In Re CAPUZZI ESTATE

Michigan Supreme Court
Lansing, Michigan

Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 2, 2004

In re ESTATE OF EUGENE T.
CAPUZZI, M.D., Deceased,
______________________________

MICHAEL CAPUZZI and EUGENE T.
CAPUZZI, JR.,

Petitioners-Appellants,

v No. 121106

CHRISTINA FISHER,

Respondent-Appellee.
_______________________________

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

The issue presented is whether the death of the

principal revokes his agent’s order to transfer limited

partnership shares when all necessary actions by the agent

were completed before the principal’s death, but the

transfer was not yet completed by a third party. We hold

that an agent’s actions are not revoked by the death of the

principal when the agent has completed all actions

necessary for the transaction before the principal’s death.

Therefore, we reverse the decision of the Court of Appeals
and affirm the decision of the trial court granting the

petitioners summary disposition.

I. FACTS

Decedent, Eugene T. Capuzzi, M.D., owned shares in a

limited partnership. Dr. Capuzzi’s will divided that

interest equally among his three children, Michael, Eugene

Jr., and Christina. A few days before his death, Dr.

Capuzzi directed Michael to transfer the limited

partnership shares to his sons, Michael and Eugene, Jr.,

petitioners in this case. Michael was acting as Dr.

Capuzzi’s agent pursuant to a durable power of attorney

agreement. The agreement gave Michael “full power and

authority to do and perform every act and thing whatsoever

requisite and necessary to be done.” The transfer would

eliminate Christina’s interest in the limited partnership

shares; Christina is the respondent in this case.

Michael contacted the limited partnership on August

10, 1998, and again on August 11, 1998, and he directed

that the shares be transferred pursuant to the power of

attorney and Dr. Capuzzi’s wishes. Dr. Capuzzi died on

August 14, 1998. On August 19, 1998, the limited

partnership sent Michael a letter stating that Dr.

Capuzzi’s death had revoked the power of attorney and,

therefore, the transfer could not be completed. During

probate proceedings, petitioners objected to the shares
2

passing under the will. The probate court granted summary

disposition for petitioners. The Court of Appeals reversed

and remanded, holding that the transfer of the shares could

not be completed because Dr. Capuzzi’s death immediately

revoked the power of attorney.1 This Court granted

petitioners’ application for leave to appeal. 468 Mich 925

(2003).

II. STANDARD OF REVIEW

We review de novo questions of law. Hagerman v

Gencorp Automotive, 457 Mich 720, 727; 579 NW2d 347 (1998).

Likewise, “we review de novo decisions on summary

disposition motions.” American Federation of State, Co &

Municipal Employees v Detroit, 468 Mich 388, 398; 662 NW2d

695 (2003).

III. ANALYSIS

It is a longstanding legal principle that a duly

authorized agent has the power to act and bind the

principal to the same extent as if the principal acted.

See, e.g., Cowan v Sargent Mfg Co, 141 Mich 87, 91; 104 NW

377 (1905); see also 1 Restatement Agency, 2d, § 12, p 57.

A power of attorney provides the agent with all the rights

and responsibilities of the principal as outlined in the

1
Unpublished opinion per curiam, issued February 15,
2002 (Docket No. 227750).

agreement. See, e.g., MCL 700.5501 et seq.; Kuite v Lage,

152 Mich 638, 640; 116 NW 467 (1908). In effect, the agent

stands in the shoes of the principal.

It is also well-settled that the death of the

principal revokes the authority of the agent, unless the

agency is coupled with an interest. See, e.g., Chrysler

Corp v Blozic, 267 Mich 479, 481-482; 255 NW 399 (1934);

Weaver v Richards, 144 Mich 395, 413; 108 NW 382 (1906).

Any act done by the agent after the principal dies cannot

affect the estate. 3 Am Jur 2d, Agency, § 52, pp 468-469.

This is true even if an agent performed some of the acts

necessary in a single transaction but not all of them. 2A

CJS, Agency, § 122, pp 394-395. If an agent is in the

midst of a transaction when the principal dies, the

transaction cannot continue, regardless of the principal’s

previously stated wishes.

However, when an agent has completed all necessary

actions and all that is left is for a third party to act to

complete the transaction, we hold that the principal’s

death has no effect on the validity of the transaction and

does not relieve the requirement on the third party to act.

