I cannot concur in the opini on of Mr. Justice SHARPE herein.
The trial judge made a very carefully prepared and apparently well-considered finding of facts in *Page 446 this case and on this appeal we give careful attention to the result of his comparison of the testimony of the various witnesses with each other and the weight that he gives to the testimony. However, we try the case de novo.
Mr. Justice SHARPE cites the case of Jeffries v. Jodawelky,304 Mich. 421, as authority for disregarding the admissions by defendant herein as substantive proof of facts so stated. In that case the statements of Jodawelky, driver of an automobile concerned in causing an accident, in which he said he was acting in the scope of his employment at the time of the accident, are considered as not competent to bind his employer. That case is not authority for the use sought to be made of it in the opinion of Mr. Justice SHARPE.
In the instant case, Mary Doster had received the title to real estate and to personal property from the decedent, Chauncey F. Abraham, and must be considered, because of being such grantee and assignee of the decedent, as standing upon the proposition that the decedent was competent to make the transfers in question, and that the transfers to her were free from fraud, and that is her defense in this case. She denies that the mind of decedent was so impaired by his age and physical infirmities that he was mentally incompetent. The admissions by Mary Doster, sworn to by witnesses for plaintiff, were receivable not only for the purpose of contradicting her as a witness but to prove the facts about which she spoke. "The admission is original, primary, independent and substantive evidence of the fact covered thereby." 31 C.J.S. p. 1094, citing Scheloski v. Schricker,245 Mich. 391, from which case we quote from the syllabus:
"The admissions of a party against his interest are admissible against him, and are presumed to be true until the contrary is shown." *Page 447
See, also, Murner v. Thorpe, 284 Mich. 331; Williams v.Wood, 260 Mich. 322; Hamilton v. Clippert, 239 Mich. 440;Fuller v. Magatti, 231 Mich. 213.
On June 5, 1934, defendant Mary Doster, who had done some work as a practical nurse, and who was not related to deceased, Chauncey F. Abraham, was employed to care for Abraham and his wife.
Four witnesses relied on by the defendant to prove the mental competency of the deceased were Dr. Willard R. Vaughn, Mrs. May Huntley, Mrs. Rose Blackman and Mr. Lawrence G. Matson.
Dr. Vaughn testified that decedent was mentally alert during the entire period during which the witness attended him in 1934 to his death in 1942, except when under the influence of drugs. This witness had purchased from Mary Doster 52 shares of stock of the Consumers Power Company that had been owned by decedent and is therefore not a disinterested witness. Mrs. Huntley, who operated a store at Plainwell, testified that decedent was clear in his mind when he called at the store but he did not call there during the period in which it is claimed decedent was mentally incompetent because during that period he stayed at his residence. Mrs. Huntley saw him at his house about September 13, 1942, shortly before he died and says his mind was clear on that occasion but she stayed only a short time because she didn't want to tire him, as he was evidently very feeble. Mrs. Blackman had a conversation with decedent in his back yard as he sat in a chair. That was two or three years before he went to bed. Evidently this occasion was preceding the period when his mentality is disputed. Mr. Matson, superintendent of security sales for the Consumers Power Company, testified that he called at the residence of decedent on three or four occasions, the last visit being January 6, 1941, on the *Page 448 business of the transfer of the stock by decedent, and claims Mr. Abraham definitely knew what he wanted done. There is no explanation of the coincidence of the presence of Dr. Vaughn at the same time that this witness was present. There is no testimony that the witness was then under the influence of a drug. The inference is fairly to be drawn that the witness felt an interest in the security of Dr. Vaughn in his ownership of the stock. The circuit judge considered the testimony of these various witnesses produced by defendant as not very convincing.
Decedent's wife died February, 1936. Chauncey Abraham died September 30, 1942. The defendant testified:
"I had the account changed to our joint names about December 7, 1935. * * * After that date I transacted all of Mr. Abraham's business because he wanted me to, it worried him."
In 1936 decedent and defendant took a trip up north and while there the decedent became extremely ill and his friends despaired of his life. Defendant further says in her testimony:
"When I went there Mr. Abraham told me that his stock and income from the stock was to be used for his benefit during his lifetime."
The annual income from the stocks and Standard Savings Loan was around $500 and $600, as appears from the testimony of defendant. This was about the amount of the annual living expenses of the household.
Decedent was on friendly terms with his relatives.
It further appears from defendant's testimony that the last three years of his life decedent stayed in bed, but sometimes sat by the window, that he had two back injuries and required medicine and doctor's services, and that he sometimes suffered *Page 449 terribly and required plenty of nembutal. Defendant further testified:
"I couldn't say it (his mind) was alert, because no one that has had a lot of drugs is alert. * * * I did not consider that the heirs of Mr. Abraham would be interested in how the money would be spent. * * * During the time I was there I had several cars. * * * We had a garden * * * I had chickens for a time * * * and eggs. The groceries would run $5 a week * * * Sometimes the doctor bill would run $50 a year."
In relation to the deed of the house and lot at Plainwell, she testified:
"Mr. Abraham said, `I know now that you will take care of me all the rest of my life, you said you would.'"
