Mertz v. Mertz

• Decision Date: 09 April 1945
• Docket Number: No. 52.,52.
• Citation: 311 Mich. 46,18 N.W.2d 271
• Parties: MERTZ v. MERTZ et al.
• Court: Michigan Supreme Court

311 Mich. 46

18 N.W.2d 271

MERTZ

v.MERTZ et al.

No. 52.

Supreme Court of Michigan.

April 9, 1945.

Appeal from Circuit Court, Presque Isle County, in Chancery; Geo. W. DesJardins, Judge.

Suit by Elizabeth Mertz, administratrix of the estate of Mary Mertz, deceased, against Clarence Mertz and Mildred Mertz for a decree declaring estate's ownership of a partnership interest in a commercial fishing business and in the personal property connected therewith and for an accounting. From a decree dismissing the bill of complaint, plaintiff appeals.

Affirmed.

Before the Entire Bench.

Howard H. Campbell, of Detroit, for appellant.

Frederick P. Hempel, of Rogers City, for appellees.

STARR, Chief Justice.

In June, 1940, plaintiff, Elizabeth Mertz, as administratrix of the estate of her mother, Mary Mertz, filed bill of complaint, asking that said estate be decreed to own a partnership interest in the commercial fishing business conducted by defendant Clarence Mertz and in the personal property connected therewith, and for an accounting as to such interest. Defendants answered, denying that the estate owned an interest in said business or property and denying plaintiff's right to an accounting. Plaintiff appeals from a decree dismissing her bill of complaint.

Decedent Mary Mertz and her husband, Fritz Mertz, lived in Rogers City, Presque Isle county. The following children were born of their marriage: Elizabeth (plaintiff) Cecelia, Theresa, Louis, Lawrence and Clarence (defendant). The youngest, Lawrence and Clarence, were twins born in 1891. Mary Mertz and her husband separated in 1892, and thereafter he lived apart from her and the family and apparently contributed nothing for their support. The mother supported herself and the children by doing washing and sewing. The three girls and the son, Louis, left home at rather early ages. The twins, Lawrence and Clarence stayed with their mother, and in 1911 they started a commercial fishing business. In 1916 they entered into a partnership with one Dr. Arscott, under the name of Mertz Brothers, for the purpose of continuing the fishing business. In 1920 they bought Dr. Arscott's interest in the partnership. Thereafter the other brother, Louis, returned home and acquired a one-third interest in the partnership. The three brothers continued the business as copartners until May, 1922, when Lawrence, a single man, died intestate.

In March, 1923, the mother, Mary Mertz, executed a will leaving her three daughters and her son, Louis, one dollar each, and the entire remainder of her estate, including real and personal property, to her son, defendant Clarence Mertz. At about the same time Clarence executed a will leaving his entire estate to his mother.

After the death of Lawrence in 1922, Louis and Clarence continued the commercial fishing business until November, 1925, when Clarence purchased Louis' interest in the partnership and its real and personal property for $4,000. They executed a certificate of dissolution of the partnership, but it was not filed. The estate of the deceased son, Lawrence, had not been probated, and in February, 1926, the mother filed a petition in probate court setting forth that at the time of his death Lawrence owned a one-third interest in three parcels of real estate in Rogers City and requesting a determination of his heirs at law. It appears that the real estate described in the petition included the home property, then occupied by Clarence and his mother, and also the real estate referred to as the dock property, which was used in the commercial fishing business. In March, 1926, the probate court entered an order determining that Lawrence's father and mother were his heirs at law and entitled to inherit his interest in said real estate.

The father, Fritz Mertz, died in 1925, and in March, 1926, on petition of the mother, defendant Clarence Mertz was appointed administrator of his estate. He filed an inventory listing the father's estate as the owner of a one-sixth interest in the three parcels of property that had been included in the proceedings for the determination of the heirs of the son, Lawrence. No personal property was included in the inventory. However, it appears that in November, 1925, after the father's death, all his surviving children had executed an assignment of their respective interests in his estate to the mother, Mary Mertz. On August 2, 1926, an order was entered assigning the residue of both the real and personal estate of the father to the mother. At this point it reasonably appears that the mother was the owner of a one-third interest in the partnership and its property; that is, she had acquired a one-sixth interest by inheritance from her son, Lawrence, and a one-sixth interest from the estate of her husband, Fritz. On August 21, 1926, the mother executed a deed conveying to her son, Clarence, her interest in the same three parcels of land that had been included in the estates of her son, Lawrence, and her husband, Fritz, but she did not make a written conveyance to Clarence of her interest in the partnership business and personal property.

