Docket No. 34, Calendar No. 45,211.

332 Mich. 104 (1952)

50 N.W.2d 734


Supreme Court of Michigan.

Decided January 7, 1952.

Attorney(s) appearing for the Case

Searl, White & Block, for plaintiff.

J. Donald Murphy, for defendant McEuen.


Bill in chancery filed by Mae Henning, as administratrix of the estate of Julia McEuen, her deceased sister, against Lloyd McEuen, the surviving husband. The case involves $8,800 found by the defendant Lloyd McEuen in a coffee can in their home after Julia McEuen's death, which plaintiff claims was the property of her deceased sister. The Old State Bank of Fremont is also named as defendant because Lloyd McEuen after he found the money deposited it in said bank in his name. However, the bank has disclaimed any interest in the deposit and agreed to turn it over to the party who prevails in this suit. Therefore Mae Henning, the administratrix, will be referred to as plaintiff and Lloyd McEuen as defendant. After taking testimony the circuit judge decreed that half of said $8,800 belonged to Julia McEuen's estate and half to the defendant. The defendant appeals and plaintiff cross-appeals, each claiming the entire sum.

At the time of Julia McEuen's death in November, 1950, she and Lloyd McEuen had been married for over 40 years. Previous to 1942 they had accumulated a small amount of money which they had invested and lost during the depression and apparently they were broke when they went to live in Fremont, Michigan, in September, 1942. At that time they both obtained employment at the Gerber Products Company in Fremont, and both remained steadily employed there until Julia McEuen's death in 1950. During that time the defendant each week turned over his pay check to his wife Julia, out of which she gave him $2 per week allowance and no more. He conceded that she was the better manager and money saver. Each used a separate pocketbook for their own daily expenses, Julia took out and kept the money for their weekly household expenses in a handbag. After taking out their living expenses and $2 per week for the defendant the balance of their earnings was commingled in a common fund — Julia McEuen stated that she was "salting it down." A neighbor friend who often went uptown with Julia to cash their checks testified that Julia told her that she kept her weekly budget expenses in her handbag and that she had another place for the balance of their pay checks "where we call it `salting it down' * * * once I put it away I never take it out for anything."

Shortly after Julia's death the defendant found $8,800 in $5, $10 and $20 bills in a coffee can in the clothes closet of their apartment, and deposited it in the bank. This is the money here in dispute and, except for 10 shares of Gerber stock, the value of which is not shown by the record, represents all of the defendant's assets at the time of his wife's death.

Plaintiff Mae Henning testified that for a period during the depression her sister Julia had been given money by their father totalling about $1,800 which Julia's husband did not know about. A witness testified that in 1939 Julia McEuen received $1,276 from a judgment for damages she had sustained in an automobile accident. There was some testimony that in 1939 Julia McEuen had about $4,000 in cash, and that in 1946 Julia McEuen had left $6,000 with her sister Mae Henning for safekeeping, which was left in a deposit box in a Grand Rapids bank. Mac Henning testified that in 1950 Julia McEuen had left $9,085 in $10 and $20 bills with her during the months of July, August and September while the McEuens were taking some short trips. Counsel for plaintiff attempted to show by Mae Henning that she had turned this money over to Julia McEuen shortly before the latter's death. However, the court excluded such testimony on the ground that Mae Henning and the defendant were both heirs-at-law and as such were interested in the estate of Julia McEuen and that Mae Henning, being an interested party, could not so testify, because such testimony would be equally within the knowledge of the deceased Julia McEuen.* As to that, the plaintiff bases her cross appeal on the claim that the court was in error in excluding such testimony.

The amount of the net take-home pay earned each by Julia McEuen and her husband while working at Gerber's is not in dispute. Julia McEuen earned $11,804.05 and Lloyd McEuen earned $19,074.69 as net wages, the actual take-home pay of each of them. Their living expenses while they were working for Gerber averaged about $110 per month. Deducting their living expenses from Lloyd McEuen's take-home earnings from September 1, 1942, to the time of Julia's death in November, 1950, and also deducting his allowance of $2 per week, would leave approximately the amount of money "salted down" which he found in the coffee can in the closet of their home. Furthermore, the amount of money which Mac Henning claims to have had belonging to Julia McEuen in the summer of 1950, but as to which she was not allowed to testify that she had returned it to her sister Julia before her death, would be approximately the $9,040 which Mae Henning claims was the amount found by the defendant in the coffee can.

The burden of proof rested on the plaintiff to prove that the money the defendant found in the coffee can belonged to Julia McEuen. Plaintiff has not sustained such burden of proof. While Mae Henning testified that Julia McEuen during the summer of 1950 had left money in her possession, there is no proof as to what become of it. Whether the plaintiff still has it on deposit in a bank or in a safety deposit box, or, if not, what has become of it, is left to conjecture. The trial court concluded:

"He (the defendant) had nothing to say in the management of the house so far as the finances were concerned. She kept the money. What became of it (the mingled fund) we do not know, only by conjecture, at least only in part.

