O'Neil v. Greenwood

• Decision Date: 01 October 1895
• Citation: 106 Mich. 572,64 N.W. 511
• Parties: O'NEIL v. GREENWOOD ET AL. WARNER v. SAME.
• Court: Michigan Supreme Court

64 N.W. 511

106 Mich. 572

O'NEIL v. GREENWOOD ET AL.

WARNER v. SAME.

Supreme Court of Michigan

October 1, 1895

Appeal from circuit court, Ionia county, in chancery; Joseph B Moore, Judge.

Separate bills by Lavalette O'Neil and Nancy Calista Warner against Levi M. Greenwood, as executor, and others, to enforce a trust. There was a decree in each case for plaintiff, and defendants appeal. Affirmed.

A. A. Ellis (Chas. P. Locke, of counsel), for appellants.

Vernon H. Smith (W. W. Mitchel, of counsel), for appellees.

McGRATH, C.J.

Lewis Willey, grandfather of Lavalette O'Neil, and the father of Calista Warner, died suddenly, May 11, 1893, aged 73 years. He had, in 1891, been troubled with la grippe. In the early part of January, 1892, he had called in a physician and in the course of that illness he was informed that he was liable to sudden death. Prior to January 29, 1892, he had conveyed to his children all of his real estate. He had three grandchildren,-Vernon and Fay Willey, sons of Lewis Bradley Willey, and Lavalette O'Neil. He had conveyed a farm estimated to be worth in the neighborhood of $4,000, to Vernon and Fay Willey. Webber & Ruel were his bankers. On the date last named, Willey called in Mr. Sherwood (who had at other times prepared papers for him) and Mr. Ruel, and in their presence opened a tin box which had been kept in the vault at the bank, and exhibited several certificates of deposit issued by Webber & Ruel, amounting in the aggregate to over $2,500, and a number of promissory notes aggregating upwards of $2,500. He then stated that he had made provision for his sons and daughters, except one daughter, Calista Warner, and had provided for the Willey grandsons, but had made no provision for Lavalette O'Neil, and desired to equalize the distribution of his property by giving to Calista Warner certificates of deposit, amounting to $1,800 and to Lavalette O'Neil notes amounting to $2,200. He then selected out $1,800 in certificates of deposit, and $2,200 in notes. A bill of sale was prepared by Sherwood, transferring to Lavalette O'Neil the notes so selected out, describing specifically said notes, which Willey executed. The notes and bill of sale were then placed in an envelope; Lavalette O'Neil's name was written thereon by Sherwood, at Willey's direction; and the envelope was placed in the tin box. The same course was pursued as to the certificates of deposit. A bill of sale to Calista Warner was prepared, executed, and, with the certificates, placed in an envelope, on which was written her name; and the envelope, with contents, was then placed in the tin box. Willey explained to both Sherwood and Ruel that he should, during his life, collect the accruing interest upon the notes and certificates, but that the principal, upon his death, was to be the property of the parties named, and in case of his death at any time the packages were to be delivered as addressed. At the same time, Sherwood prepared, and Willey executed, the discharge of a mortgage which Willey held against another intended beneficiary. Willey afterwards deposited the tin box in the bank vault. It contained other notes, certificates, and papers. Willey retained the key, and from time to time, until his death, took papers from it, and returned the same, or others, to it. He collected the interest on the notes as the same became due. At the time of his death there had been no material changes as to the notes, but, although the amount in certificates of deposit was $2,900, all were dated after January 29, 1882. Willey had talked freely, up to the time of his death, of this transaction, to Sherwood, to Mr. Warner (the husband of Calista Warner), and to others. He had taken Warner to the bank, explained to him the transaction, exhibited to him the papers, and Warner had listed the papers. On that occasion he said to Warner, referring to the notes transferred to Lavalette O'Neil: "I want you to know that these are Lavalette's. I only hold them in trust for him." On another occasion, Willey, on learning that a piece of land adjoining Warner's farm was for sale, went to the bank, and procured a draft on Detroit for $1,800, and went to Warner's residence, and suggested the purchase of the land. The owner asked more than Warner thought the land was worth, and the purchase was not made. Warner afterwards, at a forced sale of the premises, bid up to $1,800; but a higher bid was obtained, and he did not purchase. On another occasion, Willey, while at Warner's, suggested that certain improvements be made "with some of that money of yours which I have down there," but Mrs. Warner said they contemplated buying another place. When Willey procured the draft, he said to his bankers that he might not use the draft, and not to destroy the certificates. When the draft was returned, it was destroyed, and no change was made in the certificates. Three days before his death, Willey exhibited to Sherwood a memorandum book in which he had listed the notes and certificates as they then stood. To Sherwood and to others Willey had, up to the time of his death, said that he was keeping the amounts so set aside intact; that he had set aside $1,800 for Calista Warner, and $2,200 for Lavalette O'Neil, and was keeping the certificates and notes for them; that he held the notes in trust for Lavalette O'Neil; that he had given Calista $1,800. To Warner he had said: "You tell Calista that I think she had better put her money in that land. That will be a good investment." Again he said to Warner, "If I should drop off suddenly, Calista's money is there in the bank, and the banker understands it." In the list of notes set aside to O'Neil were two notes made by Lewis Bradley Willey,-one of $725, and one of $350,-held by the father. After the father's death, Lewis Bradley Willey took from the dead man's pockets his watch, his keys, and a bundle of papers. After the funeral the heirs were called in. Mr. Ruel produced the tin box from the bank. Lewis Bradley Willey produced the key. The box was opened, but the bills of sale, certificates of deposit, and notes in question were missing. Lewis Bradley Willey then produced the certificates of deposit and the notes, with the exception of the note for $725 made by himself. The two bills of sale were not produced. The pocket memorandum book which deceased carried, which, a few days before his death, he had exhibited to Mr. Sherwood, and which contained a list of the notes and certificates held for O'Neil and Mrs. Warner, was also missing. Lewis Bradley Willey was not sworn. On the Sunday before his death, Mr. Willey referred to the matter of the provision made for Lavalette O'Neil and Mrs. Warner, and stated that it was in black and white, tapping the breast pocket of his coat as he made the remark. He had evidently taken the two packages from the tin box at the bank, and had them on his person at the time of his death. It may have been done for the purpose of making the very memorandum book list to which the witness Sherwood refers.

Lewis Bradley Willey was interested in the destruction of the note, the bills of sale, and the memorandum book; and, from the statements made by him respecting the matter, it is evident that these missing papers were destroyed by him after his father's death. The case must therefore be considered as if the packages had been found, after the death of Lewis Willey, with the bills of sale and the amount of the notes intact.

This record leaves no room for doubt but that Lewis Willey, on the date named, intended to separate and set apart, and did separate and set apart, from his other property, the said notes and certificates, as the property of Lavalette O'Neil and Calista Warner. That at that time he intended to and did retain possession of said property, and appropriate to himself the income thereof. That he manifested his intention to one of his bankers and to Mr. Sherwood. That he, in effect, stated to those gentlemen that the beneficial interest in the principal sum represented by the notes and bank certificates was in Lavalette...