This is because the agent’s actions were complete at the

time of the principal’s death. See 2A CJS, Agency, § 109,

p 386. Notably, if a third party requires additional

information to confirm that the agent has the authority to
4

act or if, for example, the third party requires completion

of an additional form indicating power of attorney, then

the agent has obviously not completed all actions necessary

for the transaction. If the principal dies before the

agent meets the third party’s requirements, then the third

party is not required to follow the directive of the agent.

This is because all necessary actions have not been

completed by the agent before the principal dies.

When all necessary actions have been completed, just

as the third party would be required to follow the

directive of the principal, the third party is also

required to follow the directive of the agent. See 3 Am

Jur 2d, Agency, § 1, p 429 (“the agent is the

representative of the principal and acts for, in the place

of, and instead of, the principal”)(emphasis added); 2A

CJS, Agency, § 4, p 308 (“a person may properly appoint an

agent to do the same acts and achieve the same legal

consequences as if he or she had acted

personally . . . .”); see also 2A CJS, Agency, § 1, p 306.

Although the agent’s authority to act terminates when the

principal dies, actions completed before the termination no

longer require the agent to exercise authority. Therefore,

the principal’s death does not revoke already completed

actions by the agent. See 2A CJS, Agency, § 109, p 386 (“A

revocation of the agent’s authority cannot retroactively

affect the completed acts of the agent.”).

In this case, in accord with Dr. Capuzzi’s wishes2 and

acting as Dr. Capuzzi’s agent pursuant to a durable power

of attorney, Michael contacted the third party and directed

that the shares be transferred. Just as Dr. Capuzzi had

the authority to compel the third party to transfer the

shares, Michael, as Dr. Capuzzi’s agent, possessed the same

authority. Once he ordered the third party to transfer the

shares, this concluded the agent’s actions that were

necessary to complete the transaction. All that remained

was for the third party to act. Again, in this case, the

agent did all that was required to transfer the shares.

The failure to transfer the shares was solely the result of

the third party’s delay and had nothing to do with the

third party’s internal procedures or concerns that the

agent did not have the proper authority.

2
We note that there is no assertion that Dr. Capuzzi,
from the time the agent acted to the time of the doctor’s
death, ever wavered in his decision to transfer. The
record also contains an affidavit from decedent’s wife of
forty-four years averring that respondent had, for a number
of years, been estranged from her father; that despite the
affiant’s efforts to obtain reconciliation and
reunification, respondent had refused to visit her parents;
and that in 1998, respondent had refused to visit her
father even though he was seriously ill. The affiant
continued that her husband died not wanting his daughter to
receive the joint venture shares and that he also wanted to
divest himself of all remaining assets to avoid probate.

Notably, the agent acted on behalf of the principal

before the agent’s authority was revoked by the principal’s

death and, thus, there was nothing precluding the third

party from relying on the agent’s authority. Because there

was nothing prohibiting the agent from ordering the

transfer when he did, that is, while the principal was

still alive, there was nothing prohibiting the third party

from acting pursuant to the validly given order. The third

party’s authority to transfer the shares does not depend on

the agent’s authority to act on behalf of the principal at

the time of the transfer of the shares; rather, it depends

on the agent’s authority to act at the time the agent

ordered the shares to be transferred. Therefore, because

the agent properly exercised his authority while the

principal was still alive, see 2A CJS, Agency, § 88, p 364,

the third party was not excused from acting on the agent’s

authority.

Although MCL 700.497 has been repealed, we are aware

that it was in effect at the time of the agent’s order to

transfer the shares. MCL 700.497(1) stated, in pertinent

part, the following:

The death of a principal who has executed a
power of attorney in writing, durable or
otherwise, does not revoke or terminate the
agency of the attorney in fact, agent, or other
person who, without actual knowledge of the
death, acts in good faith under the power of
attorney or agency. An action so taken, unless
7

otherwise invalid or unenforceable, binds the
principal and the principal's heirs, devisees,
and personal representatives.

In brief, MCL 700.497(1) stated that the death of a

principal who had executed a written power of attorney did

not terminate the agency of the attorney in fact, agent, or

other person who acted under the power of attorney or

agency in good faith without knowledge of the death. MCL

700.497(1) is not germane to this case because the

principal’s agent acted before the principal died.

