanted she should get a deed of the Witchita property, and send it to him, and he would send and get a deed of the Wisconsin property and the Michigan property,-especially the Wisconsin he mentioned,-and have the deed made out to her; that, after she received the letter, she did have drawn up a deed of the Witchita property, and forwarded it to defendant in Florida, and it was executed by her husband, Frank C. Begole, and was afterwards delivered to her. She further testified that, after the death of her husband, she, at the request of the defendant, came, with her family, which consisted of two boys, to reside in the defendant's family at Flint, Genesee county, in this state, and she resided in his family, and was treated as a daughter by the defendant, until her second marriage, which occurred in 1880. That she came to reside with defendant some time in June, 1877, and some time after her arrival, and during the summer some time, she had a conversation with defendant about the Wisconsin lands, in which "he said he found, in trying to make a deed according to the laws of Wisconsin, a man could not deed lands directly to his wife; he would have to deed them to her through a third person; so they were deeded to him to be deeded to me. I don't remember of his saying anything about the lands in Genesee county." This is all the testimony in the case respecting the terms of the contract set out in the bill of complaint. Patents and title deeds were introduced in evidence, showing that the title to the lands in controversy was in Frank C. Begole, and the deeds executed by him in Florida, one conveying 160 acres of land in Michigan, and the other the Wisconsin lands, of about 1,000 acres, to defendant, Josiah W. Begole. The deeds were absolute in form, and contained no trusts expressed upon their face. Eighty acres of the one hundred and sixty acres in Michigan had been sold under a land contract by Frank C. Begole in his life-time, and $200 remained unpaid upon it. The balance of the Michigan land was sold under land contracts by defendant after Frank C. Begole's death, and prior to the complainant's second marriage. These contracts were made between the defendant and the purchaser, and the purchase money was payable to defendant. The complainant received $5,000 life insurance, $700 of which was used by her consent in paying a note which she had given to some person in Wichita, and the expenses of the last sickness and funeral expenses of her husband, $300 she reserved for her own use, and the balance of $4,000 she loaned to defendant, and took his note therefor, with interest. There was some other personal property belonging to the estate of her deceased husband, of which complainant received her share. She testifies that defendant managed all her property and business for her, and paid over to her from time to time the moneys which he received upon the land contracts before spoken of, and told her that the contracts...