Wolf v. Troxell's Estate

• Decision Date: 10 February 1893
• Citation: 54 N.W. 383,94 Mich. 573
• Parties: WOLF v. TROXELL'S ESTATE.
• Court: Michigan Supreme Court

54 N.W. 383

94 Mich. 573

WOLF v. TROXELL'S ESTATE.

Supreme Court of Michigan

February 10, 1893

Error to circuit court, St. Joseph county; Noah P. Loveridge Judge.

Action by William A. Wolf against the estate of Reuben F. Troxell deceased. Judgment for defendant. Plaintiff brings error. Reversed.

Wm. E. Walsh, (Harry F. Chipman and Henry C Loveridge, of counsel,) for appellant.

Hugh P Stewart and Charles A. Sturges, for appellee.

HOOKER C.J.

The claimant was owner of four promissory notes executed by decedent. Appealing from their disallowance by commissioners, he met with defeat in the circuit court, and brings the case here on bill of exceptions. The defense made below was that the notes were given to prevent a prosecution of decedent's son for embezzlement. The will of the decedent was introduced in evidence on behalf of the defendant, against objection. The only apparent object of the introduction was to get before the jury the fact that decedent gave his son no share of his estate. This will was executed several years before the transaction in controversy, and might lead to the inference that the son was wayward, and troublesome to his parent. It should not have been admitted.

Plaintiff's sixth request was as follows: "A note given to settle an embezzlement or a shortage of an agent is valid and good, if it was given to settle the indebtedness or shortage, and if there is no agreement to stifle the prosecution for the embezzlement." Under the facts of this case, no question of deceit being involved, this was a proper request, and should have been given.

In the charge undue prominence seems to have been given to the alleged threats to prosecute if decedent did not give these notes. Such threats were properly admitted as tending to show the giving of the notes upon a promise not to prosecute. But although the court instructed the jury that, "from all the evidence, they must determine whether the notes were given to settle a criminal prosecution threatened against the son, or whether they were given in settlement of a just claim owing by the son," etc., the further instruction was given, that, "in order to defeat the notes, you must find that they were procured from the defendant by threats or intimidations; that, if not given, his son would be prosecuted upon a criminal charge." And again: "If he gave the notes voluntarily, or relying upon such an arrangement, [i. e. that the son should pay them,] it would be immaterial whether threats were or were not in fact made. To make the threats material, you must believe that the notes were given because of them." And again: "If you believe that the notes were obtained by such threats of criminal prosecution, then the burden of proof would be shifted to the plaintiff, and it would lie with him to show, by a fair preponderance of evidence, that he was a bona fide purchaser of the notes." It is plain that a note given upon a promise to compound a felony is void, whether it is made upon the solicitation of the maker of the note, or by reason of the threats of the payee or his agent. On the other hand the notes may be valid if no such promise to forego prosecution is involved, although threats to prosecute are made, and induce the making of the...