Thorbahn v. Walker's Estate

Decision Date10 December 1934
Docket NumberNo. 75.,75.
Citation269 Mich. 586,257 N.W. 892
CourtMichigan Supreme Court


Action by Frances Thorbahn against the Estate of Charles M. Walker, deceased. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Wayne County; Allan Campbell, judge.

Argued before the Entire Bench.

L. J. McSweeney, Leo R. Schaefer, and Thomas P. Thompson, all of Dearborn, for appellant.

Derham & Derham, of Iron Mountain (George H. Anderson, of Detroit, of counsel), for appellee.

POTTER, Justice.

Charles M. Walker died intestate June 2, 1932, leaving, according to the inventory and appraisal of his estate on file in the probate court, cash in the sum of $90,780.26 and real estate appraised at $25,525. Commissioners on claims were appointed by the probate court of Wayne county. No claim was presented by plaintiff until after December 10, 1932, the date of the last meeting of the commissioners on claims. Plaintiff presented a claim dated December 17, 1932, against the estate as follows:

                ¦For breach of contract to make a will giving  ¦           ¦
                ¦claimant one-fifth of his estate upon         ¦           ¦
                ¦his death in return for moneys loaned         ¦           ¦
                ¦and services rendered to said Charles         ¦           ¦
                ¦Martin Walker and property turned over        ¦           ¦
                ¦to said Charles Martin Walker by said         ¦           ¦
                ¦Frances Thorbahn, his sister                  ¦$100,000.00¦
                ¦For moneys loaned, services rendered, property¦           ¦
                ¦turned over to said Charles Martin            ¦           ¦
                ¦Walker upon his agreement to make will        ¦           ¦
                ¦reimbursing said Frances Thorbahn by          ¦           ¦
                ¦making will in her favor, as follows:         ¦           ¦
                ¦Money loaned, and interest                    ¦$ 5,000.00 ¦
                ¦Services rendered, and interest               ¦2,500.00   ¦
                ¦Total                                         ¦$ 7,500.00 ¦

January 23, 1933, plaintiff's claim was disallowed by the commissioners on claims. February 14, 1933, a notice of appeal and bond on appeal were filed in the probate court. April 22, 1933, an exemplification from the record from the probate court was filed in the circuit court.

On the first trial of the case in the circuit court, the jury disagreed, but on the second trial plaintiff had verdict and judgment for $17,500. Defendant appeals, claiming plaintiff's claim is barred by the statute of limitations (Comp. Laws 1929, § 13984); the agreement relied upon was contrary to the statute of frauds; without consideration; the circuit court had no jurisdiction to hear plaintiff's claim on appeal from the probate court, such claim having been filed in the proceedings of the probate court seven days after the date of the last hearing on claims; the trial court should have directed a verdict for defendant; the court erred in refusing to admit in evidence correspondence between plaintiff's attorney and the commissioners on claims; the court was in error in deciding, in the absence of testimony, a 25 per cent. dividend would be paid upon the amount of money impounded in defunct banks; in charging the jury, if it found for plaintiff, to find an amount between $14,500 and $20,500, defendant contending no valid contract between plaintiff and decedent was proved; and plaintiff's proof failed to make out a case.

Plaintiff testified in her own behalf, without objection, that she received a pension of $30 a month for three or four years after her father died, and that she gave that pension to her brother Charles; she worked two years at home after she was fourteen years of age without pay, and that after two years she went to Detroit and worked in Scotten's tobacco factory about two years, perhaps a little more; she received $560 or $565 from the estates of her father and mother; she claims some of her money was used to keep the family going while she was living at home; and her brother Charles handled the money. There was other testimony on the part of her husband and son tending to sustain the agreement which she alleged in her claim.

