Kinney v. Kinney
| Decision Date | 04 October 1922 |
| Docket Number | No. 74.,74. |
| Citation | 220 Mich. 311,189 N.W. 897 |
| Parties | KINNEY et al. v. KINNEY et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Iron County, in Chancery; Flannigan, Judge.
Suit by Adelia V. Kinney and others against Mary E. Kinney and others. Decree for defendants, and plaintiffs appeal. Affirmed.
Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Harriet Freebey (Arthur Brown, of Ann Arbor, of counsel), for appellants Adelia V. Kinney and others.
M. S. McDonough and L. A. Lyon, both of Iron River, for appellants Henry Aaron Kinney and Willard A. Kinney, individually and as executors of the will of John S. Kinney, deceased.
M. J. Sherwood, of Marquette, for appellee.
This bill is filed to enforce specifically a contract or agreement which it is claimed John S. Kinney made with his children in January, 1916, and also to bar the dower interest of Mary Kinney, his second wife, in his estate.
John S. Kinney was for many years a resident of Iron county. He was the owner of a small farm in that county. In 1908 deposits of iron ore were discovered on his premises. He soon after leased the premises, and from that time until his death, in 1918, he enjoyed a very comfortable income from royalties derived therefrom. In July, 1912, he made a will in which he gave all of his property to his five living children and one grandchild in unequal proportions. At this time his wife was deceased. At the same time he conveyed all of his property to his daughter Adelia and his son Willard, in trust, for the use and benefit of his children, and directed the income of his estate to be paid to his children in the proportions designated in the will. By the terms of the trust it was terminated at this death, and the property reverted to his estate.
In January, 1916, while in Washington, D. C., he executed what is termed a contract or agreement with his five living children. The grandchild was omitted. It view of the fact that this is the paper which we are asked to enforce, it will be quoted in full:
‘This agreement, made this 3d day of January, A. D. 1916, by and between John S. Kinney, of Palatka, in Iron county, and state of Michigan, party of the first part, and Laura A. Piper, Willard A. Kinney, H. Aaron Kinney, Adelia V. Kinney, all of the same county and state, and Edith M. Englehardt, of Lake Warth, in Palm Beach county, and state of Florida, parties of the second part--
‘Whereas, the said parties of the second part are all of the sons and daughters now living of the said John S. Kinney; and
‘Whereas, it has been heretofore and continues to be agreed between them and the said John S. Kinney that, in consideration of the financial assistance and services rendered and to be rendered by the said parties of the second part, the said party of the first part will give, devise and bequeath unto the said parties of the second part all the property owned by him at his decease; and
‘Whereas, the said party of the first part, in pursuance of said agreement did make and execute, to wit, on the 29th day of July, 1912, his will and testament, devising and bequeathing all of such property to said parties of the second part; and
‘Whereas, the said party of the first part has been advised that it will be advantageous to reduce the said agreement to writing, and he is desirous of making said agreement as legally binding as possible:
‘Witnesseth, that the said party of the first part, in consideration of the premises and further of the sum of the dollar, hereby covenants and agrees to devise and bequeath to said parties of the second part, all the property and estate, real, personal, and mixed, of which he shall die seized or possessed, and if from any cause he does not leave a last will and testament legally effective for this purpose, then this covenant and agreement shall have the same force and effect in regard to his property as such a last will and testament would have and shall be enforceable at law or in equity, by any appropriate proceedings.
‘In testimony whereof he hereunto sets his hand and affixes his seal the day and year first above written.
‘Signed, sealed, and delivered in the presence of William Henry Dennis, Wm. Meyer Lewin.
‘United States of America, District of Columbia-to wit:
‘On this third day of January, in the year of our Lord one thousand nine hundred and sixteen, before me, the undersigned, a notary public in and for said district, whose commission expires on the 27th day of February, 1918, personally appeared John S. Kinney, to me known to be the same person described in and who executed the within and foregoing instrument, who acknowledged the same to be his free act and deed.
Within a week after the execution of this agreement John S. Kinney and Mary Hubbard, who afterwards became his second wife, executed an antenuptial agreement in which an annuity of $1,000 was provided for the prospective wife, Mary Hubbard, during the time they lived together as husband and wife, in consideration of which she waived all her interest in the estate of Mr. Kinney. Soon after this they were married and lived together until October, 1918, when Mr. Kinney was killed in an automobile accident at Long Branch, Cal.
In 1917 Mr. Kinney made another will, revoking his former will, in which he again gave all of his property to his children and grandchild, but in different proportions than he did in the 1912 will, subject, however, to a charge of an annuity of $2,400 a year to his widow. In this will his two sons, the defendants, were made executors. They accepted the trust, offered the will for probate in the county of Iron, and the same was duly admitted. Three children and the grandchild now ask this court to specifically enforce the agreement quoted, and also to bar the widow's dower by reason of the antenuptial contract.
Ordinarily, when a contract or agreement is asserted by the first party which is very beneficial to the second party, slight proof will suffice to...
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...by way of specific performance is not a matter of strict legal right but rests in the sound discretion of the court. Kinney v. Kinney, 220 Mich. 311, 316, 189 N.W. 897, and prior decisions there cited. In the case at bar we think that the trial court reached a correct conclusion. The proofs......
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