Mundy v. Foster

• Decision Date: 26 February 1875
• Citation: 31 Mich. 313
• Court: Michigan Supreme Court
• Parties: John C. Mundy v. Leonard Foster and others. [1]

31 Mich. 313

John C. Mundy v. Leonard Foster and others. ^[1]

Supreme Court of Michigan

February 26, 1875

Heard January 21, 1875

Appeal in Chancery from Washtenaw Circuit.

Decree reversed, and the bill dismissed, with the costs of both courts.

Lawrence & Frazer, for complainant.

E Thatcher, Felch & Grant and H. J. Beakes, for defendants.

Graves Ch. J. Campbell, and Cooley, JJ., concurred. Christiancy, J. did not sit in this case.

OPINION

Graves, Ch. J.:

Without attempting to summarize all the facts set forth in the bill, some of the leading features will be mentioned. In 1837 the complainant intermarried with Minerva E. Rumsey, daughter of Henry Rumsey. They resided at Ann Arbor, and complainant and his wife lived together until her death, which occurred on the 26th of April, 1871. Her only heirs at law, as the bill states, were Melville L. and Avery B. Rumsey, sons of her deceased brother, Julius C. Rumsey.

In 1854, as is claimed, complainant owned lots nine and twelve, in block three south, of range nine east, in Ann Arbor, and proceeded to erect a brick dwelling upon them, which was completed in about two years; that the premises owed their chief value to the building, and that such value was about six thousand dollars; that whilst the construction of the building was going on, Henry Rumsey, father of complainant's wife, gave her about one thousand dollars, and that complainant expended it on the building; that Mr. Rumsey desired that this money given to his daughter should be in some way secured to her, and that complainant, conforming to this desire, first proposed to give her a mortgage on the property, but finally it was agreed between complainant and his wife, that he should convey the entire estate to her, and that she should make her will giving to complainant all her real and personal estate; that pursuant to, and in execution of this arrangement, on the 21st of July, 1854, complainant and his wife deeded the property to Barron Mundy, the father of complainant, and that the latter, by deed dated August 2d, 1854, but not acknowledged until February 26th, 1856, conveyed to complainant's wife, and that both deeds were recorded on the 8th of March, 1856; that complainant's wife, in order to carry out the agreement on her part, and in consideration of the conveyance so made to her, and on or about the time of the delivery of the last named deed, executed her will, and by the terms of it, after providing for the payment of her debts out of her personal estate, gave the rest of her personality, and all the real property of which she might die seized, to complainant in fee simple; that complainant endorsed his assent, and his wife thereupon retained the will until about the 20th of June, 1862. The complainant alleges that at that time, without his knowledge or consent, and contrary to the before-mentioned agreement, and with intent to defraud him, his wife, as he is informed and believes, destroyed said will, and executed and delivered a trust deed of the property in question. The bill then proceeds to set forth the terms of this deed, with the names of the trustees and beneficiaries. They are all named as defendants. The property was to be held for Mrs. Mundy's benefit during her life, and provision was made for the payment of her debts, the expenses of her funeral, and the cost of a suitable monument to be placed at her grave. Provision was also made to afford complainant, during his life, decent, comfortable and suitable support, with such aid as he ought reasonably to render; to pay the expense of his last sickness and funeral, and the necessary expense required in taking care of the property, and keeping it insured. It was further provided that the trustees should have a reasonable compensation for their services. The particular trust being executed, the deed declared that the trust should cease, and that the religious society named as defendant should have the remainder as a parsonage, on certain conditions for keeping the property in order, and lastly, that the school district mentioned as defendants should have the reversion.

The complainant further alleges that in 1871 he owned two lots adjoining the two deeded to his wife, and that he and his wife, in March of that year, joined in a deed to one Smith, by which they conveyed to the latter a part of one of complainant's lots, and a part of one of his wife's lots, for one thousand five hundred dollars; that three hundred dollars of this purchase price was paid down, and the balance, being one thousand two hundred dollars, was secured by bond and mortgage to be paid at a future day; that complainant, being ignorant of the destruction of the will, and the execution of the trust deed, consented that the bond and mortgage should run to his wife, which was done. And complainant alleges that his wife, in keeping from him the destruction of the will and the execution of the trust deed when this bond and mortgage were made to her, committed a fraud upon him, and he insists that these securities belong in equity to him.

The trustees having caused the building to be insured, and it having subsequently been wholly or mostly destroyed by fire, the complainant makes charges against the trustees concerning their settlement of the loss, and also charges them with neglect in not restoring the property.

The particular relief sought is, that the trust deed may be declared void; that the provisions of the will may be declared in force, and be specifically performed; that the trustees be required to surrender to complainant the property received by them under the deed, including the bond and mortgage given by Smith, and be required to pay over to complainant whatever amounts they have received on such securities; and finally, that the trustees, and the religious society and school district be compelled to relinquish and convey to complainant all their right under the deed.

The defendants answered, and among other things denied all fraud, and denied the making any agreement between complainant and his wife as set up in the bill. The defendants also claimed that complainant had recognized the validity of the trust deed, and of the trust, and had applied to the trustees for, and received from them, pecuniary assistance, pursuant to the trusts specified in the deed. And besides other matters of defense not necessary to be repeated, it was insisted that the bill did not make a case for equitable relief.

Replications having been filed, proofs were taken, and on final hearing the court, passing on the merits, decreed the particular relief prayed by complainant, and defendants appealed.

The foregoing statement shows the nature of the case, and the real basis of complainant's present demand for equitable redress. There may be room for contending that the bill is not upon its face quite consistent, but this circumstance is of no practical moment. It was not its object to affirm the trust, and thereupon insist upon its execution, or call the trustees to account for dereliction of duty, although some features would seem to have been framed upon that theory. On the contrary, it is expressly averred that the trust deed was and is wholly void, and this is alleged to be owing to the force and effect of the supposed partly executed agreement between complainant and his wife. The supposed irrevocable nature of the will is claimed to have been caused by this agreement, and the purpose of complainant is, to enforce the early transactions embracing the agreement and will, and overthrow the later and repugnant disposition depending on the trust deed. The prayer for relief proceeded on this ground, and the record shows that the case has been prosecuted and decided on the same theory. That the construction thus placed on the bill was the proper one, I have no doubt.

Adhering to this view, it is at once apparent, that whatever claim complainant can set up for relief in the case, as constituted, necessarily depends upon the alleged agreement between himself and his late wife, and whatever might be the event under legal rules if that agreement were established it is clear that unless as matter of fact such an agreement was made, his present claim is without any foundation. As his wife was confessedly the holder of the property, she was entitled to deal with it, and dispose of it in any lawful...