Jones v. Perkins

• Decision Date: 12 March 1896
• Docket Number: 3,433.
• Citation: 76 F. 82
• Parties: JONES v. PERKINS.
• Court: U.S. District Court — Eastern District of Michigan

76 F. 82

JONES v. PERKINS.

No. 3,433.

United States Circuit Court, E.D. Michigan, Southern Division.

March 12, 1896

The complainant sets forth in her bill: That she is now of the age of 38 years; and in the year 1866, while living with her mother in Branch county, in this state, at the request of one Barber Perkins, the father of the defendant, was taken into the family of said Perkins, who had recently lost a daughter of about the same age as complainant, upon the agreement by Perkins and his wife that complainant should take the place in the family of the deceased daughter, and upon the assurance by said Barber Perkins that, 'if your oratrix should become a member of their family, he, the said Barber Perkins, would make her the same as his own child, and give her the same share of his estate at his decease as he would to his other child, Frank G. Perkins, the defendant herein ' As elsewhere stated in her bill, the promise alleged to have been made by said Perkins was 'to give to your oratrix an undivided one-half of all the estate, real and personal, he should possess at his decease, the same as to his son, Frank G. Perkins, the defendant herein. ' That in pursuance of such agreement, complainant went to the home of said Barber Perkins and wife, and became a member of his family, and so continued until her marriage, which was contracted with the consent and approval of the said Barber Perkins. That, after being thus adopted into his family, her name was changed to Minnie C. Perkins, which name she continued to bear until her marriage, and she was ever afterwards recognized as the daughter of said Barber Perkins and by the defendant as his sister, and always conducted herself as such daughter, yielding filial obedience to her adopted father and mother, and discharging all her duties towards them as though she was their daughter. The bill sets forth in detail the recognition which was accorded to her by said Barber Perkins and wife, agreeably to their promise of adoption, and other matters of fact relied upon in proof of her relationship to Barber Perkins and wife, which she claims to have acquired by becoming a member of their family under the agreement mentioned. It further appears from the bill that Barber Perkins removed to St. Joseph county, Ind., where he died December 13, 1887, leaving real and personal property of large value, situated in the states of Indiana, Michigan Kentucky, and elsewhere, the value of which was upwards of $20,000; that administration of his estate was granted to the defendant, Frank G. Perkins, by the circuit court for St. Joseph county, Ind., December 27, 1887; that on the 11th day of March, 1889, the final account of the defendant as administrator of his father's estate in Indiana was allowed, and he was discharged as such administrator, and thereupon he appropriated to his own use and benefit all of the estate, real and personal, of his deceased father in the state of Indiana; that on May 12, 1888, the defendant obtained letters of administration of the estate of said Barber Perkins in the state of Michigan, from the probate court for the county of Branch, Mich., and, in the course of his administration, filed an inventory in said probate court of the estate, which showed that the intestate owned at his decease a house and lot in said county of the value of $1,200, and his personal estate inventoried at $3,000. The bill further sets forth that on April 9, 1889, an order was made by the probate court for the county of Branch adjudging that said defendant was the only heir of said Barber Perkins, discharging him as administrator as aforesaid, and assigning to him the real and personal property of the estate of said Barber Perkins, deceased, in Michigan, and the same passed into the defendant's hands, and has been used and controlled by him as his own from that time until this date, some portions thereof having been sold by him. In excuse of the apparent delay of the complainant in prosecuting her suit, complainant alleges: 'That your oratrix, notwithstanding the agreement aforesaid made by the said Barber Perkins, to give her one-half of all the estate possessed by him at the time of his decease, in consideration of your oratrix becoming a member of his family, and sustaining to him the relation of a daughter during the time aforesaid, supposed until recently that, because said Barber Perkins had failed during his lifetime to execute a will devising to your oratrix such share or interest in his estate, that your oratrix could not enforce the agreement aforesaid; but having been advised that she was mistaken in this regard, and believing the same to be true, she alleges that she is entitled to the performance of the agreement so made upon the part of the said Barber Perkins in his lifetime, to grant and convey to her at his decease an undivided one-half of the real and personal estate he died seised of. That the said Frank G. Perkins, who has received and has the entire estate of the said Barber Perkins, as sole heir at law of said Barber Perkins, is obligated to convey to your oratrix one-half of all the estate and property received by him from his father, Barber Perkins. And that he should come to a just and true accounting with your oratrix with reference to such estate, and convey to her one-half of the same that remains undisposed of, and account to her for one-half of the proceeds of the sale of any that has been disposed of. ' The prayer for relief consists with the averments of the bill, and asks for an accounting of the property which has come into defendant's possession as heir at law of his father, and the conveyance of one-half, thereof, and for other relief. The bill was filed March 11, 1895. To this bill the defendant filed 10 grounds of demurrer. Only the sixth and ninth of these will be considered. These are as follows: '(6) That no satisfactory excuse or reason is shown for the laches of complainant in making and presenting her claim, if such she had, when the estate of the said Barber Perkins was probated and settled as set forth in the bill of complaint. ' '(9) That, if any rights ever existed in the complainant as alleged in the bill of complaint, they expired by statutes of limitations before the commencement of this suit.'

Johnson & Dickinson and Thurber & Stevenson, for complainant.

Campbell & Johnson, for defendant.

SWAN District Judge.

The theory of this bill is that the complainant is entitled to a specific performance of the contract it sets forth, and that equitably the defendant, who has succeeded to and received all the property of his deceased father, should be held to be a trustee for the complainant of one-half of the real and personal estate which he has received by descent. He appears to have been in the possession of the property in Indiana since the 27th day of December, 1887, and that in Michigan since the grant to him of letters of...