Proctor v. Robinson

• Decision Date: 03 January 1877
• Citation: 35 Mich. 284
• Court: Michigan Supreme Court
• Parties: Lucy Proctor v. Hiram B. Robinson and others

35 Mich. 284

Lucy Proctor v. Hiram B. Robinson and others

Supreme Court of Michigan

January 3, 1877

Heard October 25, 1876 [Syllabus Material]

Appeal in Chancery from Van Buren Circuit.

Decree affirmed, with costs against appellant.

Jacob Ferris and Hoyt Post, for complainant, argued that the mortgage having been bequeathed by the terms of the will to the complainant as a specific legacy, and she having possession thereof by consent of the executors and of the only person beside herself who had any interest therein, she held in her own right, subject only to the liability under the statute (Comp. L. 1871, § 4355) to make contribution in case of failure of assets, and that as the debts were paid and there was no ground for calling upon this legacy for contribution, her title was complete and discharged of all liability to the estate of her deceased husband; and that even if the bequest be only of a life estate to the complainant, she still has a right to the possession of the securities and to collect the same, and if need to be bring suit to foreclose, at least so long as the only other party in interest, her son, does not object; that the tender set up was not made in good faith as a tender of payment, but was made and understood as an offer to purchase, and was expressly rejected on the ground that complainant was not willing to sell the mortgage; and that defendant afterwards waived his pretended tender; and cited Potts v Plaisted, 30 Mich. 149.

Upson & Thompson and Arthur Brown, for defendants, argued that the devise of the mortgage to the complainant being for life only, and Henry H., under the will, having a vested remainder in the same, the complainant, even if the estate had been fully settled and the debts paid, had no absolute property in the mortgage or power of disposing of the same otherwise than could be made by a person having only a life estate therein Smith v. Bell, 6 Pet. 68; 2 Kent Com., 352-3; 1 Story Eq. Jur., § 604; 2 Redf. on Wills, 480-1; Dewitt v. Schoonmaker, 2 Johns. 243; Westcott v. Cady, 5 Johns. Ch., 334; Giddings v. Seward, 16 N. Y., 365; Shattuck v. Stedman, 2 Pick. 468; Monkhouse v. Holme, 1 Brown Ch., 298; Benyon v. Maddison, 2 Ib. 75; that the executors became under the will trustees of the fund during the life of complainant, and she had no right to collect the principal, the use or interest only being devised to her, and she could not discharge the mortgage: 16 N. Y., 365; 5 Johns. Ch., 334; Moffatt v. Strong, 10 Johns. 12; Covenhoven v. Schuler, 2 Paige 122; and that the executors are the only proper parties to foreclose the mortgage: Copper v. Wells, Saxton's Ch., 10; 2 Redf. on Wills, 129-30 Ch. v., §§ 7-9; that the bill proceeding on the theory that an order had been made by the probate court assigning the mortgage to complainant, which was not supported by the facts, the claim now set up, that the mortgage became complainant's by virtue of the consent of the executors, cannot be sustained, as it does not support the allegations of the bill, and for that reason complainant is not entitled to a decree on this bill; that the executors were entitled to and took possession of all the chattels, including this mortgage: Comp. L. 1871, § 4407; Albright v. Cobb, 30 Mich. 355; Hollowell v. Cole, 25 Mich. 345; that complainant and Henry H. being themselves executors, it was impossible for them to assign the mortgage to themselves as legatees, or to either of them, without violating their duty in their trust capacity; that they could give no "consent" or make any contract with either of themselves, and therefore there is nothing to which § 4355, Comp. L., can apply; and that the proofs show an absolute tender of payment, which being refused, the mortgage was thereby discharged; and that a tender to one of two executors is as effectual as if made to both: Bogart v. Hertell, 4 Hill 503.

OPINION

Graves, J.

