Morford v. Diffenbacker

• Decision Date: 23 September 1884
• Citation: 54 Mich. 593,20 N.W. 600
• Court: Michigan Supreme Court
• Parties: MORFORD v. DIFFENBACKER.

20 N.W. 600

54 Mich. 593

MORFORD v. DIFFENBACKER.

Supreme Court of Michigan

September 23, 1884

Error to Lenawee.

Bean & Underwood, for plaintiff.

Westerman & Westerman and Millard, Weaver & Weaver, for defendant.

COOLEY C.J.

Ejectment. The suit was begun by the filing of a declaration in the name of John Armstrong, as guardian of Mariam R. Morford, an infant, as plaintiff, and counting on the seizin of said plaintiff, "as such guardian, and in the right of said Mariam Morford," in the W. 1/2 of the S.W. 1/4 of the S.W. 1/4 of section 5, and the W. 25 acres of the W. 1/2 of the N. W of section 8, in township 6 S., of range 3 E. There was also a count in which an undivided 1/2 of the W. 50 acres of the W. 1/2 of the N.W. 1/4 of section 8 was claimed.

After the defendant had appeared and filed a plea to the merits the infant, by her guardian, presented a petition in which it was stated that she was nine years of age; that she was entitled to recover certain real estate described in the declaration; and she prayed that Armstrong, her guardian, might be appointed her next friend to appear for her in said suit, and that the declaration in the cause might be amended by striking out whenever occurs the name of the plaintiff John Armstrong as guardian of Mariam R. Morford and substituting in place thereof Mariam R. Morford, an infant under the age of 21 years, by John Armstrong, her next friend. This motion was opposed by defendant, but was granted, and it was ordered that the cause proceed the same as though it had been commenced in the name of Mariam R Morford, by John Armstrong, her next friend.

When the cause came on for trial the defendant objected to the trial on the grounds (1) that there was no issue formed between the parties therein; (2) that the court had no jurisdiction to try the same, there being no proceedings by which the defendant had been legally summoned or brought into court to answer this plaintiff; (3) that no plea had been filed by the defendant to the declaration of this plaintiff. This objection merely raised the question of the power of the court to allow the amendment which had been ordered. The court overruled it, and directed the trial to proceed. In tracing title in the plaintiff it became necessary to show the probate in Michigan of the will of William Diffenbacker, formerly of the county of Livingston, in the state of New York, which bore date March 12, 1868, and was probated, in the surrogate's court of that county in the following May. For this purpose the records of the probate court of Lenawee county were put in evidence, from which it appeared that on January 16, 1882, John Armstrong presented to that court a petition reciting the death of said William Diffenbacker and the probate of his will in the state of New York; that at the time of his death he was seized of real estate situate in said county of Lenawee, which by the will was devised to Henry Diffenbacker and Elizabeth Diffenbacker for the term of their natural lives, and at their deaths to the children of said Henry in fee; that said Henry had died leaving two children, Elva and Charles; that said Elva had since deceased, leaving a last will, by which an interest in said real estate was devised to Mariam R. Morford, an infant, of whom petitioner was guardian. And the petition prayed that said will of William Diffenbacker be admitted to probate in Lenawee county, and letters for the execution of the same granted.

The petition was not verified by oath, and the record shows no proof made of Armstrong's guardianship, but an order was made for hearing upon it, and notice of hearing was duly published. On the day appointed for hearing, the will with the New York probate was presented, and, no objection being made, an order admitting it to probate in Lenawee county was duly entered. When these proceedings were offered in evidence on this trial, the defendant objected that they were invalid because it did not appear that John Armstrong was in any manner interested in the estate of William Diffenbacker, or had any right to move in the probate of the will. He stated in his petition that he was guardian to Mariam R. Morford, but it was claimed he made no proof of the fact either at the time of presenting the petition or on the day of hearing. He did not even state where he was appointed such guardian. The court overruled this objection, and the defendant excepted. The will of Elva Diffenbacker bears date February 21, 1880, and its bequests are in the following words:

"First. I desire that all my just debts and funeral expenses be paid by my executor out of my estate. Second. I hereby give and devise unto my cousin, Mariam R. Morford, my organ now in my possession, the same being the only organ now in my possession. Third. I hereby give and devise to my mother, Elizabeth Diffenbacker, all the rest, residue, and remainder of my property, of whatever nature, which I shall die siezed of, for and during her natural life; and in case the use of said property shall be insufficient for her support, then and in such case I hereby authorize her to dispose of such of said property and such amounts thereof which shall be sufficient for her support; and whatever shall remain at her death I hereby give, devise, and bequeath unto my said cousin, Mariam R. Morford, and to her and her heirs forever."