"We do know when she died her husband found $8,800 in a can. It is the conclusion of this court and the only approach to equity, as I see it, that this was the joint fund of the parties to this suit. It is a case, in which, in my opinion, their earnings and their savings had been pooled together for the joint benefit of each."

The defendant claims that the court erred in decreeing him only half of that amount. We are unable to agree with the conclusion that half of the $8,800 belongs to the estate of Julia McEuen. There is no proof to establish how much or what proportion of that $8,800 was contributed by Julia McEuen. Either the entire fund in the coffee can was contributed by her and belongs to the estate, or the entire amount belongs to the defendant. With that conclusion, at least, counsel for both parties are in accord — each claims the entire fund. There is no question but that Mae Henning had money in her possession which belonged to her sister. A disinterested witness testified that on September 15, 1950, about 2 months before her death, Julia McEuen told her that she did not put her money in a bank, that she did not trust banks, and that she sent her money to her sister in Grand Rapids (the plaintiff). Another witness testified that Julia McEuen told her that she (Julia) at one time had $6,000 in a deposit box in Grand Rapids, and that she sent her money to her sister.

We hear chancery cases de novo and our conclusions are based on the record before us. We have no way of knowing the extent to which the trial court may have been influenced by the advantage of seeing and hearing the witnesses. It seems unlikely that plaintiff would have returned $9,085 to her sister Julia shortly before Julia's death after Julia for years had followed the practice of entrusting her money to the care of the plaintiff. Furthermore, it is not likely that Julia would entrust all of their combined earnings or those of Lloyd McEuen to her sister, contrary to her custom in handling their earnings of "salting it down." And lastly, if the entire $8,800 belongs to the estate, Lloyd McEuen would have nothing for his earnings of over $19,000 from working at Gerber's approximately 8 years except 10 shares of Gerber stock, the value of which is not shown by the record.

The record does not support the conclusion that any part of the money in the coffee can belongs to the estate. As to that, the plaintiff's burden of proof fails. As between plaintiff, as administratrix, and the defendant, the fund in the bank is the property of the defendant.

Plaintiff-cross appellant claims that the court erred in denying her the right to testify that she had turned over $9,085 to her sister shortly before her sister's death. While the court permitted plaintiff to testify that she had that amount of money belonging to her sister Julia in her possession during the months of July, August and September before her sister's death in November, it is true that the record is barren of any proof as to what has become of it. Counsel for plaintiff-cross appellant now asks of this Court that "plaintiff's testimony upon the facts as she knew them concerning the money of Julia McEuen should be taken by deposition or reference for the further consideration of this Court." Counsel concedes that no separate record was taken or requested of the court to have such testimony in the record, but "respectfully asks that her testimony be taken under the statute and returned to this Court." If the excluded testimony were before us in a separate record the question would then be for our determination as to whether that testimony was admissible, under the statute which bars testimony equally within the knowledge of the deceased, and the precise question would be whether the fact that Mae Henning and the defendant Lloyd McEuen were both heirs-at-law of the deceased Julia McEuen would bar Mae Henning from giving such testimony. In the absence of such testimony in the record, or in a separate record, the question of its admissibility is not passed upon. Under these circumstances, the Court does not consider its admissibility or its effect if Mae Henning would have, or had, so testified.

"To preserve the question of the admissibility of excluded testimony in chancery cases for proper review, correct practice requires that a special record of the offered testimony should be made. Michiana Shores Estates, Inc., v. Robbins, 290 Mich. 384. In Counihan v. Hayes, 246 Mich. 390, we said:

"`Counsel should have taken such testimony under the provisions of CL 1915, § 12493,** or at least have asked the court for leave to do so. It was not sufficient to state upon the record what the testimony would show and then rely upon an exception to its exclusion. Had the practice been followed we would now have such testimony, and, if material and competent, could use it. One purpose of the statute is to prevent hearing chancery appeals piecemeal, and we decline to reverse the decree for the reason mentioned, and to remand the case to take further evidence.'

"In the case at bar, there is no showing on the record of what the witnesses would have said had they been permitted to testify. The excluded testimony was not taken under the provisions of the statute, nor was the court asked for leave to do so. Under these circumstances, this Court will not exercise its discretion to have the testimony taken and sent here." Kerns v. Kerns, 303 Mich. 23.

To the same effect, see Gross v. Housner, 322 Mich. 448.

In view of our conclusion that the entire fund belongs to the defendant, we need not consider plaintiff's claim that it amounted to $9,040 instead of $8,800. The decree is set aside and an order may be entered dismissing the bill of complaint, with costs to appellant.

NORTH, C.J., and CARR, BUSHNELL, SHARPE, and REID, JJ., concurred with BOYLES, J.

DETHMERS, J., concurred in the result.

BUTZEL, J., did not sit.


* See CL 1948, § 617.65 (Stat Ann § 27.914). — REPORTER.
** CL 1948, § 617.5 (Stat Ann § 27.853). — REPORTER.


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