3. EVIDENCE (3 436*)-PAROL EVIDENCE TO | have been somewhat in doubt as to how far VARY TERMS OF INSTRUMENT.

Where, in an action to set aside a deed, mental incapacity and undue influence are charged, testimony of declarations made by the grantor that the defendant had agreed to give him a contract providing for his support during life were properly admitted to show the mental

the mental capacity of the deceased. advancing years and bodily ills had affected Certain facts, however, appear to be undisputed. He was about 75 years old. His habits were not of the best, and he was suffering from the inroads of disease. He lived only about two months after executing the deed [Ed. Note.-For other cases, see Evidence, in question. While upon the testimony in Cent. Dig. §§ 2007, 2021-2024; Dec. Dig. this record it would be difficult to say that 436.*]

state of the grantor at the time of the execution of the deed in question.

Appeal from Circuit Court, Barry County, in Chancery; Clement Smith, Judge.

Action by Matilda Noban against Dell Shoup. From a decree for plaintiff, defendant appeals. Affirmed.

Complainant and defendant are both children of Jeremiah Shoup, who died October 14, 1910. They are his sole heirs. On July 29, 1910, he deeded to the defendant his farm of 26 acres for a nominal consideration of $1. This farm constituted all the real estate he owned, and was worth about $1,200. As a further consideration defendant was to pay to complainant upon the death of the father the sum of $200. The father reserved a life estate in the land. The bill is filed to set aside this deed upon the ground that at the date of its execution Jeremiah Shoup was mentally incompetent to execute it, and that the same was procured by fraud and undue influence. The learned circuit judge before whom the case was tried filed a written opinion in which he says: "I am of opinion from the proof that the deed in question was either obtained by misrepresentation, deception, and undue influence, or, if not that, that Jerry Shoup was not mentally competent to understand the

*

I am

nature of the act he did.
without doubt that this deed ought not to
stand, and that complainant is entitled to
the relief she seeks by her bill." A decree
was entered in accordance with this opin-
ion, from which defendant appeals.

Argued before MOORE, C. J., and MCAL-
VAY, STEERE, BROOKE, BLAIR, STONE,

and OSTRANDER, JJ.

Thomas Sullivan and Arthur E. Kidder, of Hastings, for appellant. Colgrove & Potter, of Hastings, for appellee.

BROOKE, J. (after stating the facts as above). It would serve no good purpose to set out the testimony pro and con contained in this rather voluminous record. Many witnesses were sworn, and, while some were confident that at the time the deed was executed Jeremiah Shoup was not possessed of sufficient mental capacity to understand and appreciate the character of his act, others were equally certain that at the time his mind was unaffected.

[1] After listening to all the testimony, the learned trial judge himself seems to

Shoup was mentally incompetent at the time he executed the deed, there is, we think, little doubt that his mental condition was far from normal. In Jacox v. Jacox, 40 Mich. 473, 29 Am. Rep. 547, this court said: "The condition of unsoundness thus distinguished by common observers is recognized tion. It is not required that it should come as adequate to justify equitable investigafrom medical experts that the person was insane, or from those not experts that in their view he was crazy. In case it appears from the facts that there was mental disorder, but not of a high degree or far advanced, it then becomes material to inquire into the nature of the transaction and the influences leading to it. And if the circumstances disclose that the person under the infirmity, whether through choice, accident, or otherwise, was as matter of fact for the time being in the place of ward of the other party, or was by his own consent, however brought about, in a state of submission to the judgment or opinion of the other, a presumption will arise adverse to the justice and equity of the bargain, and the bargainee will be required to show that no advantage was taken, and that in itself the arrangement was not only suitable, fair, and conscientious, but one expedient under the circumstances and conducive to the interests of the other."

This record discloses no reason why the father should have deeded to the defendant

all the estate he had in the world (with the exception of a very small amount of personal property), to the practical exclusion of his only other child, the complainant. The value of the life estate reserved, regarded as a means of support for the old man in his last days, was practically nothing. The record is replete with testimony tending to show that Jeremiah Shoup regretted his act almost immediately after he made the deed. It seems to us immaterial whether he was induced to make the deed because mentally incompetent to understand its import, or for the reason, as he claimed, that defendant had agreed to give him an agreement to maintain him during the balance of his life. Neither view would help the position of the defendant. The situation of the father, his extreme age, and his condition, both mental and physical, were such as to impose upon the son the obligation to guard most carefully that father's interests, and to abstain

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

from driving any bargain of advantage to relations of the parties, and their dealings with himself with him. each other with reference to the agreement. and Tenant, Cent. Dig. 88 1360-1362, 1379[Ed. Note.-For other cases, see Landlord 1387; Dec. Dig. § 331.*]

[2] Wherever a contract is entered into with an aged and infirm person to be enforced after death, to the disinheriting of lawful heirs, such contract should be regarded with grave suspicion and close scrutiny, and should be permitted to stand only when established by the strongest evidence. Shakespeare v. Martin, 72 N. Y. 403.

