Metzner v. Newman

• Decision Date: 01 October 1923
• Docket Number: No. 96.,96.
• Citation: 224 Mich. 324,194 N.W. 1008
• Parties: METZNER et al. v. NEWMAN et al.
• Court: Michigan Supreme Court

224 Mich. 324

194 N.W. 1008

METZNER et al.

v.NEWMAN et al.

No. 96.

Supreme Court of Michigan.

Oct. 1, 1923.

Appeal from Circuit Court, Gratiot County, in Chancery; Ira W. Jayne, Judge.

Suit by Maxine Cecil Metzner and another, by James G. Kress, their next friend, against Helen Newman and others. From a decree approving a compromise, the defendant Fred M. Breen, guardian ad litem of certain infants, appeals. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Fred M. Breen, of Detroit, in pro. per.

James G. Kress, of Ithaca, in pro. per.

William A. Bahlke, of Alma, for appellees Max E. Pollasky and others.

Hugo E. Braun, of Saginaw, for appellee Sharrar.

Butterfield, Keeney & Amberg and Fred N. Searl, all of Grand Rapids, for appellee Michigan Trust Co.

BIRD, J.

Michael Pollasky was a long-time, well-to-do resident of Alma. He died in May, 1917, at the age of 82. He left surviving him four chilren, viz.: Max E. Marcus, and Frank E. Pollasky and Anna Messenger. He also left him surviving four great-grandchildren, who are infants, namely: Helen Newman, Elaine Newman, Maxine Cecil Metzner, and Robert M. Soule, Jr. He disposed of his property by will in the following manner:

‘I, Michael Pollasky, of the city of Alma, county of Gratiot and state of Michigan, being of sound and disposing mind and memory, do make, publish and declare the following to be my last will and testament, hereby revoking any and all wills by me at any time heretofore made.

‘I. I will and direct that all of my just debts, funeral expenses and the expenses of administering my estate be paid in full.

‘II. I give and bequeath to the Jewish Orphan Asylum, in the city of Cleveland and state of Ohio, the sum of one thousand (1,000.00) dollars.

‘III. I give and bequeath to the Hebrew Union College, in the city of Cincinnati and state of Ohio, the sum of two hundred fifty ($250.00) dollars.

‘IV. I will and direct that the expenses and legacies above provided shall be paid, if possible, from the money which will be received at my death from Pisgah Lodge Number Thirty-Four, I. O. B. B., of which I am a member, and if said money is not sufficient to pay the same, then they shall be paid by my executors from the residue of my estate.

‘V. I give and bequeath to Alma Lodge Number Two Hundred Forty-Four F. & A. M., the sum of two hundred forty-four ($244.00) dollars.

‘VI. I give and bequeath to my granddaughters, Rosy Messinger, Sadie Messinger, Grace Soule, Leontine Messinger, Gladys Newman and Vera Metzner, the sum of one thousand ($1,000.00) dollars each.

‘VII. I give and bequeath to my grandsons, Louis and Norman Pollasky, the sum of one thousand ($1,000.00) dollars each.

‘VIII. I give and bequeath to my niece, Goldie Turnberg, the sum of one thousand ($1,000.00) dollars.

‘IX. I give and bequeath to the United Jewish Charities, in the city of Detroit and state of Michigan, the sum of one thousand ($1,000.00) dollars.

‘X. To my son, Max E. Pollasky, I give and bequeath my gold watch, gold-headed cane, gold-headed umbrella and my gold Past Master's jewel, and all other personal effects.

‘XI. I give and bequeath to my daughter, Anna Messinger, of Alma, Michigan, fifteen (15) shares of the capital stock of the Republic Motor Truck Company.

‘I give and bequeath to my daughter-in-law, Celia L. Pollasky, fifteen (15) shares of the capital stock of the Republic Motor Truck Company.

‘I give and bequeath to my niece, Goldie Turnberg, of Chicago, Illinois, fifteen (15) shares of the capital stock of the Republic Motor Truck Company.

‘In the event that I shall dispose of my holdings of stock in the Republic Motor Truck Company during my lifetime, I direct that there shall be paid to the three (3) beneficiaries mentioned in this paragraph of my will the equivalent, in cash, of the foregoing legacies, the amount thereof to be determined by the market value of said stock at the date of my decease.

‘XII. All of the rest, residue and remainder of my estate, both real and personal, of whatsoever name or nature, I give, devise and bequeath to my son, Max E. Pollasky, and Security Trust Company, of Detroit, Michigan, with full power to sell, mortgage or pledge the same, or any part or parts thereof, including any and all real estate, at public or private sale, upon trust nevertheless, to the ends, intents and purposes following:

‘(a) To pay the costs and expenses of this trust.

