Laude v. Cossins, 77

• Decision Date: 06 October 1952
• Docket Number: No. 77,77
• Citation: 334 Mich. 622,55 N.W.2d 123
• Parties: LAUDE v. COSSINS et al.
• Court: Michigan Supreme Court

Page 123

55 N.W.2d 123

334 Mich. 622

LAUDE v. COSSINS et al.

No. 77.

Supreme Court of Michigan.

Oct. 6, 1952.

John C. Bossenberger, Detroit, for plaintiff and appellant Louis Andrzejewski, Detroit, of counsel.

Ira F. Morgan, Detroit, for defendants and appellees.

Before the Entire Bench, except NORTH, C. J.

BUSHNELL, Justice.

Violet Laude, a resident of Avon township, Oakland county, Michigan, died August 25, 1948, leaving as survivors her daughters, Lolo, Grance and Edna, her sons, George and John, and her husband, Charles Laude, plaintiff herein. Her estate consisted of household furnishings and fixtures, a house and several lots in Avon township.

In her last will and testament, which was admitted to probate on November 12, 1948, she directed that her estate be equally divided between her three daughters and her husband. Defendant Lolo Cossins, a daughter, was appointed executrix. No claims were presented against the estate.

Laude, in august 9, 1951, sought a decree assigning all of the property to him on the theory that it was accumulated out of his earnings and with the understanding and promise that title thereto would be held jointly. He charged that he relied on Violet's promises, expended about $9,000, and was thus defrauded because Violet took title in her name only. He asked that the court restrain Lolo from selling or assigning the property and closing the estate. A motion to dismiss his action, on the ground that the circuit court was without jurisdiction, was granted September 26, 1951, in an order which stated that plaintiff's bill was 'dismissed with prejudice.'

On September 20, 1951, Laude began a second action in equity, alleging that in 1937 he and Violet agreed to purchase property as tenants by the entireties, and that he provided all the funds. In his second bill of complaint Laude asked that the court impose a constructive trust upon the property of which he was defrauded by Violet's failure to place the title thereto in their joint names. He sought a decree declaring him to be the true and equitable owner of the assets of Violet's estate.

Two motions to dismiss Laude's second bill of complaint were filed; one by Lolo in her capacity as administratrix, and the other by Lolo, Grace and Edna, individually as devisees and legatees under the will. The court stated that it had no jurisdiction. An order was entered dismissing Laude's bill of complaint 'with prejudice.'

Defendants argue that a court of chancery is without power to set aside the provisions of a will which has been admitted to probate. Laude, however, is not attacking the validity of the will or questioning the order of the probate court. He claims the right to equitable relief on the ground that the assets of Violet's estate are his property and not that of testatrix. The question, therefore, is whether the trial court has jurisdiction to determine Laude's adverse claim of ownership of property included in the assets of Violet's estate.

The probate court is without jurisdiction to determine questions of title. Mitchell v. Bay Probate Judge, 155 Mich. 550, 554, 119 N.W. 916, Rudolphi v. Gilbert, 209 Mich. 141, 176 N.W. 400, and In re Estate of Fraser, 288 Mich. 392, 285 N.W. 1. The proper forum in which to determine questions of title is the circuit court. Plaintiff's claim is equitable in nature and is based upon...