King v. Luyckx

• Decision Date: 21 May 1937
• Docket Number: No. 15.,15.
• Citation: 273 N.W. 414,280 Mich. 117
• Parties: KING v. LUYCKX et al.
• Court: Michigan Supreme Court

280 Mich. 117

273 N.W. 414

KING

v.LUYCKX et al.

No. 15.

Supreme Court of Michigan.

May 21, 1937.

Suit by Harold N. King against Helen Aylward Luyckx and another. From an adverse decree, the plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Harry B. Keidan, judge.

Argued before the Entire Bench.

Atkinson & O'Connor, of Detroit (Van Dyke & Sloan, of Detroit, of counsel), for appellant.

Henry C. L. Forler, of Detroit (Monaghan, Crowley, Clark & Kellogg, of Detroit, of counsel), for appellees.

BUSHNELL, Justice.

Appellant filed a bill in equity for the specific performance of an oral contract to make a will. He sought a decree requiring defendant Helen Aylward Luyckx to conveycertain real property, and directing defendant Edmund T. Luyckx, as administrator of the estate of Elizabeth Aylward, deceased, to transfer 400 shares of the capital stock of the R. L. Aylward Coal Company, a Michigan corporation. All of this property was owned by Elizabeth Aylward at the time of her death. At the time the alleged oral contract was made, plaintiff was employed by the coal company as its manager under an unexpired, ten-year written contract; it is his claim that Miss Aylward agreed that in consideration of his continuance as manager of the business after the expiration of this contract, and so long as she might live, she would will him all this property, which represented all her interest in the coal company.

After testimony was taken in the circuit court, a decree was entered dismissing plaintiff's bill. Some of the background of the present litigation may be found in the following reported cases: In re Aylward's Estate, 243 Mich. 9, 219 N.W. 697,R. L. Aylward Coal Co. v. Luyckx, 261 Mich. 394, 246 N.W. 156, and Luyckx v. R. L. Aylward Coal Co., 270 Mich. 468, 259 N.W. 135. The bill of complaint in the instant case was filed shortly after our determination of R. L. Aylward Coal Co. v. Luyckx, supra, which case involved an alleged lost will and testament of Miss Aylward.

The legal principles applicable to the enforcement of oral agreements of this nature are set forth in Van Houten v. Vorce, 259 Mich. 545, 244 N.W. 157, 158. We said in that case: ‘There must be something more than a mere unexecuted intention to make a will. There must be a contract, a meeting of minds, an agreement based upon a sufficient consideration, clearly proven, and such acts of part performance as to remove the parol agreement from the operation of the statute of frauds [3 Comp.Laws 1929, § 13411].’

Specific performance of an oral contract to convey or devise real property is a matter of grace and not of right. The question of whether such relief is to be granted must be determined by the circumstances of each case. Denby v. Dorman, 261 Mich. 500, 505, 246 N.W. 206.

In this trial de novo, decision rests upon whether there was sufficient proof of the claimed oral contract. Mr. Frank W. Atkinson, an attorney, testified for the plaintiff. He had been retained by Miss Aylward to try the contest of the will of Mary Aylward (see In re Aylward's Estate, supra). Mary Aylward was the mother of Elizabeth Aylward and the grandmother of Helen Aylward Luyckx, defendant herein. The will contest was terminated by the denial of a rehearing in October of 1928, and Mr. Atkinson concluded the matter in January or February of 1929 when the legacy was paid to Helen. He again represented Miss Aylward in May of 1929 in connection with the examination of an abstract of title, as a result of which lawsuits were begun by him and were not terminated until 1931. He stated that after 1931, ‘I did not transact any further business for Elizabeth Aylward until she consulted me prior to her death about preparing a will for her. She first consulted me within a year of her death and consultations with her in a regard to the will continued practically up until the time of her death.’

Over objection of defendants' counsel that such testimony pertained to privileged communications, Mr. Atkinson was permitted to testify to certain conversations he had with the deceased during social visits with her from February to May of 1929. He stated that the coal business was almost invariably the subject of discussion, and that Miss Aylward told him that Harold King was going to remain in the business as long as she lived. At that time, Elizabeth Aylward had already given King a one-half interest in the business, and it is the testimony of Mr. Atkinson that she said: ‘I am content now, because after all that trouble, Mr. King has agreed to remain and conduct this business in the same way that he had before, and to look after my interests and my personal interests, as long as I live and when I die, the business and the property on Fort street will be Mr. King's. * * * And she stated later on, when she told me that she had agreed that King was to have the coal property and the stock, that she did not want Mrs. Luyckx to have any of her property. I suggested that if that was the understanding, that she should have her affairs fixed so that they would be carried out; and she said that Judge Hally had attended to that. She did not use legal phrases and says, ‘in consideration of this, I have agreed to do this, and in consideration of that, Mr. King has agreed to do that.’'

Passing the question of the admissibility of Mr. Atkinson's testimony and treating it all as admissible, we do not think that it establishes a contractual obligation. Our observations in Paris v. Scott, 267 Mich. 400, 255 N.W. 216, are applicable to the situation presented by this appeal. We said in that case, 267 Mich. 400, at page 403, 255 N.W. 216, 217:

‘In cases of this kind, the testimony of witnesses must be viewed with great caution, because of the frailties of memory, the improbability of repeating the precise language of a person since deceased, of fairly expressing the full state of mind of such person, and because the change of a word may mean the difference between a binding contract and a mere expression of intention. Care must also be taken lest the court, out of considerations of equity or sympathy, make a contract for the parties where none existed, even though such contract might or would express their desires. Where the alleged contracting parties cannot testify, their acts loom large as compared with what witnesses say they said.

‘Without attacking the credibility of any of the witnesses, the case presents persuasive indices that the conversations relied upon were merely expressions of intention rather than of a contract which Fred and Alice Paris considered binding on them.’

We also said in Wild v. Wild, 266 Mich. 570, 572, 254 N.W. 208:

‘Proofs of admissions are concededly the most unreliable known to the law. They should be received with caution and subjected to careful scrutiny, as no class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission and are liable by the omission or the change of words to convey a false impression of the language used. No other class of testimony affords such tendencies or possibilities for unscrupulous witnesses to torture the facts or commit open perjury, as it is often impossible to contradict their testimony at all or at least by any other witness than the...