Keller v. McConville

• Decision Date: 28 May 1913
• Parties: KELLER v. McCONVILLE et al.
• Court: Michigan Supreme Court

175 Mich. 479
141 N.W. 652

KELLER
v.
McCONVILLE et al.

Supreme Court of Michigan.

May 28, 1913.

Appeal from Circuit Court, Wayne County, in Chancery; Joseph W. Donovan, Judge.

Action by Rose Hannah Brooks, individually and as administratrix of William McConville, for whom after her death Robert Keller, as administrator de bonis non of William McConville, was substituted, against John McConville and another. Judgment for the defendants, and plaintiff appeals. Affirmed.

Argued before STEERE, C. J., and MOORE, McALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ.

[141 N.W. 653]

Scott, Moran & Stafford, of Detroit (Guy A. Miller, of Detroit, of counsel), for appellant.

Merriam, Yerkes & Simons, of Detroit, for appellees.

STONE, J.

In this cause the bill of complaint was filed by Rose Hannah Brooks, in her own right, as mother, and as administratrix of the estate of William McConville, deceased, to set aside certain transfers of real estate and personal property made by him, about two months before his death, to his brother, the defendant John McConville. The grounds alleged in the bill for setting aside such transfers were two: (1) A weakened mental condition, brought about (a) by the excessive use of liquor resulting in frequent intoxication, and (b) a severe beating on the head a short time before his death; (2) the exercise of wrongful and undue influence over the mine of William McConville by the defendants, and threats and falsehoods, by which they, the defendants, induced William McConville to make the transfers complained of, while he was in such weakened mental condition. The answer of defendant John McConville denies that William McConville was a hard drinker and often intoxicated, and denies that he was in a weakened mental condition, and avers that up to within a very few days before his death he was a man of strong mentality, and in full possession of all his faculties; denies that he was severaly beaten about the head a short time before his death, and avers that the only time he was ever beaten was some two years prior to his death, and then not severely, and that he suffered no permanent ill effects therefrom. (2) The answers deny that any threats were made, or falsehoods were told to William McConville by defendants, or either of them, or that any undue or wrongful influence was exerted by defendants, or either of them, over the mind of William McConville. The answer of the defendant Delia McConville denied, substantially, the allegations of the bill as above stated, and denied any wrongdoing on her part. This answer is not printed in the record, and we have had to refer to the original returns to ascertain its contents. The answer of the defendant John McConville claims the benefit of a cross-bill, alleging that, as to a certain loan made to Harry M. Baxter and A. William Baxter, on which William McConville had taken a deed and given back a land contract on certain real estate, he (William McConville) had not only assigned the land contract, but had executed a deed to John McConville of the premises covered by the land contract, which had been lost or mislaid, and prayed for affirmative relief, and that a deed be given him in place of the one lost or destroyed.

By reason of the death of the complainant, Rose Hannah Brooks, subsequent to the entry of the decree in the court below, the proceedings were revived in the name of Robert Keller, administrators de bonis non of the estate of William McConville, deceased. Rose Hannah Brooks left a will, a certified copy of which, by stipulation, has been filed in this court and made a part of the record. By the terms of this will she left all her property, including the proceeds of this litigation, if any, to her four daughters, each of whom testified as a witness for the complainant in this cause.

William McConville died February 14, 1910, at the age of 45, unmarried, leaving as surviving relatives Mrs. Brooks, his mother, James McConville and John McConville, brothers, and Mrs. Keller, the wife of the administrator, Mrs. Maroney, Mrs. Morgan, and Mrs. Pierson, sisters. Defendant Delia McConville is the wife of John McConville. Up to a few weeks before his death William McConville had been engaged with his brother John, one of the defendants herein, in the retail grocery and meat business at 915 Fourth avenue in the city of Detroit. The brothers had been in this business for a number of years, a partnership having been formed between James, an older brother, and John and William in 1883. John was then 21 years old and William 18. James withdrew from the firm about 11 years before William's death, and from that time up to the time when William was forced, through physical incapacity due to his last illness, to retire, the business had been conducted by John and William as equal partners. The three brothers lived together for some time over the store, keeping what might be

[141 N.W. 654]

termed ‘bachelors' hall.’ John finally got married, and James lived with defendants and William six or seven years, and then got a room down town. William lived on with the two defendants until he died. The relations between the three brothers had always been of a close and intimate nature. The same friendly relations did not exist between the brothers and their mother, the original complainant. The testimony shows a very unfortunate and unhappy condition existing between them. The mother testified upon the hearing that she had not spoken to William for 18 years prior to his death, although, with the exception of 3 years, they had lived in the same city. She had married a second time. At the time of her marriage to Mr. Brooks she removed from the building above the grocery store, where she had lived with the sons a number of years, and after that time lived apart from them, living with her daughter Mrs. Keller during the last years of her life. When she married Mr. Brooks she took all of the...