Summary
In Peisner v Lowman, 363 Mich. 320, 323; 109 N.W.2d 923, 925 (1961), a guardian's action to set aside a deed, the trial judge's order granting the prevailing party a $500 legal fee was modified to $30, the amount authorized by court rule.
Summary of this case from State Farm v. AllenOpinion
Docket No. 36, Calendar No. 48,749.
Decided June 28, 1961.
Appeal from Wayne; Weideman (Carl M.), J. Submitted April 7, 1961. (Docket No. 36, Calendar No. 48,749.) Decided June 28, 1961.
Bill by Balfour D. Peisner, guardian of the estate of Nellie Kay Taylor, mentally incompetent, against Earl Lowman, Nell Lowman, and Lula Norman to set aside deed to summer cottage. Bill dismissed. Plaintiff appeals. Affirmed as modified. Penalty assessed for inadequate presentation in brief and appendix.
Balfour D. Peisner, in propria persona, as guardian.
William J. McBrearty ( Patrick J. Keating, of counsel), for defendants.
Plaintiff, as guardian of the estate of an elderly lady now 85 years old, Mrs. Taylor, filed a bill of complaint to set aside a deed to a summer cottage at Higgins lake which she had executed to defendants. Aside from 2 grandchildren, the defendants (2 nieces and a nephew-in-law) were Mrs. Taylor's closest relatives. The property was valued at between $15,000 and $30,000. The consideration, over and above the family relationship, was an agreement to maintain the property, pay taxes, and take care of the old lady in case of need. Mrs. Taylor retained a life interest in the property. The balance of Mrs. Taylor's estate totaled between $90,000 and $100,000.
The bill of complaint alleged mental incompetence, fraud, and undue influence. The circuit judge heard testimony from both sides and entered an opinion holding that none of these allegations had been proved.
On review de novo we also find that plaintiff's proofs failed to establish these charges. There is not a line of testimony of actual fraud or undue influence. And the proofs relied on by plaintiff pertaining to mental incompetence are dubious also.
On the contrary, there is proof of execution of the deed and agreement and of Mrs. Taylor's mental competence when she executed them. There is proof also that Mrs. Taylor had planned for a long time for the nieces to have this property and that she had decided upon this conveyance and agreement on the advice of an old and trusted friend — totally unrelated to defendants.
Appellant relies strongly upon Connor v. Harris, 258 Mich. 670, 679, 677:
"It may be stated as settled law that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside."
"The grantor was peculiarly under the care, control, and domination of defendant, who stood in a fiduciary relation to her, and obtained, without consideration, a large amount of property from grantor. Under such circumstances the burden of proof is upon defendant, to show the fairness and good faith of the transaction."
Appellant claims that under the facts in this case, even if he did not carry the burden of proof as to fraud, he didn't need to; that the burden was on defendants.
We do not read the agreement in this case as so lacking in consideration or the relationship of the parties to be such as to invoke the Connor rule. This record does not show that defendants had any control over Mrs. Taylor. Defendants were logical objects of Mrs. Taylor's bounty. She retained a life estate in the property and there was good consideration for the fee. On these facts, we find no warrant for holding that the burden of proof shifted from plaintiff to defendants.
Appellant also disputes a $500 legal fee ordered by the circuit judge for defendants' counsel. The controlling rule (Court Rule No 5, § 6 [1945]) authorizes $30. The order must be modified in this regard.
Appellees call the Court's attention to obvious deficiencies in appellant's brief, requiring preparation and printing of a separate appendix. Under the provisions of Court Rule No 70, § 5, and in the particular and simple circumstances of this case ( cf. Greenough v. Greenough, 354 Mich. 508; Harden v. Widovich, 359 Mich. 566, 361 Mich. 422), appellees are allowed $250 damages against counsel for plaintiff. Daley v. Gruber, 362 Mich. 366.
See 347 Mich xxx. — REPORTER.
Affirmed as modified. Costs to appellees.
DETHMERS, C.J., and CARR, KELLY, SMITH, BLACK, KAVANAGH, and SOURIS, JJ., concurred.