After acquiring his brother Louis' interest in 1925, Clarence continued the fishing business under the name of Mertz Brothers until April, 1933, when he filed a certificate of copartnership under the name Mertz Fisheries, but in which certificate he listed himself as the only partner. Thereafter he continued the business under the name of Mertz Fisheries.

The mother died in April, 1938, at the age of 76. Her heirs at law were her three daughters and her son, Clarence, and three minor children of her deceased son, Louis. In April, 1940, about two years after her mother's death, plaintiff Elizabeth Mertz filed petition for appointment as administratrix of her mother's estate. On May 28th of that year she was appointed and qualified as administratrix, and on June 15th began the present suit.

On June 28, 1940, defendant Clarence Mertz filed his mother's will of March, 1923, and petitioned for its admission to probate. The three daughters, Elizabeth (plaintiff), Cecelia and Theresa, and the three children of the deceased son, Louis, filed notice of contest and objections to the admission of said will on the ground, among others, that the mother's conveyance of her property to her son, Clarence, in 1926 operated as an implied revocation of her will. Act No. 288, chap. 2, § 9, Pub. Acts 1939, Comp.Laws Supp.1940, § 16289-2(9), Stat.Ann.1943 Rev. § 27.3178(79). The will contest was certified to the circuit court for Presque Isle county and was heard by the circuit judge sitting without a jury. His opinion stated in part: ‘I have said that the will was executed on March 23, 1923. Mary Mertz died on April 28, 1938. On August 21, 1926, she deeded all of her property to her son, Clarence Mertz. She also transferred to him all of her personal property. The evidence in the case indicates that it was her intention to transfer to Clarence Mertz all of her property, and the deed and the surrounding circumstances, as well, show conclusively that Mary Mertz intended to revoke the will that she made on March 23, 1923. The deed operated as an absolute revocation of the will.'

Judgment was entered for the contestants disallowing the mother's will, and no appeal was taken. It should be noted that the will contest case and the present case were not heard by the same circuit judge. Subsequent to the entry of judgment in the will case, defendants Clarence and Mildred Mertz filed an amended answer in the present suit, alleging in substance that the judicial determination that the mother had conveyed all her property to Clarence amounted to a determination that at the time of her death she did not have a partnership interest in the commercial fishing business and personal property.

On the trial of the present suit, the probate court files relating to the administration of the estates of Fritz and Mary Mertz, and the proceedings for the determination of the heirs of Lawrence Mertz, were put in evidence. The court reporter's transcript in the will contest case was presented in evidence and, by stipulation of counsel, was filed in this court but not included in the printed record. There was testimony showing that in 1909 a savings account had been opened in a Rogers City bank in the names of ‘Mary Mertz or Lawrence and Clarence Mertz or either of them.’ This account was opened with a deposit of $500, and the bank record shows deposits and withdrawals from time to time, and a balance of $3,791.98 at the time of Mary Mertz' death in 1938. Clarence testified that after the fishing business was started, deposits in the joint savings account were made from the business. He further said that his mother had free access to and made all withdrawals from the account, and that he made no withdrawals in her lifetime. The record of the account indicates that during the period from 1922 to 1933 there was at all times more than $3,000 on deposit and at times in 1926 and 1927 more than $7,000. Shortly after the mother's death, Clarence withdrew the balance in the joint account, and plaintiff apparently does not question such withdrawal.

In her testimony plaintiff Elizabeth Mertz claimed, in general, that her mother had a partnership interest in the commercial fishing business, but her only material statement on this point was, ‘I have heard Clarence tell they were all in business together. He always said my mother had an interest in the fishing business.’ One Walter Scott, the husband of Cecelia Mertz, testified that some time in 1923 he talked with defendant Clarence Mertz about their going into the trap net fishing business together and that Clarence said, ‘Now, Walter, you will have to be awful careful with this money, because half of this money belongs to my mother.’ A friend of Mary Mertz who visited her in Rogers City shortly before her death testified in part:

‘Q. What was that conversation with Mrs. Mertz...