Also, MCL 700.497(2) stated the following:

In the absence of fraud, an affidavit
executed by the attorney in fact or agent stating
that he or she did not have, at the time of doing
an act pursuant to the power of attorney, actual
knowledge of the revocation or termination of the
power of attorney by death, disability, or
incompetence is conclusive proof of the
nonrevocation or nontermination of the power at
that time. If the exercise of the power requires
execution and delivery of any instrument that is
recordable, the affidavit when authenticated for
record is likewise recordable.

This section essentially stated that an affidavit

executed by the attorney in fact or agent stating that he

did not have knowledge of the principal’s death at the time

of doing the act in question is conclusive proof of

nontermination of the power at that time and the act must

be enforced. Thus, if, unknown to the agent, the principal

died, the agent’s act must be enforced nonetheless once the

agent files an affidavit. The third party could not rebut

such an affidavit and would have no authority or basis to

refuse to carry out the agent’s order. Of course, this

section is not applicable to the facts of this case because

when the agent completed his act the principal was still

alive. And this section is not applicable to the third

party because the statute only applied to the attorney in

fact or agent and the third party in this case is neither.

However, it is important to note that MCL 700.497(2)

mandated that the actions of an agent be enforced when the

agent was unaware of the principal’s death at the time of

the act in question; therefore, actions taken by an agent,

at the principal’s behest, when the principal was still

alive are certainly enforceable. If we were to hold to

the contrary, the actions of a third party could revoke the

completed acts of an agent. This would circumvent the

intent of the principal and allow a third party’s actions

to control. A third party’s delay, whether intentional or

not, should not be allowed to thwart the principal’s wishes

when the principal’s agent has completed all necessary

actions before the principal’s death. Further, to find

that an agent had the authority to order the transfer of

the shares but that the third party did not have to follow

the order would render the agent’s authority a nullity.

We note that our decision today does not affect

situations in which an agent’s actions were not yet
9

complete at the time of the principal’s death. Our

decision only addresses situations in which an agent’s

actions were complete and the only actions remaining to be

done are those of the third party. Although the

principal’s death revokes the agent’s authority to act on

behalf of the principal, it does not void the acts

completed by the agent on behalf of the principal before

the principal’s death. We also note that our decision

today does not preclude a third party from taking

reasonable steps to ensure that an agent’s order stems from

a proper power of attorney. See Cutler v Grinnell Bros,

325 Mich 370, 376; 38 NW2d 893 (1949). However, in this

case, the third party’s delay was not related to any action

being taken to ensure that the agent was not acting

improvidently or fraudulently.

IV. CONCLUSION

We hold that an agent’s completed actions are not

revoked by the death of the principal when all necessary

actions have been taken by the agent before the principal’s

death. Accordingly, we reverse the decision of the Court

of Appeals and affirm the decision of the trial court.

Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Stephen J. Markman

S T A T E O F M I C H I G A N

SUPREME COURT

In re ESTATE OF EUGENE T.
CAPUZZI, M.D., Deceased.
________________________________

MICHAEL CAPUZZI and EUGENE T.
CAPUZZI, JR.,

Petitioners-Appellants,

CHRISTINA FISHER, No. 121106

Respondent-Appellee.
________________________________

YOUNG, J. (concurring).

I concur in the result reached by the majority because

I believe that the probate court appropriately determined

that the contested partnership shares belonged to the

decedent’s sons rather the estate. However, the majority

reaches beyond the simple issue presented in this case:

whether the probate court properly applied the principles

of MCR 2.116(C)(10) in resolving this property dispute in

favor of the decedent’s sons. In reaching beyond what is

essentially a simple standard of review question, the

majority addresses other issues not squarely presented and

blurs the distinctions between the obligations of an agent

operating under a power of attorney and the obligations of
a third party responding to the direction of that agent.

Consequently, I write separately to provide an alternate

rationale–one that I believe will reduce the risk of

unintended consequences that I suspect the majority opinion

may create.

I. Factual Background and Procedural History

At issue is a petition in the probate court to

determine ownership of shares in a limited partnership that

owned a horse race track. Decedent owned those shares

during his lifetime.

Two years before his death, Eugene T. Capuzzi had

appointed his son, Michael, to be his attorney-in-fact

under a durable power of attorney. He had instructed his

son to transfer various assets to his wife and to a

revocable trust. In addition, he had instructed Michael to

transfer his shares in the racetrack to his sons Michael

Capuzzi and Eugene T. Capuzzi, Jr.

