Kar v. Hogan

221 N.W.2d 417, 54 Mich. App. 664, 1974 Mich. App. LEXIS 1289

• Court: Michigan Court of Appeals
• Decided: August 13, 1974
• Docket: Docket 16953
• Status: Published

Opinions

J. H. Gillis, P. J.

Plaintiffs, stepchildren of Julia Kar, sought to invalidate a deed because of undue influence. From a judgment in favor of defendant, plaintiffs appeal.

John Kar, plaintiffs’ father, married Julia in 1914. Julia, who remained childless, reared plaintiffs as though they were her own children. In 1917, the Kars purchased a farm which, at time of trial, was valued at approximately $300,000. In 1951, John Kar died. In 1953, Julia married Edward Merkiel. In 1957 and 1966, Julia signed wills devising the bulk of her estate to plaintiffs, and creating a life estate in her husband. However, in 1969, Julia, in a "strawman” transaction, deeded the farm to her husband and herself by the entire-ties. Julia died in 1970, and Edward in 1971. Edward’s executor, Fred Hogan, is named defendant in this case.

Plaintiffs claimed that the disinheriting deed should be set aside because of confidential relationship and undue influence. The trial court ruled that Edward’s confidential relationship with Julia pláced the burden on defendant to overcome the presumption of undue influence. In re Wood Estate, 374 Mich 278; 132 NW2d 35 (1965). An advisory jury rendered a verdict for plaintiffs, but the trial court disregarded its findings and ruled for defendant. GCR 1963, 509.4.

Clearly, an advisory jury’s opinion does not bind a chancellor in equity. Abner A Wolf, Inc v Walch, 385 Mich 253; 188 NW2d 544 (1971).

This Court ordinarily reviews chancery cases de novo, giving considerable weight to the trial judge’s findings. Only if we find, upon examination of the entire record, that we would have been required to reach a different result had we been in the chancellor’s position, will we disturb those findings. In re Hartman Estate, 51 Mich App 192, 203-204; 215 NW2d 202, 208 (1974); Dare v O’Connor, 50 Mich App 550, 554; 213 NW2d 774, 776 (1973). A careful review of the record reveals a trial of confused facts, but does not convince us that we would have been required to reach a different result.

In examining the record, however, we have carefully scrutinized a statement of the trial judge which might possibly be construed as a declaration of the trial judge’s decision before hearing the entire case. The trial judge stated:

"I want to be frank with able counsel. If I was deciding this nonjury, I would have no difficulty with it at all. I would hold for the defendant. I think all plaintiffs have shown was that [sic] the many, many plaintiffs have shown, namely, the opportunity of undue influence because this disposition of property was different from what the plaintiffs thought it was going to be. That doesn’t make out a case of undue influence; it is an opportunity for undue influence. There is not one scintilla of evidence in this case. As a matter of fact, it is all to the contrary. She got sick, but to get sick, is, I think to dispose of one’s state [sic]—most of us will never get to dispose of our estates—many of these are disposed of while they are thinking, you know, what is going to happen to it when we are sick. I am going to be very frank with counsel. To me there isn’t even a prima facie case made out by the plaintiff. It is quite a different thing when you have the free jury situation I think a jury case has been made out and the only question is in my mind is whether there is a jury case both as to the conñdential ñduciary relationship and the undue inñuence. I have to say that because of the nature of the relationship, namely, husband and wife, that in and of itself is a fiduciary relationship and therefore it would go to the jury merely on undue influence.” (Emphasis supplied.)

After careful scrutiny, we do not believe this statement violates the standard enunciated in Wayne County Prosecutor v Doerfler, 14 Mich App 428; 165 NW2d 648 (1968). Granted, the excerpted statement is ambiguous and confusing. The court asserts that plaintiffs offered not a scintilla of evidence, but rules nonetheless that a jury case has been made out. However, a common-sense reading shows that the court believes, and properly, that the burden of proof shifts to defendant upon proof of the existence of a confidential relationship. Totorean v Samuels, 52 Mich App 14; 216 NW2d 429 (1974). Further, aside from the fact of marriage, the court believes not a scintilla of evidence has been offered in support of plaintiffs’ case. Indeed, plaintiffs themselves testified that their mother remained strong-willed, although physically ill. This ruling on the evidence does not demonstrate a closed or prejudiced mind.¹ Prejudice "stems from prae-judicare, to judge before one knows the facts”.² To assume impartiality and fairness requires the fact-trier to retain a blank mind, forming no opinion until the moment of ultimate judgment, is both misleading and undesirable. The judge’s statement does not demonstrate that the court closed its mind to the balance of the proofs. Indeed, a careful reading of the trial judge’s opinion shows he strove to balance justice’s scales throughout the proceedings. He accurately and carefully assessed the proofs supporting each side, and concluded, against the advisory jury, that the disposition was the free act of Julia Kar Merkiel. Having carefully considered this record, we find no error on this ground.

Affirmed. Costs to defendant.

Van Valkenburg, J., concurred.

1 Cf. Nizer, The Implosion Conspiracy, 1973, pp 12-13:

"[A] judge * * * rendered a record number of decisions in one year. He was besieged by newspapermen to explain his achievement.

" 'Well,’ he said, T listen to the plaintiff and decide the case immediately.’

" 'Don’t you listen to the defendant too?’ they ask.

" T used to,’ he replied, 'but I found it confused me.’ ”

The trial judge cannot be accused of this fault.

2 Nizer, supra, p 12.