Peninsular Trust Co. v. Barker

• Decision Date: 15 March 1898
• Citation: 74 N.W. 508,116 Mich. 333
• Court: Michigan Supreme Court
• Parties: PENINSULAR TRUST CO. v. BARKER ET AL.

74 N.W. 508

116 Mich. 333

PENINSULAR TRUST CO. v. BARKER ET AL.

Supreme Court of Michigan

March 15, 1898

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Petition by the Peninsular Trust Company for the probate of the will of George M. Barker, deceased, contested by Silas Barker and Imogene Chappell. From an order admitting such will to probate, contestants appealed to the circuit court, where judgment was rendered on a verdict in favor of contestants and, its motion for a new trial having been denied, proponent brings error. Reversed.

Taggart, Knappen & Denison, for appellant.

Maher &amp Salsbury, for appellees.

LONG J.

October 13, 1890, George M. Barker made and executed his last will and testament, by which $9,000 was divided among certain church benevolences, $500 given to each of two of his own relatives, including his brother, and $500 each to two of his wife's relatives, and small bequests to others, the residue of his estate being given to the American Association of the Church. This will was duly probated, and, on appeal to the circuit court, the jury found in favor of the contestants, who are the nephew and niece of deceased. It appears that the testator was married in 1839. He and his wife lived together until 1889, when Mrs. Barker died. No children were born to them. During these years the parties had accumulated considerable property, though poor at the time of their marriage. In 1845 Mr. Barker purchased 40 acres of land, which is now within the corporate limits of the city of Grand Rapids. It was the rapid increase in the value of this land which brought the property of which Mr. Barker died seised. He and his wife were members of the "New or Swedenborgian Church," to which they were in the habit of making regular contributions. Some time prior to 1870 they made a special contribution of $1,000 for the support of the church educational institutions. Mrs. Barker's health had not been good for many years, she being practically helpless requiring the constant attendance of her husband, which he gave her. In 1876 she was regarded as seriously ill. At this time she was desirous that a portion of the property possessed by them should be given for the benefit of the church educational institutions. Her husband was apparently equally interested in this benevolence. In order that the gift might be made in his wife's name, he, on July 1, 1876, conveyed to her practically one-half of his property (himself drafting the deed), for the sole purpose of carrying out their mutual plan of devoting the property to church purposes. They were especially at this time interested in Urbana (Ohio) University. On the same day that the conveyance was made by Mr. Barker to his wife, he wrote the president of the university as follows: "The health of my wife is gradually failing, and she will probably leave this world at no very distant day. She has property, real estate, in her own right, which, in my judgment, is worth, at a moderate calculation, ten or twelve thousand dollars, which she intends to bequeath to the New Church, to apply towards some of their many uses. She would like very much to help the university, but wants first to see that young women have the same privilege there that men have. Now, will you be so kind as to inform us whether, in your opinion, we have any reason to expect anything of the kind," etc. The president of the university, Mr. Sewall, replied to this letter on July 5th; and, on receiving this reply, Mr. Barker drew his wife's will, giving to the trustees of the Urbana University all the lands so conveyed to her by him, and appointing the president of that university executor of the will. On July 21st following, Mr. Barker wrote the university again, saying: "Yours of the 5th inst. was duly received, and statements concerning the desires and intentions of the trustees of the Urbana University with regard to granting females equal privileges with males are quite satisfactory," etc. On January 29, 1878, Mrs. Barker added a codicil to her will, giving the life use of this property to her husband. Before her death, she and her husband had made direct conveyance of two lots to the university. At the time of Mrs. Barker's death, her husband had practically used up the whole of his own property in the care of his wife and their joint support. Mrs. Barker's will was presented to probate by the university. The heirs of Mrs. Barker contested the probate of the will, and prevailed by reason of the failure to prove by the witnesses thereto that the will was signed by Mrs. Barker in their presence and in the presence of each other. The setting aside of this will left the title of one-half of the real estate in Mr. Barker, the remaining one-half being vested in seven heirs at law of Mrs. Barker. Four of these heirs released their interest to Mr. Barker, but the three others refused to do so. In October, 1890, Mr. Barker filed his bill in Kent county circuit, in chancery, against these three heirs, asking to have the deed from him to his wife set aside, on the ground of total failure of the consideration, through the noneffectiveness of the will. The...