Dunn v. Dunn's Estate

86 N.W. 801, 127 Mich. 385, 1901 Mich. LEXIS 1004

• Court: Michigan Supreme Court
• Decided: July 2, 1901
• Status: Published

Opinion

Moore, J.

Charles Dunn presented a claim against the estate of his deceased father. His claim was disallowed by the commissioners. He appealed the case to the circuit court, where it was tried by a jury, who rendered a verdict in his favor for $500. The case is brought here by writ of error.

It is the claim of Charles Dunn that in 1876 he moved upon and took possession of a farm belonging to his father, Isaac Dunn, situated in the county of Ingham, embracing some 200 acres of land, under the agreement with his father that he (Charles Dunn) should go on and occupy said farm, and make certain improvements thereon, and that in consideration thereof the father would, at his death, leave said 200 acres of land to Charles as his own property; that, in pursuance of said agreement, the claimant did go on and occupy said farm, make certain improvements there, spend certain sums of money; that in 1883 claimant, at the request of his father, removed from said farm, and occupied another farm near the residence of his father, in Ann Arbor; that he never released or abandoned his right in said property. He also claims that, without his knowledge or consent, his father deeded 90 acres of the land to another person, which deed was not to be delivered and recorded until after the death of Isaac Dunn, when it was delivered and recorded.

Upon the trial Anna E. Dunn, the wife of Charles Dunn, was allowed to testify. The principal question in the case is whether she was a • competent witness or not. The appellant claims that she was not a competent witness under the statute (3 Comp. Laws, • § 10212). Counsel assert the case is controlled by Laird v. Laird, 115 Mich. 352 (73 N. W. 382). We cannot agree with counsel in this contention. Laird v. Laird was a case where a bill was filed for the specific performance of an oral land contract. If a decree was rendered as prayed for in the bill, the wife would secure homestead and dower rights, of which she could not be deprived except by her own voluntary act. For these reasons it was held she was a party in interest within both the letter and spirit of the law. In the case at bar a claim is presented for damages for a breach of an agreement. If the claim is allowed, it belongs to the husband. The wife has no more interest in it than she would have in the result of any other litigation determined in his favor. She is not a party in interest, within either the letter or spirit of the law. The precise question was involved in Cotherman v. Cotherman’s Estate, 58 Mich. 467 (25 N. W. 467), where it was held the wife was competent to testify. See, also, Slack v. Norton, 111 Mich. 213 (69 N. W. 497).

The other assignments of error have been considered, but do not call for discussion.

Judgment is affirmed.

The other Justices concurred.