‘(b) To invest and re-invest said trust estate as in their judgment may seem best, in good real estate securities, and to divide and distribute the same, with the accumulation thereon, in equal shares, among my great-grandchildren, Helen Newman, Elaine Newman, Robert Soule, Jr., and Maxine Cecil Metzner, when the youngest thereof arrives at the age of twenty-one (21) years; the issue of any or all of my said great-grandchildren to take by representation, the share or shares their parent would have taken if then living.

‘XIII. I have made no provision for my sons, Max E. Pollasky, Frank E. Pollasky and Marcus E. Pollasky in this my last will, for the reason that I have fully provided for them during my lifetime.

‘XIV. I have made no provision for my granddaughter, Bernice Pollasky, in this my last will, for the reason that I feel that her father has fully provided for her.

‘XV. I hereby nominate and appoint my eldest son, Max E. Pollasky, and Rabbi Leo M. Franklin, both of the city of Detroit, state of Michigan, executors of this my last will and testament, and direct that no bond be required of them in that capacity.

‘In the event of the death or resignation of either of my executors above named before the completion of their trust, I direct that the Security Trust Company, of Detroit, Michigan, shall be named and appointed co-executor in his stead.

‘In the event of the death or resignation of both of my said executors before the completion of their trust, I direct that said Security Trust Company shall be appointed sole executor of this my last will and testament.’

This will was offered for probate by Max E. Pollasky, one of the executors named therein, and was duly allowed by the probate court of Gratiot county.

Three of the children of testator, namely, Frank E. and Marcus Pollasky and Anna Messenger, were not content with the provisions of the will and its admission to probate. They filed objections and perfected an appeal to the circuit court. The objections filed raise the questions of incompetency, duress, and undue influence of the testator.

While the appeal was pending in the circuit court, the Pollasky family had a conference. Out of this conference came a compromise agreement and a stipulation for a settlement of the circuit court appeal. The compromise agreement provided, in substance, that all specific legacies should be paid; that out of the residue certain costs and attorney fees should be paid and the balance should be divided equally between testator's four children and his four great-grandchildren. This settlement was agreed to and signed by all the legatees, both special and general. A stipulation was then signed by all the interested parties consenting that said cause be dismissed out of the circuit court and certified back to the probate court, subject to the compromise agreement. This stipulation was filed in the circuit court with the agreement and an order was made dismissing the cause and ordering that the case be certified back to the probate court, subject to the compromise agreement.

The executors named in the will having declined to accept the trust, the Michigan Trust Company was appointed administrator with the will annexed. It proceeded to administer the estate in accordance with the will as modified by the compromise agreement. After discharging its trust, it filed its final account in the probate court for Gratiot county, and a day of hearing was fixed. Before the hearing, appellant Breen was appointed guardian ad litem of the four great-grandchildren. After an examination of what had been done in the premises, Mr. Breen filed objections to the final account. A hearing convinced the probate court that the compromise agreement was not valid, and it therefore refused to allow the final account, in so far as it had administered the estate in accordance with the compromise agreement. Among the reasons for refusing to allow the account was that no court had passed upon the compromise agreement and pronounced it a fair settlement and one that was for the best interest of the infant legatees.

Acting upon this suggestion, two of the infant legatees, by their next friend, filed this bill on the chancery side of the court, setting up all of the proceedings and praying for a decree, determining that the compromise settlement was a fair one and one that was for the best interests of the infant legatees.

After the pleadings were perfected, a hearing was had. Plaintiffs made proof of the proceedings theretofore had in the premises. Considerable oral and documentary proof was taken. Some of the parents of the infant legatees testified for plaintiffs and expressed their approval of the compromise agreement. The defendants offered no testimony. After argument and consideration, the chancellor concluded that the compromise agreement should be approved and he found the agreement was a fair one, under all the circumstances, and that such settlement was for the best interests of the infant legatees. Appellant Breen, guardian ad litem of the infants, was not pleased with the conclusion reached, and he has appealed to this court.

Appellant Breen contends: (1) That the chancery court has no inherent power and jurisdiction to entertain this proceeding; (2) that plaintiffs did not establish that the will contest was a good faith contest; (3) that Act 249 of the Laws of 1921, authorizing compromise of will cases is unconstitutional as to this case, because it disturbs rights which vested before the act was passed.

1. An...