Konke v. Polczynski, 32.

• Decision Date: 02 December 1941
• Docket Number: No. 32.,32.
• Citation: 299 Mich. 571,300 N.W. 888
• Parties: KONKE et al. v. POLCZYNSKI et ux.
• Court: Michigan Supreme Court

299 Mich. 571

300 N.W. 888

KONKE et al.

v.POLCZYNSKI et ux.

No. 32.

Supreme Court of Michigan.

Dec. 2, 1941.

Suit in equity by Clara Konke, special administratrix of the estate of Adam Ficht and others, against Joseph Polczynski and his wife, to set aside a deed. From an adverse decree, plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; Joseph A. Moynihan, Judge.

Argued before the Entire Bench.

William Kaufman, of Detroit (Samuel H. Rubin, of Detroit, of counsel), for appellants.

Victor Kulaski, of Hamtramck, for appellees.

WIEST, Justice.

This is a suit in equity by the special administratrix of the estate of Adam Ficht, deceased, and his heirs at law to set aside a deed to defendants on the ground it was procured by undue influence.

Such a bill cannot be filed by a special administratrix, Union Trust Co. v. Kirchberg, 174 Mich. 161, 140 N.W. 464, but, inasmuch as, in this instance, the special administratrix is also an heir at law of the deceased, she may join as an heir at law with the other plaintiffs.

Plaintiffs appeal from a decree dismissing their bill.

May 8, 1934, Adam Ficht, father of plaintiffs and defendant Anna Polczynski, then 75 years of age and a widower, by warranty deed, conveyed his modest home in the city of Hamtramck to defendants, his daughter and her husband, reserving the right to occupy the premises during his lifetime. Under the terms of the deed the grantees assumed and agreed to pay a small mortgage on the premises, as well as unpaid taxes and special assessments. This deed was recorded May 10, 1934. Mr. Ficht died, intestate, July 23, 1939, at the age of 80 years.

The bill alleged that Mr. Ficht was aged, weak, illiterate, had made a previous will, leaving the property to his children, and the deed was the result of undue influence.

The record has been read and fails to establish undue influence. The fact that the deceased had previously expressed his intention to leave the property to all his children and executed a will to such effect, did not prevent change of purpose on his part or, standing alone, prove his subsequent action was by reason of undue influence exercised by defendants.

The day the deed was executed he went with his son-in-law, defendant Joseph Polczynski, to the office of an insurance agent and notary public, who had prepared his previous will and talked his language, explained what he wanted to do and the deed was prepared, fully explained to him, and he...