Hooker v. Axford

• Decision Date: 11 April 1876
• Citation: 33 Mich. 453
• Court: Michigan Supreme Court
• Parties: Cortez P. Hooker v. Livingston Axford and another

33 Mich. 453

Cortez P. Hooker v. Livingston Axford and another

Supreme Court of Michigan

April 11, 1876

Heard January 6, 1876; January 7, 1876

Appeal in Chancery from Macomb Circuit.

Decree of the court modified in part and affirmed in part. Defendant Axford entitled to costs on this appeal.

E. W Meddaugh and Giles Hubbard, for complainant.

A. C Baldwin and G. V. N. Lothrop, for defendant Axford.

OPINION

Cooley, Ch. J.

The case of the complainant is, that in the month of August, 1861, his wife, Margaret, who was the owner of a large amount of real estate, being desirous of devising the same to him, but having in mind certain pecuniary transactions which might cause him serious difficulty, sent him to consult the defendant Crocker as to the proper method of securing her property to complainant without the risk of its being seized by others, and that under Crocker's advice the property was all devised to the defendants on an oral understanding that they should hold the same for complainant's use. The wife died in the following month, the will was duly probated, and the title to the property has ever since remained in the defendants, but with constant recognition of the understanding which has been mentioned, until very recently, when defendant Axford, who was nephew to Mrs. Hooker, set up a claim to half the property as his own. Meanwhile complainant has constantly occupied the property as owner, made improvements, and paid off incumbrances, and he has also purchased other lands the title to which he has caused to be conveyed to the defendants on the understanding that they also were to be held for him. And the bill is filed to compel them to convey to him as well the lands devised by the wife as those subsequently purchased.

The defendant Crocker admits the whole case made by the bill, and is ready to tender a conveyance. This relieves the case from any difficulty so far as he is concerned. Mr. Crocker appears to have acted in entire good faith, and no question is made of his readiness at all times to acknowledge complainant's rights.

The defendant Axford expresses entire ignorance regarding the intent and purpose of Mrs. Hooker in devising the lands as she did, and puts the complainant to his proof; and it is upon this part of the case that the difficulties arise. Axford holds the legal title to one-half the land by a devise explicit in its terms, and which on its face fails to indicate that any third person was to be the object of the testator's bounty. No charge of fraud is made against Axford, and the evidence all tends to show that he was entirely passive at the time the will was executed, and had nothing whatever to do in procuring it. What the complainant seeks to do, therefore, is to control the devise by parol evidence, and to give the testator's bounty a direction wholly different from that given by the will itself.

If there were clear and distinct evidence, other than that of the complainant himself, that his wife intended to make him the object of her bounty, I should think the case relieved of one great difficulty. But there is no such evidence. The complainant was the medium of her communications with Crocker, and it is from his statements at the time, and from his testimony now, that we are to gather what her wishes and intentions were. I cannot avoid thinking that this is a very dangerous species of evidence to act upon when the question is whether we shall upon the strength of it change the apparent intent...