The facts in the case, and the conclusions of law thereon, are found by the circuit judge as follows:

"FINDINGS OF FACTS.

"First. William Dieffenbacker, the grandfather of the above-named defendant, died at Geneseo, Livingston county, state of New York, on the eleventh day of May, A.D.1868, seized in fee-simple of the W. 1/2 of the S.W. of section 5, and the W. 50 acres of the W. 1/2 of N.W. 1/4 of section 8, all in town 6 S., of range 3 E., in the township of Adrian, county of Lenawee, and state of Michigan, which above-described property is the subject-matter of this suit.

"Second. That said William Dieffenbacker died testate, and his last will and testament, after being first proved and allowed by the surrogate court of the said county of Livingston, New York, was proved as a foreign will and admitted to probate by the probate court of Lenawee county, state of Michigan, upon the petition of John Armstrong, mentioned as the next friend of the plaintiff in the above-entitled cause, as more fully and at large appears by the files and records of said probate court in the matter of the estate of said William Dieffenbacker, which said files and records are in evidence in this cause, and are hereby made a part of these findings; by the terms of which last will and testament the said William Dieffenbacker gave and bequeathed to his son, Henry Dieffenbacker, and wife, Elizabeth, the use, control, and interest of the land above described, during their life-time, or the life-time of either of them; and at their death, or the death of both said Henry and Elizabeth, said land was to go to the children of said Henry Dieffenbacker, or their heirs, forever.

"Third. That the children of said Henry and Elizabeth Dieffenbacker were Elva E. Dieffenbacker and Charles Dieffenbacker, the defendant in the above-entitled cause.

"Fourth. That the said Henry and Elizabeth Dieffenbacker held the possession of said lands and premises under and by virtue of said will, and occupied the same during their respective lives, residing in what was designated as the old house, on the east half of the 50 acres before described; and, after the death of said Henry, the said Elva and her mother, Elizabeth, continued to live in and occupy said old house, in which house the said Elva died.

"Fifth. That the said Henry died about the year A.D.1870. The said Elva E. died May 4, 1880, and the said Elizabeth died August 20, 1881, or about 15 months after the death of said Elva.

"Sixth. That subsequent to the death of said Henry, and on July 22, 1879, the said defendant, Charles Dieffenbacker, and his wife conveyed, by quitclaim deed, to the said Elva Dieffenbacker, all their interest in the 20 acres of said property lying north of the highway, described as W. 1/2 of S.W. 1/4 of S.W. 1/4 section 5, town 6 S., of range 3 E., and on the same day the said Elizabeth Dieffenbacker also conveyed to said Elva, by her quitclaim deed, all her life-interest in said 20 acres.

"Seventh. That the said Elva died seized, in fee-simple absolute, of the above-described 20 acres, and of an undivided one-half (1/2) interest in the 50 acres before described; her brother Charles, the above-named defendant, being seized of the other undivided one-half of said 50 acres, the whole being subject to the life-interest of the said Elizabeth Dieffenbacker, their mother.

"Eighth. That the said Elva E. Dieffenbacker died on May 4, 1880, as aforesaid, testate, leaving a last will and testament, in which she appointed Linus Van Deusen her executor, he accepting and entering upon that trust; which said last will was admitted to probate in the probate court of Lenawee county, Michigan, on the twenty-first day of June, A.D.1880, as more fully appears by the files and records of said probate court in the matter of the estate of Elva Dieffenbacker, deceased, (which said files and records are in evidence in this cause, and are hereby made a part of these findings;) by the terms of which said will, after providing for the payment of all her just debts and funeral expenses by her executor, and after giving her organ to her cousin, Mariam R. Morford, the plaintiff herein, she gave her mother a life-estate in her property, with a contingent power of sale, as follows: 'I give and devise to my mother, Elizabeth Dieffenbacker, all the rest, residue, and remainder of my property of which I shall die seized, for and during

...