In October, 1866, the defendant Ide executed a mortgage on certain premises in Van Buren county to one Moffit to secure the payment of five thousand five hundred dollars, with annual interest, according to the terms of five promissory notes given at the same time, the last of which was drawn payable in October, 1871. Moffit, the mortgagee, assigned the securities to one Weston, who in turn transferred them to Benjamin Proctor, the husband of Lucy Proctor. Afterwards and on September 16, 1872. Benjamin Proctor died testate, and his will was proved and allowed in the probate court of Kent county in December following. The testator appointed the said Lucy Proctor and his son Henry H. Proctor to be executors, and they were duly commissioned by the court and assumed the duties of this trust. Among the provisions of the will was one making disposition of the notes and mortgage in these terms: "First, I give and bequeath to my affectionate wife, Lucy Proctor, the mortgage I hold against Wm. S. Ide, of Van Buren county, state of Michigan, for the sum of four thousand dollars, and after her death, the residue of said mortgage and interest thereon I give and bequeath to my son Henry H. Proctor." On the 14th of November, 1870, the defendant Ide made a mortgage to the defendant Hiram B. Robinson on the premises covered by the first named mortgage, to secure two thousand dollars and interest, and subsequently Robinson claimed to have contracted with Ide in writing dated September 3, 1874, for the purchase of the equity of redemption.

In February, 1875, application was made to the probate court of Kent county for the appointment of a guardian for Lucy Proctor, on the ground of her incompetency on account of the infirmities arising from age and disease, and on the 13th of that month the court adjudged her incompetent and appointed her son John T. Proctor special guardian, and subsequently and on the second of March the court pursuant to previous proceedings again adjudged her incompetent and appointed her said son her general guardian. On the 15th of February, 1875, the present bill was filed to foreclose the old mortgage owned by Benjamin Proctor at his death and disposed of by his will as before stated. The bill averred in positive terms that the unpaid notes the mortgage was made to secure were owned and held by the ward, Mrs. Proctor, and were due and payable to her. In a subsequent part of the bill, however, it is set out that Benjamin Proctor died testate, and by his will gave the notes and mortgage to Mrs. Proctor, that the will was proved and that the probate court ordered that the notes and mortgage should be delivered to Mrs. Proctor as a specific legacy, and that the same were delivered to her accordingly by the executors. Robinson answered, and claimed that he was entitled to redeem, and that on or about September 8th, 1874, he tendered more than enough to satisfy the mortgage, and that the same was refused, whereby the lien was discharged. Proofs were taken, and in June, 1876, the court made a final decree. Foreclosure was allowed, but subject to a deduction from the principal sum claimed, and with a provision that interest should cease on the 8th of September, 1874, and that Robinson and his wife should have their costs deducted. Robinson alone appealed. As no appeal has been taken on the other side, the previous decisions of this court forbid any variation of the decree in favor of complainant.

The objections of defendant Robinson to the relief given appear to be three:

First, That the bill based the ward's title to the mortgage on or traced it through an order of the probate court setting off the mortgage as her property, and that no settlement of the estate was proved and no order setting off the mortgage to her shown, and that consequently there was a fatal defect of proof;

Second, That the securities were given by the will to Mrs. Proctor for life and remainder to Henry H. Proctor; that both were entitled, and as executors were trustees of the fund during Mrs. Proctor's life, and hence she could not sue alone;

Third, That there was a good tender as claimed in the answer, and hence that the lien of the mortgage was discharged.

The first point is so connected with considerations applicable to the second that no attempt will be made to pursue them separately. The defendant's counsel are hardly consistent in their views. In part their claim is in effect, that the statute required some order of the probate court as a preliminary to any suit to foreclose, and in part that the will fixed the right. The bequest was neither general nor demonstrative, but specific, and the right to the notes and mortgage vested at the testator's death. The gift came from him and was not dependent on any order of distribution or allotment by the probate court. The identical thing given was severed from the bulk of the testator's property by the operation of the will from his death--Ashburne v. McGuire, Howe v. Earl of Dartmouth, and notes, English and American, 2 L. C. in Eq.; Willard's Eq., ch. 7, § 6; Bac. Ab., Tit. Legacy, L, second paragraph.

The two persons named as beneficiaries were also made sole executors and passing here any question as to their mutual rights in their sole character of specific legatees, and assuming both to have an interest in that character, and then considering the relation between them in their character of executor on the one hand and their character of specific legatee on the other, it was entirely competent for them to hold the notes and mortgage as legacy instead of assets. They could not contract with themselves or sue themselves, but they could lawfully retain.--Taylor v. Deblois, post. Their possible liability to be called on to contribute in the event of failure of assets would not prevent.-- §§ 4353, 4355, 4356, C. L.; Willard's Equity, supra. ...