VanDercook v. Kurtz, 60

Decision Date11 March 1941
Docket NumberNo. 60,January term.,60
Citation297 Mich. 87,297 N.W. 82
PartiesVANDERCOOK v. KURTZ et al.
CourtMichigan Supreme Court


Suit in equity by Roy Vandercook against Otto C. Kurtz, administrator of the estate of Esther M. Vandercook, deceased, and others, for specific performance of an alleged oral contract to give or bequeath real property. From a decree dismissing the bill of complaint, plaintiff appeals.


Appeal from Circuit Court, Monroe County; Clayton C. Golden, judge.

Argued before the Entire Bench.

Oliver J. Golden and William H. Fallon, both of Monroe, for appellant.

Edgar G. Gordon, of Monroe, for appellees.

CHANDLER, Justice.

This is a suit in equity for specific performance of an alleged oral contract to give or bequeath real property.

It is claimed that Esther M. Vandercook, deceased, entered into an oral agreement with plaintiff, her son, to leave the farm she owned to him if he would live with her, take care of her and work her farm during the rest of her natural life. The agreement was alleged to have been made in 1926, and from then until her death in March, 1940, plaintiff lived with his mother and worked the farm. Mrs. Vandercook died intestate and this suit was brought against her administrator and heirs. The circuit judge found there was not sufficient proof of the alleged contract and entered a decree dismissing the bill of complaint. It is from this decree that plaintiff appeals.

Like most cases of this nature, the only question involved is one of fact. The principles of law applicable are too elementary to need citations. Such oral agreements must be proved by clear and convincing evidence. The testimony as to declarations made by the deceased will be closely scrutinized and great weight will be placed on the findings of the trial judge who heard and could see the witnesses.

The testimony offered by plaintiff and defendants was conflicting, and it would be of no benefit to restate it all here. It is often difficult to secure proof in this type of case because of the statute barring testimony of facts equally within the knowledge of the deceased. It closes the mouth of the plaintiff, and such agreements are not usually made known to third parties. But, nevertheless, it must be proved and when facts inconsistent with plaintiff's allegations are shown they will readily negative the claim. As pointed out by the trial judge, plaintiff's own conduct after the death of his mother throws the greatest doubt on the existence of the alleged oral contract. If such an agreement had in fact existed, the natural thing for plaintiff to have done would have been to assert his claim when the administrator talked with him about the disposition of the farm.

This plaintiff did not do. The record discloses that after defendant Kurtz had been appointed administrator of decedent's estate, he went to the farm and talked with plaintiff about leasing the farm, and...

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3 cases
  • Waterman v. City of Detroit
    • United States
    • Michigan Supreme Court
    • March 11, 1941
  • Sunday v. Leverse, 77.
    • United States
    • Michigan Supreme Court
    • June 27, 1947 clear and convincing evidence, as the result of which plaintiffs are not entitled to the relief they seek herein. Vandercook v. Kurtz, 297 Mich. 87, 297 N.W. 82;Kerns v. Kerns, 303 Mich. 23, 5 N.W.2d 552. This does not preclude plaintiffs from pursuing any other method, if there is any, ......
  • Minasian v. Boyce, 31
    • United States
    • Michigan Supreme Court
    • September 8, 1954
    ...had not. The burden is always upon the plaintiff in such cases to establish the agreement by clear and convincing proofs. Vandercook v. Kurtz, 297 Mich. 87, 297 N.W. 82. This burden is not lessened in any way by the statute which bars the testimony of facts equally within the knowledge of t......

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