Hillebrands v. Nibbelink

• Court: Michigan Supreme Court
• Writing for the Court: Campbell, C. J.
• Citation: Hillebrands v. Nibbelink, 40 Mich. 646 (Mich. 1879)
• Decision Date: 24 April 1879
• Parties: Anneus Hillebrands, executor of Seth Nibbelink v. Henry Nibbelink

40 Mich. 646

Anneus Hillebrands, executor of Seth Nibbelink v. Henry Nibbelink

Supreme Court of Michigan

April 24, 1879

Submitted April 11, 1879; April 15, 1879

Error to Ottawa. Submitted April 11 and 15. Decided April 24.

Judgment reversed with costs and a new trial granted.

Edwin Baxter for plaintiff in error. If an agreement to convey is void under the statute of frauds, it cannot be the foundation of a claim for the value of the property, or evidence of indebtednes, Scott v. Bush, 26 Mich. 418; Chamberlain v. Dow, 10 Mich. 319; Hall v Soule, 11 Mich. 494; Grimes v. Van Vechten, 20 Mich. 410; Stevens v. Tuller, 4 Mich. 387; Comp. L §§ 4714, 4715; as to the liability of one's estate for a claim brought against it for money paid him by his son, see Updike v. Titus, 2 Beas. (N.J. Eq.), 151; Davison v. Davison, id., 246; Weir v. Weir, 3 B. Mon., 645; Bash v. Bash, 9 Penn. St., 260; Defrance v. Austin, id., 309; Zerbe v. Miller, 16 Pa. 488; Lynn v. Lynn, 29 Pa. 369; Duffey v. Duffey, 44 Pa. 399; Swires v. Parsons, 5 W. & S., 357; Candor's Appeal, id., 513; Shirley v. Vail, 38 How. Pr., 406; Andrus v. Foster, 17 Vt. 556; Fitch v. Peckham, 16 Vt. 150; Robinson v. Cushman, 2 Den. 149; Williams v. Hutchinson, 3 N.Y. 312; Bowen v. Bowen, 2 Bradf. 336; Dye v. Kerr, 15 Barb. 444; Cropsey v. Sweeney, 27 Barb. 310; Wilcox v. Wilcox, 48 Barb. 327; Kelly's Estate, 1 Tuck. 28; Cooper v. Turner, 2 Hun 515; Van Kuren v. Saxton, 3 Hun 547; Fisher v. Fisher, 5 Wis. 472; Kaye v. Crawford, 22 Wis. 320; Hall v. Finch, 29 Wis. 278; Pellage v. Pellage, 32 Wis. 136; a promise of a gift or legacy cannot be made a valid clain against an estate, Jones v. Tyler, 6 Mich. 364; Taylor v. Staples, 8 R.I. 170; Campbell v. Campbell, 21 Mich. 438; Willard v. Magoon, 30 Mich. 273; Osborn v. Guy's Hospital, 2 Strange 728; 2 Redf. on Wills, 232.

Angel & Soule and E. S. Eggleston for defendant in error.

Campbell, C. J. The other Justices concurred.

OPINION

Campbell, C. J.

Henry Nibbelink, the defendant in error, presented certain claims against the estate of his father, Seth Nibbelink, which were rejected by the commissioners, but allowed on appeal to the circuit court for Ottawa county, from which error is brought into this court. These claims consisted chiefly of earnings paid by Henry into the family stock, and services rendered to his father, and various outlays. The earliest items were for his wages in an establishment known as the Plugger Mills, in 1865, 1866, 1867 and 1868, alleged to have amounted to over $ 1,500. The claim filed averred this to have entered into an account stated in 1873, when it is claimed the decedent agreed to convey to Henry a farm known as his Vriesland farm, in Ottawa county--the parties living in Holland in the same county. This farm having been sold by Seth Nibbelink, a claim is set up for the proceeds,--set up as $ 3,600.

The other items claimed are money paid out for building a house, claimed at $ 1,090, and labor amounting to $ 75.

Henry lived with his father until some time in 1873, when by reason of disagreements between their wives he left, and a settlement was had which became somewhat important on the trial. A written instrument was executed by Henry, which as translated consists first of an acknowledgment of the receipt of two horses and their harness and appurtenances, one wagon and whatever belonged with it, one cow, one bed and its belongings, one bedstead, six chairs, one table, one stand, five pieces of pork, one piece of meat, one bag of corn, two bags of oats, one-half ton of hay, three cords of wood, six chickens, one rooster, two chains. These he acknowledged to have received for labor done up to that time. The witnesses testified that at the same time his father promised that he should have the Vriesland farm, but when he was to have it,--whether before or at his father's death, and whether it was wholly or only in part in recompense for his services and aid to his father--is not agreed upon or made very clear.

His brother Jacobus had obtained another farm, partly, at least, as a gift, and there was some testimony indicating that the farm to be given to Henry was also in part a donation.

The father died testate and gave Henry nothing but a nominal legacy.

Several questions are presented on the record and reference will be made to such as are material.

Testimony was introduced for the purpose of showing the earnings at the Plugger mills, and this was allowed to go to the jury as a cause of action. Objection was made to it as barred by the statute of limitations, and also that it was not covered by any proper averment in the declaration.

If properly declared on, it might possibly have been shown to have belonged to a series of open dealings which were not closed until within six years before the father's death. Carter v. Carter, 36 Mich. 207. It was claimed that all of Henry's earnings went into the hands of his father while they lived together, and it could not, until all the proofs were in, be known how far any such items, if proven, would be barred.

But under the claim made before the commissioners and the bill of particulars with which the declaration must be made to conform, it is doubtful whether this item can be regarded as averred as a ground of action. It is set up as resting in a mutual or open account which was settled in 1873. If it was set up as a single demand not reduced by mutual credits, it would very clearly have been barred. There is undoubtedly some ground for construing the claim in the probate court as embracing the whole amount of these earnings as having been unpaid, and merely liquidated in 1873, when it is alleged Seth promised to pay the debt by a conveyance of the Vriesland farm. A verbal promise in 1873 to pay this old debt, if not kept open by...