When the estate inventory was filed in probate court,

the decedent's daughter, respondent Christina Fisher,

noticed that the racetrack shares were not included. She

petitioned the court for the return of the assets to the

estate, claiming that the racetrack shares were estate

assets because the racetrack company had not completed the

transfer of the shares before her father died. Her

brothers filed a counter-petition, requesting that the

probate court determine the proper ownership of the

racetrack shares. Among other proofs, they submitted the

affidavit of the executive manager of the limited

partnership, who stated that the limited partnership's

general business practice with regard to share ownership

was to transfer shares upon written or telephone

communication directing a transfer. The sons also

introduced evidence that the decedent desired the racetrack

shares to be transferred to his sons and that this desire

was communicated to Michael Capuzzi before the decedent

died. It is not contested that the transfer order was

communicated to the attorney-in-fact before the father

died.

On a motion for summary disposition pursuant to MCR

2.116(C)(10), the probate court ruled in favor of the two

sons, concluding that the limited partnership's practice

made transfer of ownership complete when the owner’s intent

was communicated. It also found that the decedent's intent

was communicated to his attorney-in-fact before his death

and that the attorney-in-fact directed the transfer before

the decedent’s death so that these communications

successfully changed ownership to the sons.

The Court of Appeals reversed in an unpublished

opinion.1 The Court ruled that the power of attorney was

effective until revoked by death. Because the instruction

to transfer ownership of the shares had not been completed

by the limited partnership's manager, the Court of Appeals

determined that the shares remained in the decedent's name

and were, therefore, part of the probate estate.

II. Jurisdiction and Standard of Review

The probate court had jurisdiction to determine the

title to property pursuant to MCL 700.22(1):2

In addition to the jurisdiction conferred by
section 21 and other laws, the probate court has
concurrent legal and equitable jurisdiction of
the following matters involving an estate of a
decedent, ward, or trust:

(a) To determine property rights and
interests. . . .

See Noble v McNerney, 165 Mich App 586; 419 NW2d 424

(1988).

We review de novo the probate court’s grant or denial

of summary disposition. Spiek v Dep’t of Transportation,

456 Mich 331, 337; 572 NW2d 201 (1998).

1
Unpublished opinion per curiam, issued February 15,
2002 (Docket No. 227750).
2
This section was replaced by MCL 700.1303 effective
April 1, 2000. 1998 PA 386.

III. The Probate Court Properly Decided
an Uncontested Motion

The sons submitted evidence establishing their

father’s desire to have his shares transferred to them as

well as evidence regarding the transfer practices of the

limited partnership. Both the communication of the

decedent’s wish to have the shares transferred to his sons

and the communication of his instruction to the racetrack’s

transfer agent occurred before the decedent died. These

facts were not contested by Christina.3 There was no

genuine issue of material fact concerning the authority of

Michael Capuzzi to make the transfer order, there was no

good faith challenge by the transfer agent to Michael's

authority, and there was no genuine issue of material fact

about the typical manner in which the limited partnership

usually handled these orders. Accordingly, the probate

court properly concluded that the contested shares were not

an asset of the estate and granted judgment for the sons as

a matter of law.

Only this assessment of the probate court’s ruling is

necessary for the resolution of this case. However, the

3
Under MCR 2.116(C)(10) and (G)(4), respondent had a
duty to oppose the sons’ motion by establishing a disputed
issue of material fact. By Christina having failed to do
so, the probate court was authorized by statute and court
rule to rule in the sons’ favor if they are entitled to
judgment as a matter of law.

majority launches into an unnecessary analysis of the

authority of agents operating under a power of attorney

upon the death of the principal, the general obligations of

third parties upon receipt of instructions of an agent, and

other issues I think wholly irrelevant to the disposition

of this case.

IV. Contrary to the Majority view,

a third party is not unqualifiedly “required”

to honor a power of attorney

My disagreement with the majority is its overbroad and

largely unsupported assertion that a third party is

required to act in response to a directive from a person

serving as an attorney-in-fact:

However, when an agent has completed all
necessary actions and all that is left is for a
third party to act to complete the transaction,
we hold that the principal’s death has no effect
on the validity of the transaction and does not
relieve the requirement on the third party to
act. [Ante, p 4.]

When all necessary actions have been
completed, just as the third party would be
required to follow the directive of the
principal, the third party is also required to
follow the directive of the agent. [Ante, p 5.]