The defendant also stated to at least five witnesses that she had agreed to take care of decedent the rest of his life in consideration of the deed to her of the house and lot at Plainwell. It appears further that the house and lot was free and clear when decedent deeded it to defendant. She says in her testimony:
"I presume I told him (Mr. Elmer Chamberlin) that I had bought the farm from Chauncey Abraham."
It also appears that she told witness Menvil Mott that she had bought that farm. Her claim therefore in her other testimony that the decedent gave her a gift of it in consideration of services is negatived and the falsity of it made to appear by her own admission in her testimony and by the testimony of these other witnesses. Defendant testified:
"Q. What did Mr. Abraham say when you told him that the proceeds from the stock had been exhausted? *Page 450
"A. He said, `How will we live then?'"
Defendant also testified:
"Q. And when the proceeds from the disposal of part of it had been exhausted you would tell Mr. Abraham and he would tell you to sell some more of it, would he?
"A. That is it."
This testimony is inconsistent with her statement that she bought the Brigham house (not the house hereinbefore spoken of) for $2,500 with money he gave her and also with her testimony she had spent $1,500 on the Plainwell property. Her fraud is proven by her own testimony.
As to the mental incompetency of the deceased, in addition to what she said on the witness stand about the decedent being under the influence of a drug, the defendant told witness Ola Abraham that Mr. Abraham's condition was such that it (decedent's will) couldn't be changed because he would be in no condition to change it because of his mind. Also, to witness Bernice Fisher defendant said that the decedent was "incompetent and incompedient," and to witness Reuben Fisher she said the same thing. Mrs. Leone Abraham testified:
"She spoke to me about his mental condition and said that he made a will and that it was on record and no matter what he did from then on, it wouldn't hold good, because he wouldn't be responsible. She said he was childish and forgetful."
Margaret Fenner testified:
"Mary said that Mr. Abraham was getting too old, he didn't know just what he was doing and he had made a will and it was all settled and we had missed our chance that we didn't go ahead when we should have, that he was getting too old to know just what he wanted." *Page 451
The finding of the trial judge as set forth in the following excerpt is fully justified and sustained by the greater weight of the evidence, as we view the matter:
"Defendant admits that during the last three and one-half years of his life, Mr. Abraham was confined to his bed; that he suffered a great deal of pain from two back injuries, and that she administered `nembutal — he used a great deal;' that he was 90 years old at his death. She says that he trusted her absolutely; gave her a power of attorney to transact all his business affairs, and that after she `took over' she handled all of his money and transacted all of his business; * * * that he furnished the money to purchase all four of the cars, the title of three being put in her name and one in their joint names and furnished the money to keep up the expense of these cars. In view of the hard way in which he had earned his money, and the testimony regarding his frugality, this freedom of expenditure is hardly consistent with his established habits. Moreover, from defendant's testimony, it may well be inferred that Mr. Abraham believed at the time of each transfer that all funds had been used up for living expenses."
Elmer Chamberlin was a friend of the decedent and took care of decedent's business for him before Mary Doster, defendant, came there, and testified that in 1934 decedent had about $14,000 in bonds besides his farm and the house downtown. The account book showing withdrawals between February 1, 1937, and February 26, 1941, together with the testimony as to the actual expenditures in the household, given by defendant, abundantly support and require a conclusion that the actual living expenses in the household during even the last years of the life of decedent were very small, and the standard of living was very frugal. Defendant testified: *Page 452
"I believe the household expenses while Mr. Abraham was alive ran between $50 and $54 a month."
Practically all of decedent's property had been transferred to defendant before his death. The testimony clearly supports the finding by the trial judge that decedent in making such transfers supposed them to be necessary in order to take care of the living expenses of the household; that the defendant was able by her statements to make him believe that sort of thing casts doubt upon his mental competency.
Defendant testified:
"I agreed to take care of them for $4 a week just for the mornings work. I didn't have to be there afternoons. My arrangements was to get $4 a week until one of them was ill and then it was to be $10. When Chauncey's wife became real ill I got $10 * * * up to the time of her death and for some time afterwards, after he needed care."
Later she testified:
"The money that came in from the sale of shares of stock as they were sold and the cash came in, I just put down on the book that way, as $12 a week for myself, so that some day I would know what I earned."
The arrangements for weekly pay preceded and were superseded by the agreement in pursuance of which decedent deeded defendant the Plainwell house in consideration of which she agreed to care for decedent for the rest of his life, after which time she collected the rent from that house.
The decree appealed from recited and confirmed the conveyance on July 25, 1936, of lot 59, Whitney's addition to the city of Plainwell, to defendant as having been given by decedent and received by defendant as payment in full compensation for defendant's *Page 453 services performed and to be performed in the future by defendant to decedent and recited the remaining property now held by defendant received from decedent, required of plaintiff an accounting, and the decree directed such property to be turned over to or accounted for to the estate of decedent. The findings made by the trial judge are correct and the decree is a just and equitable disposition of the rights and interests of the parties.
The decree appealed from should be affirmed, with costs to plaintiffs.
BUTZEL, J., concurred in the result.