[3] It is contended by appellants that testimony of declarations made by Jeremiah Shoup to the effect that defendant had agreed to give him a contract providing for his support was improperly admitted-citing Van Fleet v. Van Fleet, 50 Mich. 1, 14 N. W. 671, Tolbert v. Burke, 89 Mich. 132, 50 N. W. 803, Coleman v. McGowan's Estate, 149 Mich. 624, 113 N. W. 17, and Bettinghouse v. Bettinghouse, 156 Mich. 169, 120 N. W. 617. While it is not necessary to consider this testimony to reach the conclusion that the deed should be set aside, we are of opinion that, where mental incapacity and undue influence are charged, such testimony is admissible as tending to show the mental state of the grantor at the time of the execution of the deed in question. Haines v. Hayden, 95 Mich. 332, 54 N. W. 911, 35 Am. St. Rep. 566; Bush v. Delano, 113 Mich. 321, 71 N. W. 628; Wigmore on Evidence, § 1738. The judgment is affirmed.

MOORE, C. J., and STEERE, MCALVAY, and STONE, JJ., concurred with BROOKE, J.

OSTRANDER, J. (concurring). I find testimony which satisfies me that the grantor was incompetent to make the disposition of the property complained about. BLAIR, J., being ill, took no part in the decision.

LAMOREAUX v. EGGLESTON. (Supreme Court of Michigan. July 11, 1912.) 1. CONTINUANCE (§ 51*) - DISCRETION COURT.

OF

Appeal from Circuit Court, Kent County, in Chancery; John S. McDonald, Judge. Action by Ambrose D. Lamoreaux against Melvin Eggleston. Judgment for defendant, and complainant appeals. Affirmed.

Argued before MOORE, C. J., and STEERE, MCALVAY, BROOKE, STONE, and OSTRANDER, JJ.

Adsit & Danhof, of Grand Rapids, for appellant. Rodgers & Rodgers, for appellee.

OSTRANDER, J. The bill of complaint was filed September 28, 1908, was answered by defendant, and a replication to the answer was filed November 24, 1908. An amended answer asking for affirmative relief was filed October 21, 1909. The record does not make very clear what was thereafter done beyond this, that an injunction was granted, and was later, and on October 12, 1908, modified upon the motion of defendant to dissolve it.

[1] At a session of the court held September 22, 1911, the cause came on for hearing in open court as in a suit at law, and thereupon counsel for complainant moved the court for a continuance. In support of the motion, the certificate and affidavit of a physician and the affidavit of one of the solicitors for complainant were presented. The court inquired if the complainant could be ready to proceed at the next term, and was answered that no one could tell whether he would or would not be prepared, but that it was the opinion of his counsel that he was mentally incompetent. From the colloquy which followed it appears that certain facts were accepted by court and counsel as true. The court stated, among other things, that the showing as to complainant's condition was sufficient to support the conclusion that he was not fit to come into court, but that the cause had gone over from term to term on complainant's showing of a similar condition, and there was nothing to indicate an improved condition in the future. Upon the suggestion of complainant's counsel that a guardian for complainant should be appointed, the court offered to make the appointment if a suitable person was named as guardian. Counsel declined to suggest the name of any person. Thereupon the cause proceeded. Counsel for complainant stated they had nothing to offer. Defendant produced testimony. A decree was entered dismissing the bill, and 2. LANDLORD AND TENANT (§ 331*)-RENTgranting relief under the answer and crossING ON SHARES-ACCOUNTING-RECOVERY. In a suit for an accounting between a land- bill. The amount decreed to be due defendlord and a tenant under a farm lease giving ant from complainant was $79.12. Defendeach party a share in the produce of the farm. ant was awarded costs. Complainant has it was not error for the court to allow items for borrowed money and a mutual account not appealed, and urges here that in proceeding growing out of the agreement, but out of the to a hearing the court abused discretion.

Where a case had been continued several times on account of the mental incompetency of complainant, and there was nothing to indicate an improvement in his mental condition in the future, the refusal of the court to grant a further continuance to permit the appointment of a guardian was not an abuse of discretion; since, so far as complainant's case depended on his own testimony, the appointment of a guardian would not have aided him, and the testimony of others was as available without a guardian as with one.

