In re Kipp's Estate

• Decision Date: 14 October 1886
• Citation: 29 N.W. 517,63 Mich. 79
• Parties: In re Estate of KIPP, Deceased. Appeal of KIPP, EX'X, etc.
• Court: Michigan Supreme Court

29 N.W. 517

63 Mich. 79

In re Estate of KIPP, Deceased. Appeal of KIPP, EX'X, etc.

Supreme Court of Michigan

October 14, 1886

Error to Lenawee.

SHERWOOD J.

This is an appeal from the allowance of a claim by commissioners against the estate of John Kipp, deceased. The claim presented is for care and support rendered and furnished to Ann Vreeland, for John Kipp, the deceased. It is for board and services rendered; also for services rendered to the deceased during his last illness,--in all, with interest amounting to $1,246.64. The commissioners allowed the claimant $579.48. The executrix appealed to the circuit court for the county of Lenawee, where the case was tried before Hon. ANDREW HOWELL, circuit judge, by jury, and the claimant was allowed the sum of $801.87, and the proper judgment was entered accordingly. The executrix brings the case into this court by writ of error for review.

On the fourteenth day of December, 1861, John Kipp (husband of the executrix) and Ira Weyburn made their bond in the penal sum of $1,000 to Ann Vreeland, conditioned that they should support and maintain her during her natural life. (The bond will be found in the margin.)^[1]The obligors were sons-in-law of Mrs. Vreeland, and, as will be noticed she was to have the privilege of living in the family of either, as she might choose. Mrs. Vreeland lived until November 24, 1877, when she died at the house of claimant. The daughter of Mrs. Vreeland, and wife of John Kipp, died in September, 1870, and John married Mrs. Kipp, the executrix in February, 1871. John died the twenty-fifth day of April, 1883.

The claimant insists that after the death of the first Mrs. Kipp, Mrs. Vreeland made her home at his house for much the larger portion of the time until she died, and during that period he furnished to her, of the things required by the bond, for more than belonged to him to furnish as between him and John Kipp, and that it is for this excess that he makes his claim before the court. On the part of the estate the executrix contended that, during the whole time from the date of the bond until the death of Mrs. Vreeland, she was at John Kipp's house nearly or quite one-half the time; and that, while she was at the claimant's house, Mr. Kipp, at different times, gave her money to purchase such things as she wished, and necessary to her comfort and support, and paid a servant for taking care of her during her sickness in 1875, and furnished fully his part. There was no issue directed or made up under the order of the court at the circuit, but it was upon the theories of the parties above stated that the cause was tried before the jury.

The claimant, on the trial, introduced the bond in evidence, and then gave further evidence tending to show that Mrs. Vreeland was at the house and taken care of by him and his wife, after the bond was given, more than half the time; that it was worth from $7 to $10 per week to board and care for her; that Mr. Kipp had paid Mrs. Weyburn about $90 for taking care of Mrs. Vreeland. There was no testimony given to the effect that the care and support furnished by the claimant to Mrs. Vreeland was at the request of Mr. Kipp, express or implied, or on any express or implied promise of his to pay for the same, other than what appears in the bond.

At the conclusion of the evidence in chief on the part of the claimants, counsel for the executrix moved the court for instruction to the jury that there was no evidence to warrant a verdict in favor of the claimant, and that they should return a verdict for the defendant. This motion was denied. We think this ruling was correct. There was some testimony in the case from which inferences might be drawn proper to charge the estate, and the court could not pass upon that. It would be invading the province of the jury.

The defense then gave testimony tending to show that, for several years previous to Mrs. Vreeland's death, it was worth from three to four dollars per week to board and take care of her; that Mr. Kipp furnished her with clothing and money when at Weyburn's, and helped to take care of her when sick.

Counsel for the executrix then offered to show by a Mrs. Brook, who had the means of knowing, that Mrs. Vreeland was at Mr Kipp's a larger portion of the time previous to 1870 than she was at Mr. Weyburn's. This was...