In re King's Estate

• Decision Date: 21 July 1896
• Parties: IN RE KING'S ESTATE. v. BATES. DOTY
• Court: Michigan Supreme Court

68 N.W. 154

110 Mich. 203

IN RE KING'S ESTATE.

DOTY v. BATES.

Supreme Court of Michigan

July 21, 1896

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Rachel L. Doty filed a claim against the estate of Adeline King deceased, for services as executrix, which was contested by George W. Bates; and, being disallowed, the case was appealed to the circuit court, where judgment was rendered against claimant, who again brings error. Reversed.

Ervin Palmer, for appellant.

Otto Kirchner, for appellee.

MONTGOMERY, J.

The appellant was named as executrix of the last will and testament of deceased. The will was offered for, and admitted to, probate. Mrs. Doty qualified as executrix, and gave a bond and entered upon the discharge of her duties as such. An appeal from the probate of the will was taken, and two trials had in the circuit; a judgment denying probate of the will having been reversed by this court, and the case remanded for another trial. The order admitting the will to probate was finally entered by the circuit court on the 19th day of March, 1895. On the 11th day of April, 1895, Mrs. Doty filed a claim for an allowance to her for services as executrix, containing, among other items charges as follows: "April 2, 1894. To services as executrix, 59 days, during the year from April 1, 1893, to date, looking after witnesses, & c., $295.00. May 23, 1894. To services as executrix from and including April 3, 1894, to date, 35 days, attending trial in the circuit court assisting in the procuring of witnesses, and in the preparation and carrying on of the case. $350.00. For extraordinary services,-for responsibility and services in and about the preparation, hunting for witnesses and hunting up testimony, and assisting in the preparation of the second trial in the matter of probating the will of deceased in the circuit court for the county of Wayne,-$1,000.00. Rachel L Doty." This claim was disallowed, the case appealed to the circuit court, and the cause was tried before Hon. J. W. Donovan, circuit judge, with a jury. Before the jury was impaneled, counsel for the appellant objected to the impaneling of a jury on the ground that it appeared that the claim was for extraordinary services, and that, therefore, the allowance was within the discretion of the probate judge in the first instance, and of the circuit judge on appeal. The case was, however, tried by a jury; but a verdict was directed by the circuit judge in favor of the estate, and subsequently a written finding of facts filed. The claimant, on the trial, offered evidence showing the rendition of the services in question, and some evidence as to value; and the defendant also offered certain oral testimony, which it will not be necessary to advert to, as counsel are now agreed that the case turns upon the construction of a certain written agreement, and upon certain other legal questions which are raised. Mrs. Doty was named as one of the legatees in the will, and it appears that on the 20th of June, 1892, an agreement was made between her and George W. Bates, who is interested in the estate, by which she and others assigned to him an interest in the estate, for a consideration paid to her; and it is contended that, by the terms of this agreement, Mrs. Doty assigned her right to compensation for services to be thereafter performed on behalf of the estate. The agreement is in two parts, and reads as follows:

"We, the undersigned, for valuable consideration to us in hand paid, the receipt whereof is hereby confessed and acknowledged, do hereby jointly and severally sell, assign, transfer, and set over to and unto George W. Bates, of Detroit, Michigan, all claim or claims which we or any of us now have or claim to have, or which we or any of us may hereafter have or claim to have, against the estate of Adeline King, late of Detroit, deceased, whether for or on account of moneys paid by us or either of us, or that may hereafter be paid out by us or either of us, or for or on account of services of any kind rendered by us or either of us, or for us or either of us, by any person or persons, in aid of the probate of the alleged will of Adeline King, late of Detroit, deceased. Detroit, June 20th, A. D. 1892. Louise K. Roney. Rachel L. Doty. Edmund K. Doty. Hoyt Post. John Atkinson. D. W. King.

"For a like consideration to us in hand paid the receipt whereof we do hereby confess and acknowledge, we do also assign, sell, and set over to and unto George W. Bates, all right, title, and interest which we or either of us now have in, to, and out of the estate of ...