[Ed. Note. For other cases, see Continuance, Cent. Dig. 69, 79, 85, 87, 88, 118, 128, 130, | 132, 135; Dec. Dig. § 51.*]

Defendant entered into possession of the

that time should have been allowed for the selection and appointment of a guardian, | land and cropped it for the year 1908. The and that upon the merits the decree is not warranted by the pleadings and proofs. There is no merit in the contention that a further continuance should have been ordered. It appears that complainant was competent to begin the suit. His infirmity came upon him on or before October 21, 1909, when he was suffering from paralysis, and after which time his condition became gradually worse. Assuming that he was wholly incompetent to do business, or to testify as a witness, and that he would never be in better health, the conclusion is that, in so far as his case depended upon his own testimony, it must inevitably fail. In so far as it depended upon the testimony of others, no good reason was given for not presenting the available testimony, with or without the intervention of a guardian. The defendant should not have been obliged, for an indefinite additional period, to hold himself in readiness to try an issue tendered by the complainant.

The litigation arose out of relations created by an oral agreement, stated in the bill as follows: "The said defendant should put in all the crops on said farm for the season of 1908; that defendant should have the use of one team of horses, the use of two cows, the use of the barn excepting such space as was reserved for the use of your orator, and the use of all the agricultural implements and tools in and upon said farm, and that he should also have the use of the house, excepting such rooms as were reserved to your orator; that said defendant should perform and pay for (if necessary) any and all the manual labor in sowing, cultivating, and harvesting the said crops, and to furnish one half of the seed that was to be used for cropping the said land for the said season, and that the other halt of said seed was to be furnished by your orator; that for and in consideration of the said work and labor of the said defendant in and upon the said farm the said defendant and your orator were each to have one-half of all the crops raised on said farm during the said season, excepting the oat and hay crop, which your orator charges was to be divided as follows: One-third of said oat and hay crop to belong to said defendant, and two-thirds of said oat and hay crop to belong to your orator, that said defendant was to care for, keep, and provide at his own expense the necessary food for the said team and cows, and that the fruit raised on said farm was to be equally divided between said defendant and your orator, that your orator at the time of the making of said agreement was the owner of some bees and chickens on said farm premises, which were not covered by said agreement, but remained the exclusive property of your orator during the life of said agreement."

bill prays, among other things: "(b) That said defendant fully set forth a true and just account of all his acts and doings in respect to said agreement, and that an account may be taken under the direction of this honorable court of all and every of the said seed, materials, cash, and labor furnished by your orator at the request of the defendant. (c) That the several sums of money so found to be due to your orator by or from the said defendant, if any, be declared a lien upon the said standing corn and potatoes, and that the said corn and potatoes may be sold under the direction and order of this court, to satisfy the said lien, rendering the surplus, if any, to the said defendant. (d) That the said agreement may be dissolved by the said court. (e) That the writ of injunction may be issued out of and under the seal of this honorable court, directed to the said defendant, and restraining him from in any way selling or disposing of the said corn and potatoes, and from interfering with and molesting the said complainant in the use and enjoyment of his said premises as hereinbefore set forth, and particularly from threatening and committing any injury or violence to the person of said complainant." The modified injunction required defendant "to absolutely and entirely desist and refrain from selling, disposing, or using the share belonging to said complainant of the corn and potatoes raised and grown on the premises described in said bill of complaint during the year 1908, said share to be determined and said crop divided from time to time as the same shall be harvested, and from plowing and preparing said land and putting in crops for the season of 1909, and from interfering with or molesting the said complainant in the use of his said premises, and particularly from threatening to and committing any injury or violence to the person of said complainant until the further order of this court in the premises." In his answer defendant stated the agreement of the parties as follows: "That said defendant was to have possession of the farm hereinbefore described, and was to cultivate the same in a good workmanlike manner during the season of 1908; that each of the parties hereto was to furnish one-half of all seeds that was sown or planted upon said farm during said season, and that each of the parties hereto was to have one-half of all crops grown upon said farm during the season of 1908, including fruit grown thereon, with the exception of hay, twothirds of which was to be delivered to said complainant and one-third was to be the property of this defendant, and by the terms of said agreement said complainant was to furnish to this defendant, free of charge, three horses, and all the necessary farming tools to properly cultivate said farm, and also

furnish the use of two cows, free of charge. and do complete justice by ordering payThe said complainant also reserved a portionment." of the house which he occupies, and also a portion of the barn which he has occupied." He prays that an accounting may be had of all of the acts and doings of the complainant with respect to said agreement and with respect to all crops, fruits, and produce grown upon the land under said agreement, and of all seed, materials, cash and labor furnished by defendant or by complainant in relation thereto, and that defendant have a decree against complainant for all moneys found to be equitably due him under or be-1. cause of the said agreement and on account of the failure of complainant to fulfill any part of the same.

A.

