In re Getchell's Estate

• Decision Date: 10 December 1940
• Docket Number: No. 46.,46.
• Parties: In re GETCHELL'S ESTATE.
• Court: Michigan Supreme Court

295 Mich. 681

295 N.W. 360

In re GETCHELL'S ESTATE.

No. 46.

Supreme Court of Michigan.

Dec. 10, 1940.

Proceeding in the matter of the estate of Ella Getchell, deceased. From a decree allowing the last will and testament of the deceased, a grandson and granddaughter appeal.

Affirmed.Appeal from Circuit Court, Lapeer County; George W. Sample, judge.

Argued before the Entire Bench.

Gerald J. Cotter and Ray D. Markel, both of Mt. Pleasant (Worcester & Worcester, of Big Rapids, of counsel), for appellants.

George W. DesJardins, of Lapeer, for appellee.

BUSHNELL, Chief Justice.

This is an appeal from the allowance of the last will and testament of Ella Getchell. Contestants are a grandson and granddaughter of the testatrix. The beneficiaries under the will are Charles L. Scoutten, a brother of testatrix, Effie Tinker, a sister, who is the residuary legatee, and the contestants, as the heirs of their deceased father, Walter Getchell. Mrs. Getchell executed the will on February 26, 1936, and died on August 6, 1938, at the age of 80.

The issue of mental incompetency and undue influence raised by contestants and decided adversely to them by the circuit judge, sitting without a jury, are renewed on appeal.

The testatrix and her husband, the late Dr. Albert T. Getchell of Mt. Pleasant, made a separation agreement in 1922. She remained at their home in Mt. Pleasant until 1932, after which she lived with her son Walter and his family on a farm nearby for a short while, and then moved with them to Detroit, where she owned an apartment house. In 1935, Mrs. Getchell went to Lapeer, where she lived until her death with her sister, Mrs., Effie Tinker, the residuary legatee.

The testimony produced by contestants may be summarized as follows: A letter from Effie to Walter in 1934, and her conversation regarding Mrs. Getchell's poor memory and mentality; the fact that Effie wrote many business letters for testatrix, signed Mrs. Getchell's name thereto, and took care of her books of account; statements that Mrs. Getchell could not handle her business affairs and did not know her way around Mt. Pleasant, where she had lived for over 50 years; and her confusion as to certain matters pertaining to her property. Some witnesses said she failed to recognize friends of old standing, attempted to sell property that she had deeded to others, and claimed ownership of certain personal effects that were not her own. A physician, who performed an autopsy, testified that Mrs. Getchell had hardening of the arteries and that hardening of arteries may produce senile dementia. Emphasis is placed upon circumstances surrounding a guardianship petition filed by Walter in Isabella county in 1935. Contestants claim that the attorney who drew the will agreed that, if the Isabella proceedings were discontinued, steps would be taken to have a guardian appointed for Mrs. Getchell in Lapeer county. Such an agreement was denied by the attorney in question.

As to undue influence, contestants produced testimony to show that the testatrix had been dominated by Effie Tinker since 1935, this domination resulting in a series of transfers of real and personal property from the testatrix to Effie, including the one litigated in Getchell v. Tinker, 291 Mich. 267, 289 N.W. 156.

Proponents, on the question of competency, produced certain letters and the diary of testatrix in her own handwriting. One of these, Exhibit ‘Q’, reads in part as follows: ‘February 26, 1936. (Date line written over in ink) Went to Mr. Smith's office and made my will. My Dorchester apartment in Detroit and my South Main Street home I willed to Walter. My oil royalties I willed to my brother Charley. These royalties I bought with my Strauss bonds which amounted to Fifty-three hundred dollars. The remainder of my bonds I willed to my sister, Mrs. Effie Tinker, and my personal property which comprises my clothing, jewelry, personal belongings, also I gave to my sister what money I may have in the bank. I paid Mr. Smith for making my will five dollars.’

In order to refute the claim that undue influence was exerted by Effie Tinker, testimony was introduced that Walter had unsuccessfully attempted to get his mother to execute a power of attorney, authorizing him to sell any of her real estate. She did, however, give him power to manage her property and collect her rents. Becoming dissatisfied with his accounting, she caused a letter to be written to him offering him all the rentals of her apartment house if he would give her $25 per month. Upon his refusal to make a satisfactory arrangement, Mrs. Getchell brought a suit to cancel the agency agreement. This suit was settled by an agreement whereby Walter gave up his contract with his mother and transferred the management of her property to another.

The general rule as to competency is stated in Re Walker's Estate, 270 Mich. 33, 258 N.W. 206, 207, as follows: ‘In general the requisite is that the testator must at the time of making his will have sufficient mentality to enable him to know what property he possesses and of which ...