In re Lucas' Estate

• Decision Date: 17 May 1935
• Docket Number: No. 40.,40.
• Citation: 261 N.W. 117,272 Mich. 1
• Parties: In re LUCAS'ESTATE. In re THOMPSON.
• Court: Michigan Supreme Court

272 Mich. 1

261 N.W. 117

In re LUCAS'ESTATE.

In re THOMPSON.

No. 40.

Supreme Court of Michigan.

May 17, 1935.

In the matter of the estate of Emlitta King Lucas, deceased. Claim of Charles L. Lyon was disallowed in the probate court as against the estate of the deceased, and, after the claimant's death, an appeal taken by him to the circuit court was prosecuted by Grace B. Thompson, ancillary administratrix of his estate. From an adverse judgment, the ancillary administratrix appeals.

Affirmed.Appeal from Circuit Court, Oakland County; Glenn C. Gillespie, judge.

Argued before the Entire Bench.

Wiley, Streeter, Smith & Ford, of Detroit, for claimant.

J. Gilbert Quail, of Detroit, for estate and appellee.

WIEST, Justice.

In February, 1931, DeWitt B. Lucas and Emlitta King Lucas, husband and wife, residents of Birmingham, this state, vendee purchasers of certain premises in Bloomfield township, Oakland county, upon which they were erecting an expensive residence, found themselves without financial means to meet construction expenses and avoid mechanics' liens and had immediate need of $4,500 for such purpose and, by correspondence, made their want known to, and solicited a loan for that amount and purpose from Charles L. Lyon, a long-time friend residing in Pittsburgh, Pa. Mr. Lyon acceded to the request for the loan and sent a draft, payable to Mr. Lucas for the amount. Mr. and Mrs. Lucas indorsed the draft, received $500 in cash on it, and a credit of $4,000 in Mrs. Lucas' bank account. Mr. and Mrs. Lucas, at Birmingham, executed their note for the sum borrowed, payable to ‘Charles L. Lyon, 614 Bessemer Building, Pittsburgh, Pennsylvania, or order,’ and also stated therein: ‘This principal sum and accruing interest, is acknowledge to be a first claim against our estates, in the event of the decease of one or both borrowers, within the specified time.’

The note was mailed at Birmingham to Mr. Lyon at Pittsburgh, and was never paid. Mr. Lucas is living, but Mrs. Lucas is dead, and Mr. Lyon presented the obligation as a claim against her estate. It was disallowed in the probate court as against the estate of the deceased, but allowed against property held by Mr. and Mrs. Lucas by the entireties. The probate court commissioners evidently had in mind section 13062 et seq., Comp. Laws 1929.

An appeal to the circuit court was taken by Mr. Lyon and, upon his death, was prosecuted by the ancillary administratrix of his estate.

The circuit judge found the note to be a Michigan contract and the estate of Mrs. Lucas not liable thereon, because it was executed by Mrs. Lucas and her husband for the benefit of property owned by entirety, and, therefore, apart from her separate estate, and entered judgment against the claim.

Upon appeal counsel for plaintiff contend that the note was a Pennsylvania contract; that recovery thereon is governed, and permitted by the law of that state, and it is not a contract governed by the Michigan law of coverture, but, even if a Michigan contract, the facts remove the obligation from the law of coverture, regardless of the mentioned statutory remedy.

The loan was solicited by residents of Michigan, received here by the borrowers, the note was signed here and mailed here to the payee, and it was not payable elsewhere by its terms. It set forth the address of the payee, but that only served for identification purposes and not to fix the place of payment. Strawberry Point Bank v. Lee, 117 Mich. 122, 75 N. W. 444.

The evidence did not remove the case from the rule that: ‘If no place of payment is named in a note, it is presumed to be payable at the place of residence of the maker.’ 3 R. C. L. p. 911. Strawberry Point Bank v. Lee, supra.

This rule, of course, contemplates delivery for such is essential to consummation.

The parties were at a distance from each other, all their negotiations had been carried on by mail, and delivery was effectual, in this instance, upon the deposit of the note in the mail for it was so accepted and it was received by the payee.

As well stated in Barrett v. Dodge, 16 R. I. 740-743, 19 A. 530, 531,27 Am. St. Rep. 777: ‘In the absence of instructions to the maker as to the mode by which he should return them ...