Morris v. Fulcher
| Decision Date | 14 October 1954 |
| Docket Number | No. 53,53 |
| Parties | Wayne MORRIS, and Ellis J. Bowler, Executor of the Estate of Charles S. Morris, Deceased, Plaintiffs and Appellants, v. Lucy S. FULCHER; Shiawassee County Bank, a Michigan Banking Corporation; Vernon State Bank, a Michigan Banking Corporation; and Ford Anthony, Executor of the Estate of Lucy S. Fulcher, Deceased, Defendants and Appellees and Cross-Appellants. |
| Court | Michigan Supreme Court |
Milton G. Schancupp, Owosso, for Wayne Morris.
Ellis J. Bowler, Durand, for Estate of Charles S. Morris, deceased.
Gerald J. McClear, Owosso, for Iva S. Wright and Ford Anthony, executor of Estate of Lucy S. Fulcher, deceased.
Before The Entire Bench.
Plaintiff Wayne Morris filed his bill of complaint against Lucy S. Fulcher, sister-in-law of his deceased father, Charles S. Morris, and others. The principal object of the bill was to require Mrs. Fulcher to account to the executor of the estate of Charles S. Morris, deceased, for moneys belonging to the estate and converted to her use by Mrs. Fulcher. The executor of the estate, Eillis J. Bowler, was made a party defendant. Also defendants are two banks in which Mrs. Fulcher deposited moneys claimed by plaintiff to have been taken by her from the safe that belonged to his deceased father, Charles S. Morris. The decree of the trial court found that Mrs. Fulcher had unlawfully and without authority, removed currency from the safe of Charles S. Morris in his residence and converted the moneys in part to her own use.
Of $17,500 currency that Mrs. Fulcher deposited in defendant banks shortly after the death of decedent, the trial judge found that $7,610 was the property of the estate of Charles S. Morris, deceased, and that the remainder of the deposits with interest belonged to Lucy S. Fulcher (now deceased). Plaintiff Wayne Morris and Ellis J. Bowler, the executor of the estate of Charles S. Morris, jointly appealed from the decree of the court, claiming in effect that the entire deposits of $17,500 plus $110 was the property of Charles S. Morris, and further, that Lucy S. Fulcher also removed and converted $940 from the pocketbook of Charles S. Morris unlawfully and without authority, and further claim that the court was in error in adjudicating that $10,000 of the deposits made by Mrs. Fulcher in the two banks was the property of Mrs. Fulcher.
The defendant, Lucy S. Fulcher, died before the entry of the final decree in the lower court. The executor of her estate cross appeals, claiming that the plaintiff's bill should have been dismissed, and that the decree of the trial court awarding to plaintiff $7,610 of the money deposited by Mrs. Fulcher was erroneous.
Charles S. Morris, deceased, had a son, plaintiff Wayne Morris, the sole residuary devisee and legatee under his will. After a divorce and in 1916, deceased married Jennie Bennett, whose sister Lucy S. Fulcher, the defendant in this case, came to live with them, Charles S. Morris and wife, and lived in their house continuously until after the dath of Charles S. Morris. Mrs. Charles S. Morris died on January 25, 1950. Mrs. Fulcher continued to live in the same house and was housekeeper for Charles S. Morris, deceased, until he died about nine months later, October 2, 1950.
Charles S. Morris had been in the undertaking business for several years and about November 1, 1945, sold his funeral business for $10,000 to Ford Anthony, who succeeded in the undertaking business and who is now also the administrator of the estate of Lucy Fulcher. The real estate of Charles S. Morris was appraised at $44,000, personal property at $9,571.56. The inventory does not include the $17,500 claimed to have been abstracted by Lucy Fulcher from Mr. Morris' safe.
It is the claim of the plaintiff that upon Mr. Morris being stricken with his final illness and removed practically unconscious to the hospital, Mrs. Fulcher then being remaining in sole charge of the house, took from his safe, $17,500 and from a pocketbook in his clothes, $940.
On or about December 27, 1950, Mrs. Fulcher deposited in the names of herself and niece with the Shiawassee County Bank of Durand, Michigan, $7,500. It was all in rolls tied up with string, $1,000 in each bundle excepting one. It was all in $10 and $20 bills with the exception of possibly two $5 bills and one $50 bill.
On January 2, 1951, Mrs. Fulcher deposited in the names of herself and niece, $10,000 in the Vernon State Bank. The money was rolled up and had strings and rubber bands around it, the bills were in denominations of a few 5's, 10's, mostly 20's and a few 50's. She actually brought to this bank for deposit $10,110 which was $110 more than she supposed was contained in the rolls of bills she brought there. On being informed of this by the bank teller, she retained the extra $110.
The niece disclaims all knowledge of the making of the deposits.
Mrs. Fulcher testified that the moneys she deposited in these two banks were all her own moneys. She claimed that she had this $17,500 hidden in the Charles Morris house, hidden 'up in our bathroom behind the bathtub in a deep drawer and long drawer which shoved in back in under the attic steps.' The tin box in which she said she kept the bills was 9 3/4 inches long, 5 inches wide and 2 1/2 inches deep. However, there seems to be no dispute about the testimony of witness Dickey in this particular, that the box could not have contained the amount of $17,500 of money in the denominations described by the tellers of the two banks that received it from Mrs. Fulcher, so that her testimony that she had the $17,500 in the tin box from 1940 until the death of Mr. Morris cannot be accepted as being true.
Mrs. Fulcher testified:
The testimony is undisputed in this case that in 1928 the bills issued by the United States government as currency were larger than they have been since 1930. None of the large, old-fashioned bills were included in the deposit in either of the banks. All the bills deposited by Mrs. Fulcher in the banks were of the smaller, newer size, so that her testimony that part of the money she deposited in the bank was bills that she had had in her possession since 1928 is incorrect and cannot be accepted as being true.
About the time of the death of Charles S. Morris, Mrs. Fulcher made statements that she did not know how to open the safe and was unable to explain how the safe could be opened. However, it appears from the testimony of Mr. McDivitt that about December 18 following the death of Charles Morris, Mrs. Fulcher called him there to open the safe because it was 'stuck shut.' There was nothing wrong with the combination and the trouble was that a cloth which had been put over the top of the safe had been caught in the door, crowding the door and making it hard to open. Mr. McDivitt further testified Mrs. Fulcher said she was looking in the safe and some one knocked on the door and she shut the safe and 'threw the combination.' The cloth was then caught in the door.
It otherwise further appears that Mrs. Fulcher prior to Mr. Morris' death had access to the safe. Therefore her testimony that she did not know how to open it was incorrect and not worthy of belief.
The executor of the will of Lucy S. Fulcher, appellant, claims that Mrs. Fulcher was given $6,000 by Mr. Morris, deceased. Wayne Morris, plaintiff, and Ellis J. Bowler, the executor of the estate of Charles Morris now joined as plaintiff, claim that her testimony in that regard is barred by the statute.
Our statute, C.L.1948, § 617.65, Stat.Ann. § 27.914, is in part as follows:
'When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be...
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Fox v. Fox
...considered. In re Arnt's Estate, 237 Minn. 245, 54 N.W.2d 333; Pierce v. Fontenelle, 156 Neb. 235, 55 N.W.2d 658, 665; Morris v. Fulcher, 340 Mich. 691, 66 N.W.2d 262; Geisel v. Burg, 283 Mich. 73, 276 N.W. 904; Goodale v. Murray, 227 Iowa 843, 289 N.W. 450, 126 A.L.R. Appellant objected to......