1. The testimony upon the part of plaintiff as to matters equally within the knowledge of the deceased was improperly received (McHugh v. Dowd's Estate, 86 Mich. 412, 49 N. W. 216;Ripley v. Seligman, 88 Mich. 177, 50 N. W. 143;Harper v. Corcoran, 166 Mich. 474, 132 N. W. 106; Perkins' Evidence by Survivor, p. 199), and the administrator could not waive the provisions of the statute (Comp. Laws 1929, § 14219) by failing to object thereto.

2. Plaintiff claims $100,000 damages for breach of contract upon the part of Charles M. Walker to make a will giving her one-fifth of his estate upon his death in return for moneys loaned and services rendered to him and property turned over to him by plaintiff.

The agreement claimed was an oral agreement alleged to have been made by Charles M. Walker, deceased, in his lifetime, to leave her one-fifth of his estate both real and personal. An agreement to devise an interest in land, though founded on a precedent valuable consideration, is within the statute of frauds. Comp. Laws 1929, § 13411; Browne, Statute of Frauds (5th Ed.) § 263; Wood, Statute of Frauds, p. 405; 27 C. J. pp. 208, 209, and cases cited. This is he rule in England (Humphreys v. Green, 10 Q. B. D. 148, C. A.; Maddison v. Alderson, 8 App. Cases, 467), and in Michigan (Willard v. Shekell, 236 Mich. 197, 210 N. W. 260;Payne v. Jones, 230 Mich. 257, 202 N. W. 935).

Part payment of the purchase price will not alone take the case out of the statute of frauds. McMurtrie v. Bennette, Harr. Ch. 124; Scott v. Bush, 26 Mich. 418, 12 Am. Rep. 311;Colgrove v. Solomon, 34 Mich. 494;Murphy v. Stever, 47 Mich. 522, 11 N. W. 368.

Payment in full is not sufficient performance as will take an agreement to devise realty out of the statute of frauds. Willard v. Shekell, supra; ...

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15 cases
  • Van Sickle v. Keck, 4359.
    • United States
    • New Mexico Supreme Court
    • July 15, 1938
    ...furnished the money to buy the lot (Perry v. Neel, 126 Neb. 106, 252 N.W. 812) and erect the building thereon. Thorbahn v. Walker's Estate, 269 Mich. 586, 257 N. W. 892. [3] A court of equity will not relieve an individual from the operation of the statute of frauds, which requires that int......
  • Howland v. Iron Fireman Mfg. Co.
    • United States
    • Oregon Supreme Court
    • December 13, 1949
    ... ... * * * It ... would be an evasion of the statute if a real estate broker, ... assuming to act under oral appointment to negotiate a sale of ... land, ... If one is invalid the ... contract is unenforceable. Thorbahn v. Walker's ... Estate, 269 Mich. 586, 257 N.W. 892. Plaintiff is bound ... by the ... ...
  • Barriffe v. Estate of Nelson
    • United States
    • Mississippi Supreme Court
    • October 2, 2014
    ...179 (1933) ; 113 W.Va. 687, 170 S.E. 179, 89 A.L.R. 1451 ; Perry v. Neel, 126 Neb. 106, 252 N.W. 812 (1934) ; Thorbahn v. Walker's Estate, 269 Mich. 586, 257 N.W. 892 (1934) ).23 See Wilie v. Brooks, 45 Miss. 542, 548 (1871) ; Cole v. Johnson, 53 Miss. 94, 99–100 (1876) (noting “[t]he requi......
  • Barriffe v. Estate of Lawson
    • United States
    • Mississippi Supreme Court
    • October 12, 2011
    ...478 (1899); Spencer v. Williams, 170 S.E. 179 (W. Va. 1933); 89 A.L.R. 1451; Perry v. Neel, 252 N.W. 812 (Neb. 1934); Thorbahn v. Walker's Estate, 257 N.W. 892 (Mich. 1934)). 23. See Wilie v. Brooks, 45 Miss. 542, 548 (1871); Cole v. Johnson, 53 Miss. 94, 99-100 (1876) (noting "[t]he requir......
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