Graves v. Von Below

125 N.W. 379, 160 Mich. 408, 1910 Mich. LEXIS 781
CourtMichigan Supreme Court
DecidedMarch 19, 1910
DocketDocket No. 129
StatusPublished
Cited by1 cases

This text of 125 N.W. 379 (Graves v. Von Below) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graves v. Von Below, 125 N.W. 379, 160 Mich. 408, 1910 Mich. LEXIS 781 (Mich. 1910).

Opinion

McAlvay, J.

Complainant filed his bill of inter-pleader in the circuit court for Wayne county, impleading the defendants, asking the court to determine their respective rights and interests in and to certain moneys in his hands after determining his proper charges, and the amount to be paid by him into the court pending this litigation, and to relieve him from all further responsibility; also to enjoin said parties from prosecuting any suits against him to recover said funds which came into his hands and were held by him as a trustee.

Stated as briefly as possible, the facts are: That these defendants were formerly husband and wife. That prior to their marriage, which occurred November 11, 1903, defendant Gould was owner of a fully paid endowment policy of life insurance of $10,000, payable to his legal representatives in event of his death prior to March 18, 1909, and, in case he survived that date, that sum and all earned dividends to be paid to him. After their engagement and before their marriage, and in consideration of that approaching event, and for the purpose of' making provision for her, defendant Gould assigned said policy absolutely and without condition to his affianced wife. Both before and after such assignment and the marriage of these parties, he was involved in financial difficulties and in litigation with his creditors. Not long after the marriage they went to the Philippines, where they re[410]*410mained for some time. They then, returned to the State of Washington. They had disagreements, and the record shows that he deserted her at Seattle, and she came east to Detroit. Creditors threatened to attack the assignment of this policy of insurance made to her, and she, desirous of a reconciliation, and willing, for that purpose, to pacify creditors, on March 3,1904, made a power of attorney and written authority to complainant to take the necessary steps to preserve the policy and collect the amount due thereon when the same matured, and distribute the same in certain proportions. Complainant, as the professional adviser of both parties, desired a reconciliation between them, and undertook to bring it about under such authority. The authority and power of attorney are one instrument, and read as follows:

“Know all men by these presents that I, Maude C. Gould, have constituted and appointed, and by virtue of these presents do constitute and appoint Henry B. Graves, of Detroit, Michigan, my true and lawful attorney, in my name,.place and stead to go to Seattle, Washington, and take whatever steps that may be necessary in his judgment to preserve my interest and the interest of my husband, Clarence H. Gould, in policy Ro. 420,450, issued by the Equitable Life Assurance Company of the United States upon the life of Clarence H. Gould and assigned to me, to the end that after the payment of not more than two thousand ($2,000.00) dollars for the purpose of satisfying the claims of creditors of Clarence H. Gould, and the further payment of the expenses and services of my said attorney, the proceeds of said policy at the maturity of the same may be collected and disposed of in the manner and under the conditions set forth in the paper hereto attached, marked Exhibit A, and made a part hereof; that for the purpose of carrying into effect the above object, I do hereby authorize and empower my said attorney to do each and every act in the premises that I could do if personally present, and to sign my name to all papers that may be necessary in the premises, and otherwise act in my name, place and stead, without the power of substitution, but hereby reserving full power of revocation in writing.
“Signed,” etc.
[411]*411Exhibit A:
“Detroit, Mich., March 3, 1904.
“ My Dear Mr. Graves:
“ Regarding papers turned over by me to you belonging to Mr. Gould, you can with exception of insurance policy return to Mr. Gould as requested by him. As to policy No. 420,450, in the Equitable Life Insurance Company of the United States on the life of Clarence H. Gould, assigned to me; you are hereby authorized to take the necessary steps to preserve this policy and collect the amount due therein when same matures, so that not more than $2,000.00 is paid to creditors, and in case Clarence H. Gould and myself are not separated and continue to live together at that time, I receive one-half from the proceeds and in case of separation I receive |- more from the proceeds. I mean -| of his half.
“Maude C. Gould.”

No consideration passed from defendant Gould for the provisions made for him in these papers. Complainant went to Seattle to meet Mr. Gould and execute his mission. He used $2,000, as authorized, in payment to creditors. This was not sufficient, but required $600 more. Eor this purpose, another instrument was executed to him by Mrs. Gould on May 19, 1904, giving him such authority, and referring to the papers above set forth, and authorizing him to proceed according to instructions of the letter. He did so, but no reconciliation could be effected, and he returned to Detroit. From time to time complainant loaned or furnished- Mrs. Gould money in such amounts as she requested until no further amount could b9 loaned on her apparent interest in the policy. Proceedings for divorce were instituted by her which proceeded to a pro confesso decree for divorce, including permanent alimony of $2,500, which was entered February 23, 1805. No personal service was had upon Mr. Gould, and he did not appear or take any part in the divorce case. On April 8, 1909, Mrs. Gould, then Mrs. Von Below, revoked the power of attorney given to complainant. The dispute in this ease concerns the amount remaining in his hands, for a proper disposition of which [412]*412he has invoked the action of the proper court. A decree of interpleader has been duly entered, and the fund has been paid into court by complainant, and he has been discharged. The ease was . heard in open court upon pleadings and proofs. Defendant Gould was not present or a witness. The court below granted a decree in favor of Mrs. Von Below, giving her the entire fund in dispute. From this decree defendant Gould has appealed.

As the appellant contends that this trust was not revocable because it was created, as he claims, by the agreement between complainant and Mrs. Gould, executed May 19, 1904, and as this agreement is not included, except by reference, in the statement made by us, we think it important to give it here. It reads:

“Whereas, upon March 3, 1904, Maude C. Gould, by an instrument in writing, did constitute and appoint Henry B. Graves, of Detroit, Michigan, her true and lawful attorney to take whatever steps that might be necessary in his judgment to preserve her interests and the interests of her husband, Clarence H. Gould, in policy No. 420,450 issued by the Equitable Life Assurance Society of the United States, upon the life of Clarence H. Gould, and assigned to Maude O. Gould to the end that after the payment of not more than two thousand ($2,000.00) dollars for the purpose of satisfying the claims of creditors of Clarence H. Gould and the further payment of the expenses and services of said attorney, the proceeds of the said policy at the maturity of the same might be collected and disposed of in the manner and under the conditions set forth in a paper marked ‘ Exhibit A.’ and attached to said power of attorney; and
“Whereas, said Henry B.

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Cite This Page — Counsel Stack

Bluebook (online)
125 N.W. 379, 160 Mich. 408, 1910 Mich. LEXIS 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graves-v-von-below-mich-1910.