Ann Van Dyke, as consideration for claim- | cross-examination she testified: "Q. Did she ant's undertaking to care and provide for tell your grandmother when she was going and caring and providing for decedent as to leave that $1,000 to your mother? long as she lived." In directing the verdict When she got through with it herself. Q. the trial judge said: "The claimant is not When she died? A. Yes, sir. Q. That is, if seeking to recover the value of the services she had enough money left when she died rendered, but it is on an express contract. she was going to leave your mother $1,000? I think there is a total failure of A. Yes, sir. Q. Is not that what she said? proof to show any express contract on the A. Yes, sir. Q. But she did not say how part of the deceased which was acted on by she was going to leave it, or whom she was the claimant, and no evidence showing, or going to leave it with? A. Not while I was tending to show, that the mind of deceased around. Q. And she thought your mother and the mind of the claimant came together had been very kind to her? A. Yes, sir. Q. on that proposition." If there was testi- Did she say that? A. Yes, sir. Q. For her mony for claimant (none was offered on the kindness and feeling toward her that she part of the estate) tending to prove, on the was going to leave this $1,000 to her? A. one hand, an agreement to pay claimant Yes; and for the work she had done. Q. $1,000 for the services to be rendered, and, And for the kindness? A. And for the work on the other hand, an agreement on the part that she was to do the rest of her life. Q. of claimant to perform the services for $1,- And for her kindness? A. Yes, sir. Q. And 000, then it was error to direct a verdict in that when she died that she was going to favor of the estate. leave her $1,000. A. Yes, sir. Q. But she did not say whether she was going to leave it by will, or with Father Byrne, or how she was going to do with it? A. Not in my hearing. Q. Did she say as to whom else she was going to leave any money to? A. Yes, sir. Q. How? A. Yes, sir. Q. Now, who else did she say she was going to leave any money to? A. To the Little Sisters of the Poor. Q. How much did she say she was going to leave to the Little Sisters of the Poor? A. About $200. Q. And who else was she going to leave some to? A. She was going to leave Father Byrne $500 to read masses. Q. Five hundred dollars to Father Byrne to read masses, and who else? A. She was going to give her niece and nephew, James and Marie Manzer, some. She didn't mention any amount. Q. James and Mary Manzer? A. Yes, sir. Q. She was going to leave them some? A. Yes, sir. Q. Who else was she going to leave any to? A. My mother. Q. And she was going to leave your mother how much? A. One thousand dollars." No other witness testified to the purpose or intention of deceased in the premises, excepting the husband of claimant. He testified that in going to Mrs. Van Dyke at Grand Rapids, and talking with her concerning her removal to Parnell, and in learning her wishes, he was representing his wife, was sent by her, and was her agent. In offering the husband's testimony, counsel for claimant stated that it was not offered to establish a contract, but as corroborative of other evidence relative to the contract. I see no force in the distinction made by counsel.

[1] The claimant is a niece of the deceased. She is living with her husband in Vergennes township, about three miles from Parnell, in Grattan township, in the same county. Ann Van Dyke lived in the city of Grand Rapids, was more than 80 years old, a communicant in the Catholic Church, and had once lived in Parnell. The testimony tends to prove that she was somewhat infirm. She communicated her desire to return to Parnell to a niece, not the claimant, saying she wanted to go there, get a house, and be near the church. This niece communicated her desire to claimant, who arranged with her husband to see Mrs. Van Dyke, and he did see her. Mrs. Van Dyke moved, or was moved, in July or August, 1903, first to the home of claimant, where she remained about two weeks. She then occupied a room in a house in Parnell, where she lived alone, and where she died January 2, 1904. There is testimony tending to prove that claimant examined, cleaned, and repaired the belongings of the deceased, cleaned and arranged her room at Parnell, carried provisions to her there, visited her about once a week, doing her washing, which she took to her home. The husband of claimant hauled wood for her, splitting it and carrying it to her room. A daughter of claimant, 17 years old when the cause was tried at the circuit in May, 1911, testified that she heard deceased say to witness' grandmother, a few days after deceased left Grand Rapids, "that my mother was working hard and cleaning her things up for her to move them up to Parnell, and that she was going to give her $1,000 to pay for it. She said that she would give my mother $1,000 for taking care of her the rest of her life and for moving her to Parnell, and taking care of her the rest of her life, and providing for her. She said, if she ever became too feeble to take care of herself, she was coming back to live with my mother." On

If as agent of his wife, he had made a contract with Mrs. Van Dyke, the contract could not be proved by his testimony. 3 Comp. Laws, § 10212, as amended by Act No. 30, Public Acts of 1903.

[2] But whether he was or was not the agent of his wife it is not apparent, and it is not explained how claimant could, out of her own resources, care and provide for Mrs.