Although both statements are at a very general level

accurate, they are unnuanced and overbroad. These

statements are at odds with an established principle

actually discussed in an unconnected fashion later by the

majority: “[O]ur decision today does not preclude a third

party from taking reasonable steps to ensure that an

agent's order stems from a proper power of attorney."

Ante, p 10. The conclusion that an agent was authorized to

act on behalf of the principal before the principal's death

does not compel the conclusion that a third party is

obligated to respond in a particular fashion.4

It is common practice for financial institutions,

hospitals, and other businesses to ask customers to use a

power of attorney form created by that business. And the

reason for such a request is obvious—the need to ensure

that one who purports to act for another under a power of

attorney is doing so with proper authority. Generally, a

third party must exercise due diligence and due care to

ascertain the scope of authority.5 A third party who acts

in reasonable reliance on the apparent authority of an

agent is protected:

A third party with whom the agent deals may
rely on the appearance of authority only to the
extent that such reliance is reasonable. Blind
reliance is incapable of giving rise to
ostensible authority; reliance must be had in
good faith and in the exercise of reasonable
prudence. [2A CJS, Agency, § 144, p 420.]

4
Indeed, because all the agent’s actions in this case
were completed before the death of the principal, it is
unclear why the majority devotes so much analysis to the
rules that apply when the principal dies before his agent
has completed all acts to effectuate the principal’s
direction—a circumstance inapposite to the facts of this
case.
5
2A CJS, §§ 150-151, pp 426-429.

Cowan v Sargent Mfg Co6 supports the principle that a

third party has a right to inquire into the authority for a

purported agent's commands. In Cowan, the defendant was a

Michigan manufacturer of sickroom furniture who operated a

sales showroom in New York. The defendant's New York

manager ordered furniture from the plaintiff, a

manufacturer of bedroom furniture, for delivery to friends

in New York, purporting to act on behalf of the defendant.

When the bills for the bedroom furniture went unpaid, the

plaintiff sued, claiming that its agent had bound the

company for the purchases.

The Supreme Court held that the company was not liable

for the manager's purchases because he acted outside the

scope of his authority. Had the manager bought jewelry or

automobiles, it would have been clear that he was operating

outside the scope of his agency. The purpose of the

defendant's New York operations was to market its Michigan-

made furniture, not to acquire furniture from other

suppliers. Accordingly, the manager was operating outside

the scope of his authority, and this Court held that the
7
company was not liable for the agent’s purchases.

6
141 Mich 87, 91; 104 NW 377 (1905).

7
141 Mich 91.

Thus, contrary to the majority’s statements, the

longstanding principle in Michigan is that a third party

who does not inquire sufficiently into an agent's authority

does so at his own financial peril. That is why this Court

must be cautious and avoid language that might imply a

rigid duty or obligation for a third party to act.

I agree with the majority that former MCL 700.4978 is

not directly applicable here. Similarly, former MCL

700.495 is also not directly applicable.9 Nonetheless, both

sections show a legislative recognition of the role "good

faith" can play—and the insecurities a third party might

feel—by protecting a third party who acts in good faith.10

Our law permits—indeed encourages—the third party to

satisfy himself that the purported agent is in fact

authorized to act. Nonetheless, the issue in this case is

not the third party’s alleged “obligation” to act, because

8
That section provided that a person who acted in good
faith without knowledge of the death was protected, but it
left open the question whether one who refuses to act
because of knowledge of the death would likewise be
protected.
9
Former MCL 700.495 gave legislative recognition to
durable powers of attorney.
10
The majority cites MCL 700.5501 et seq. for the
proposition that "[a] power of attorney provides the agent
with all the rights and responsibilities of the principal
as outlined in the agreement." Ante, pp 3-4. That
statute, codified as the Uniform Durable Power of Attorney
Act, was effective April 1, 2000, and, therefore, does not
apply to this dispute, which arose in 1998.

the third party has not been named a party to this

litigation. Rather, this is an action in probate court to

determine the ownership of assets.

Accordingly, this case does not require the Court to

issue a broad statement attempting to define for all

purposes a third-party's obligation to obey (or disobey)

instructions from a purported agent. For the reasons

stated above, I concur in the majority’s decision to

reverse the Court of Appeals and reinstate the judgment of

the probate court.

Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor

In Re CAPUZZI ESTATE

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