Minasian v. Boyce, 31

Decision Date08 September 1954
Docket NumberNo. 31,31
Citation340 Mich. 438,65 N.W.2d 765
PartiesElizabeth MINASINA, Special Administratrix of the Estate of Edward Minasian, Deceased, and Elizabeth Minasian, Plaintiff-Appellant, v. Sam BOYCE, Administrator with the will annexed, of the Estate of Lena Minasian, and Sam Boyce and Leah Greco, Defendants-Appellees.
CourtMichigan Supreme Court

Thomas L. Thomson, Detroit, for plaintiff and appellant.

Berniece C. Merrill, Detroit, for defendants and appellees.

Before The Entire Bench.

BUSHNELL, Justice.

Plaintiff Elizabeth Minasian, individually and as special administratrix of the estate of her deceased husband, Edward Minasian, sought specific performance of an oral agreement to devise land and bequeath personalty which she claims she entered into with Lena Minasian during her lifetime or, in the alternative, a decree impressing a constructive trust on the property of the estate of Lena, who was the mother of Elizabeth's deceased husband, Edward.

The record shows that prior to June, 1942, Elizabeth and her sister, Anelia, were roomers in the home of Lena and Jacob Minasian in the city of Detroit. Following Elizabeth's marriage to Edward, she and her husband continued to live in the home of the parents, as did her sister. In 1943 Lena purchased another home. She took title thereto in the name of herself and husband, and gave a purchase money mortgage for $4,500. In April of 1944, the parties moved into the new home, a 2-family flat. The Minasians thereafter occupied the lower flat and rented out the upper.

Elizabeth contends that, because Lena did not have sufficient funds to purchase the home and the furnishings, she and her husband agreed with the parents that each family would pay one-half of the cost of the furniture and the furnishings, and that Elizabeth would advance money from time to time to apply on the mortgage, with the understanding that, upon the death of Lena and Jacob, everything would go to Elizabeth and her husband or the survivor.

A furniture bill, dated April 19, 1943, showing Lena as the purchaser, was made a part of the record. A bank deposit book covering the joint account of Elizabeth and Edward indicated a withdrawal of $1,500 on November 29, 1943. A discharge of the mortgage on the new property, which bears the date of July 13, 1944, was also received in evidence.

Early in 1944 Lena suffered a stroke, became paralyzed and was unable to move about for a period of time, which conflicting testimony established as from three weeks to six months. During the period Elizabeth quit her job as a waitress and remained at home in order to nurse Lena and take care of the household duties. Later that year disputes arose between Elizabeth and Lena, with the result that, although ordered to leave the home, Elizabeth refused or, rather, said she would move if Lena would pay some indefinite sum of money that Elizabeth claimed was due her. There is no showing that any money was paid or that anything was given Elizabeth. However, she and her husband moved out of the home several seeks thereafter.

Plaintiff's sister and a friend of the elder Minasians offered testimony to the effect that Lena had stated that her money and everything that she possessed would go to Elizabeth. Other witnesses testified to the services performed by Elizabeth. Defendant Leah Greco, one of Lena's two children by a former marriage, who was joined as a defendant, testified that Lena had admitted owing Elizabeth some money and was willing to pay it. She further said that Edward told her later that the money had been paid.

The question presented for determination here is whether the testimony established the claimed oral agreement, the trial judge being of the opinion that it had not. The burden is always upon the plaintiff in such cases to establish the agreement by clear and convincing proofs. Vandercook v. Kurtz, 297 Mich. 87, 297 N.W. 82. This burden is not lessened in any way by the statute which bars the testimony of facts equally within the knowledge of the deceased. C.L.1948, § 617.65, Stat.Ann. § 27.914.

Notwithstanding the rule that chancery appeals are heard on the record de novo, we are always mindful of the advantage possessed by...

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3 cases
  • Ooley v. Collins, 79
    • United States
    • Supreme Court of Michigan
    • December 1, 1955
    ...question of fact is presented upon the issue of whether plaintiff loaned the money to Collins or to the Millers. In Minasian v. Boyce, 340 Mich. 438, 441, 65 N.W.2d 765, 766, this court 'Notwithstanding the rule that chancery appeals are heard on the record de novo, we are always mindful of......
  • Swenson v. Michigan Employment Sec. Commission, 5
    • United States
    • Supreme Court of Michigan
    • September 8, 1954
    ......        Following the Kut case the Ohio Supreme Court on March 31, 1954, decided Tary v. Board of Review, etc., 161 Ohio St. 251, 119 N.E.2d 56, a case involving a ......
  • Martin v. Arndt, 17
    • United States
    • Supreme Court of Michigan
    • April 14, 1959
    ...of the chancellor. Quackenbush v. Quackenbush, 305 Mich. 704, 9 N.W.2d 900; Zak v. Gray, 324 Mich. 522, 37 N.W.2d 550; Minasian v. Boyce, 340 Mich. 438, 65 N.W.2d 765; Straith v. Straith, 355 Mich. 267, 93 N.W.2d We affirm the decree of the lower court. Defendants and appellees may have cos......

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