Lapham v. Lapham

• Decision Date: 06 June 1927
• Docket Number: No. 100.,100.
• Citation: 214 N.W. 189,239 Mich. 237
• Parties: LAPHAM v. LAPHAM et al.
• Court: Michigan Supreme Court

239 Mich. 237

214 N.W. 189

LAPHAM

v.LAPHAM et al.

No. 100.

Supreme Court of Michigan.

June 6, 1927.

Appeal from Circuit Court, Wayne County, in Chancery; Royal A. Hawley, Judge.

Action by George Lapham against Thomas A. Lapham and others. Decree for defendants, and plaintiff appeals. Affirmed.

Argued before the Entire Bench.Leo S. Schrot, of Detroit, and William A. Flanigan, of Highland Park, for appellant.

Ignatius J. Salliotte, of Detroit, for appellees.

CLARK, J.

The trial court stated the facts:

‘Charles Lapham died intestate on October 17, 1902, leaving Julia Lapham, his widow, and Benjamin, George, James, John, Thomas A., Barney, Willis, and Charles, sons, and Caroline Wiegand and May Frances Lapham, daughters, as his heirs at law. Benjamin, George, James, and John Lapham and Caroline Wiegand were the children of his first wife, now deceased, and the remaining children were those of his second wife, Julia Lapham.

‘At one time the deceased owned 250 acres of land situate in the township of Ecorse, in said county, but eventually he conveyed away as gifts a considerable portion of it to his children of the first marriage. The plaintiff received from his father a deed of 40 acres of land in or about the year 1883. A 40-acre parcel of said land was also conveyed by the deceased to each of his children, Benjamin, John, and Mrs. Wiegand. James, however, received no conveyance of any real estate, and, as far as the record shows, no gift or conveyance of any personal property. After the making of these conveyances, there remained in the name of said deceased about 86 acres of land, and such was the situation at about the time of his death. However, shortly before his death, and on May 13, 1902, he executed four purported deeds of conveyance, one to each of his children, Thomas A., Willis, Charles, Jr., and Barney, wherein and whereby he conveyed one 20-acre parcel of said farm to Thomas A. Lapham, another 20-acre parcel to Willis, a parcel of 20 acres to Charles, Jr., and a parcel of 23 acres to Barney. Each of said conveyances was based upon a nominal consideration of $1 and were in fact gifts of the parcels of land severally described therein, except that each of said parcels was charged under the terms of deed thereof with the payment of $250 by each of the several grantees to the daughter, May Frances Lapham. In each of said deeds was incorporated the following stipulations:

“This deed shall not take effect and be inforce until after the death of both of the parties of the first part thereto.'

‘Julia Lapham, the widow, surviving her husband, is still living, although in feeble condition both physically and mentally.

‘By these conveyances the decedent conveyed away all his real estate, and no provision is made or reserved in any of the deeds for the benefit of Julia Lapham, except it be the stipulation above quoted.

‘After the death of her husband, the widow occupied and operated said farm, or leased the same for many years and until on or about October 5, 1925, when she quitclaimed to her several sons her interest in said respective parcels of said lands, and shortly thereafter said lands were sold on contract by the several sons to the real estate firm of Lieber & Norton, for a large sum of money.

‘On November 12, 1902, a petition was filed in the probate court for said county of Wayne, praying for the administration of said estate and for the appointment of the said Julia Lapham as administratrix thereof. This appointment was made, and she proceeded to perform the duties of her said trust. The inventory shows her receipts of personal property to have been the sum of $891.93, and her disbursements the sum of $554.91. No real estate was included in the inventory. The administration of said estate has not as yet been closed.

‘On the 25th day of July, 1903, James Lapham filed his bill of complaint in this court to set aside and declare void the several deeds of conveyance executed as aforesaid by said deceased on the 13th day of May, 1902, on the ground of the alleged nondelivery of the same by the said grantors, and also on the ground that said several instruments did not operate as deeds to convey the several parcels therein described to the several grantees therein named, but were of a testamentary character and could only operate, if at all, as the last will of said deceased.

‘A pluries subpoena was issued in said cause on January 19, 1904, and made returnable February 29, 1904, and was duly served on said plaintiff, George Lapham, on January 25, 1904, by John F. Cotter,...