Mayhew v. Wilhelm, 2.

• Decision Date: 06 March 1930
• Docket Number: No. 2.,2.
• Citation: 229 N.W. 459,249 Mich. 640
• Parties: MAYHEW v. WILHELM et al.
• Court: Michigan Supreme Court

249 Mich. 640

229 N.W. 459

MAYHEW

v.WILHELM et al.

No. 2.

Supreme Court of Michigan.

March 6, 1930.

Appeal from Circuit Court, Wayne County, in Chancery; Fred S. Lamb, Judge.

Suit by June Estella Mayhew, by Edward S. Mayhew, her next friend, against Ruth Wilhelm and others. Decree for plaintiff, and defendants appeal.

Bill dismissed.

Argued before the Entire Bench.

Anthony Nelson, of Detroit, for appellants.

Maurice E. Fitz-Gerald, of Detroit, for appellee.

NORTH, J.

About ten years previous to her death, which occurred August 3, 1924, Mrs. Estella Mayhew married Dr. Edward S. Mayhew. She was previously wedded, and the three defendants in this case are children of her former marriage. Mrs. Mayhew became possessed of some property at the death of her first husband. Until approximately six months before her death she seems to have kept the title to all of her property in her own name and to have handled it on her own account. She disposed of certain parcels and reinvested in others. In the latter part of 1923 Mrs. Mayhew became pregnant. She was then nearly forty-five years of age, and the record discloses that she viewed approaching childbirth with serious alarm. She felt that she would not survive the ordeal, and witnesses for both plaintiff and defendant testified that she repeatedly announced her intention of making a disposition of her property, stating that in the event of her death she wanted it to pass to the children of her first marriage. She was then the owner in fee of some property, and as to other parcels her interest was that of a vendee under land contracts.

With the evident purpose of carrying out her announced intention, in February, 1924, she paid to a Mr. Holm the balance of the contract price for one parcel of land, and took from him a warranty deed to herself and her son Howard as joint tenants. This deed was recorded February 26, 1924. She also had title in fee to another parcel of land which she had owned since 1919. She deeded this to a Mr. Stone, February 20, 1924; and on the same day he deeded the property to Estella Mayhew, Ruth Wilhelm, and Virgil Wilhelm, ‘all to hold as joint tenants and not as tenants in common.’ These deeds were recorded February 26, 1924. Mrs. Mayhew also had a vendee's interest in land contracts covering six other lots. In February, 1924, she assigned her interest in the contract covering two of these lots to Mr. Stone; and in April, 1924, she made a similar assignment to him of each of the other four contracts. On the same day the contracts were assigned to him, Mr. Stone assigned each one to Mrs. Mayhew and to one or more of the defendants herein, ‘to hold as joint tenants and not as tenants in common.’ These contracts, to which the respective assignments were attached, were not recordable, because they were not witnessed and acknowledged. Mrs. Mayhew retained control until her death of all the papers involved in the above transactions. But there is undisputed testimony that she told the defendants and others that she had so arranged her affairs that the property would go to the defendants upon her death, saying, as Howard Wilhelm testified: ‘That she wanted her own children, Ruth, Virgil and myself, to have the property, because we were the rightful heirs to it and that the doctor was making enough money to take care of anything-himself and his own children.’

The plaintiff herein is the child whose birth was in prospect; and she was born May 18, 1924. Mrs. Mayhew's premonitions as to serious consequences attending this childbirth proved unfounded; but about three months thereafter she was killed in an automobile accident. Besides having made the above-noted disposition of her real estate, on February 20, 1924, Mrs. Mayhew made a will by which she bequeathed all her personal property to her daughter Ruth. This will was admitted to probate; but the plaintiff herein, under the provisions of the statute (3 Comp. Laws 1915, § 13790), received the same share of the personalty as she would have taken had Mrs. Mayhew died intestate. The statute cited is as follows:

‘When any child shall be born after the making of his father's or his mother's will and no provision shall be made therein for such child, he or she shall have the same share in the estate of the testator as if the parent had died intestate. And the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.’

The bill of complaint, as originally filed, sought cancellation of the deeds and assignments above noted on the theory that they constituted a testamentary disposition of Mrs. Mayhew's real property, or that they should be construed by the court to be subject...