Caswell v. Stearns

241 N.W. 165, 257 Mich. 461, 1932 Mich. LEXIS 862

• Court: Michigan Supreme Court
• Decided: March 2, 1932
• Docket: Docket No. 35, Calendar No. 36,095.
• Status: Published

Opinion

Fead, J.

For some years plaintiff and his family lived near Lydia Smith at Ludington and rendered her many neighborly services. .-Plaintiff claims that in 1919 he contemplated moving to Detroit, and that, in consideration of his remaining at Ludington, Miss Smith contracted to leave him at her death sufficient money to produce $3,000 per year interest. His claim on the contract was allowed against her estate in probate court at $60,000, and the executors appealed.

In circuit court, plaintiff moved for summary judgment upon affidavits of his wife and cousin. Defendants, filed affidavit of merits provided by statute, but. did not deny the contract upon oath of a competent witness as required by Court Rule No. 30. With some doubt of the application of the statute, the court ordered summary judgment (3 Comp. Laws 1929, § 14260 et seq.).

We think summary judgment improper in this kind of proceeding. The statute ’ and rule’; must be read in connection with the general law. ' The remedy was not intended "to apply* to: a case where, by reason of the death of the real defendant, his representatives are prevented from' rnaking the required showing and his estate would be deprived of defense upon the merits.- Claims against the estates of deceased persons must he-proved by the claimants, and judicially found. They cannot be established -by concession-of the decedent’s representatives. Much less can they be held proved through inability of the representatives to discover ■ competent witnesses to specifically deny the claim.- Frequently the only defense the representatives can' make is through weakness of the claim,1-developed on- cross-examination and by attack upon the credibility of claimant and-his witnesses.- No such defense is open on motion for summary - judgment. Neither the statute nor the rule was designed to operate as a practical repeal of the probate law requiring affirmative proof of claims against thé estátes of decedents.

In Hampton v. Van Nest’s Estate, 196 Mich. 404, 413, the rule requiring denial on oath of execution of a promissory note was invoked against an estate. The court said: -

“We doubt if it is applicable to cases appealed from the probate court. We think the burden was upon the claimant all the time to make his case and prove the execution of the instruments claimed to have been executed by the deceased.”

Nor do we think-plaintiff-made a case for summary judgment. The narrations by affiants of the conversation in which the contract was claimed to have been made were not identical. Neither deposed to an express agreement with definite terms. The contract now claimed was' not stated except upon conclusion andinferénce óf plaintiff’s wife. To find it established would require not only -the determination as á fact of which account of the conversation was "correct, but also the' balancing of extraneous facts and inference's in connection with such determination. This is the province of the court or jury on the trial, hut is not permissible on motion for summary judgment. Insufficiencies in the affidavit of merits are unimportant because plaintiff’s own showing disclosed issues of fact. Baxter v. Szucs, 248 Mich. 672.

We agree with counsel for plaintiff that the record contains a considerable amount of unnecessary printing. We estimate the excess at about one-fourth, for which defendants will not be entitled to charge.

Judgment reversed, with costs except as above, and cause remanded for trial on the merits.

Clark,' C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. •