Brisbin v. Michigan Conference Ass'n of Seventh Day Adventists

Holbrook, P. J. This writer agrees generally with the facts as stated by Judge Churchill in his well-written opinion, but is constrained to respectfully disagree with the result reached because the — 194 — facts as this writer views them call for an affirmance. The basis for my brother’s reversal appears to rest upon his interpretation of the negotiations and communications concerning the possible sale of the trustor’s farm during late 1970 and early 1971. The facts concerning these matters are best gathered from the testimony of the various witnesses and the letter from Mr. Homer W. Trecartin to Mr. and Mrs. Edward Simmonds who were interested in purchasing the trustors’ farm. Mr. Trecartin testified in part as follows: ”Q. (Mr. Hughes, plaintiff’s attorney): Mr. Trecartin, at any time, did Mrs. Hartman tell you that she wanted to sell the farm? “A. No, she told me, she asked me what I thought about selling the farm at this time. She said, we have an offer. What do you think about selling the farm now? And I think, well, I won’t tell you what I think. But, she didn’t tell me, I want to sell the farm. She said, what do you think? Shall we sell the farm? It was not her intention in any way, if I have understood her to withdraw, merely to exchange the real property for money in the trust. And— "Q. That’s what you understand? ”A. That’s the way I understood what she said, and then the money would be, she would be drawing money from her own account and not advances on the trust. "Q. What do you base that understanding on? ”A. On our discussion. "Q. What did she say to you then? “A. She said, do you think that we ought to sell? If I recall— ”Q. She, at that point was placing her confidence in you and asking for your judgment? "A. If we ought to sell now, yes. ”Q. And at that point you discouraged her from selling? — 195 — "A I discouraged her from selling at that point. Later, later— * * * ”Q. When Mrs. Hartman talked to you about selling the farm, did you tell her that she should try to get more money for the farm? "A No, sir. ”Q. And at that time, did you think that the $25,000 proposal by Mr. and Mrs. Simmonds was a fair price? "A I didn’t know. ”Q. Did you propose to Mrs. Hartman that you do anything to find out? 'A Yes. ”Q. What did you propose? 'A. That we get some appraisal and talk to the bank and talk to the some of the realtors in the neighborhood that know the value of property and find out if we’re getting a fair price. ”Q. Do you recall Mrs. Hartman calling you in the early part of 1971, at your office in Lansing? ’A. Yes. "Q. Do you recall her asking you to come to see her? ’A. Yes, I do. ”Q. Do you recall her stating that she would like to talk to you about selling the farm? ’A. I don’t recall what she wanted to talk to me about on the phone, but I came up to see her. ”Q. And did she say that she wanted to see you right away? A. As soon as possible. ”Q. And when did you ultimately arrive following that telephone conversation? When did you see her? "A. I don’t have a record of the exact date, but it was very soon after. ”Q. And when Mrs. Hartman proposed selling the farm to you, did you tell her that we ought to hold off until spring? "A. I told her that we ought to know more before we take the first offer that’s made. We ought to investigate the value of the farm and know that we’re getting a fair price and I thought maybe towards spring would be a better time to put it on the market. — 196 — ”Q. And you were very concerned about the amount of money that would be gotten for the sale of this farm, were you not? "A. No, I wasn’t. I thought, I didn’t want her to be, to sell the farm for less than the value, but I wasn’t trying to get a lot more money than that. I thought we ought to have a fair price. As trustee, as representative of the trustee, I felt it my duty to sell the farm when we did sell it for the fair market value if possible. "Q. And as representative of the trustee, you felt this was your obligation? “A. I did. And Mrs. Hartman, too. We had no evidence at that time that Mrs. Hartman wouldn’t use all the money in the trust.” Elder Robert W. Boggess, who was a local pastor of the Hartmans’s church at Marion, Michigan, during the time when the trust arrangement was made testified in part as follows: ”Q. (Mr. Hines, defense attorney): While Elder Trecartin was talking with them, did they make mention of their family? Specifically their grandson and their granddaughter? "A. I don’t know whether they mentioned that right during the time we were discussing this trust agreement or not, right there at that time. I don’t recall. ”Q. Well, at any time on that day, do you recall their mentioning other members of the family? ”A. They mentioned other members of the family. Either on that day or on the next, the next date when Mr. Trecartin came back. I wouldn’t be sure just which day, maybe both days. ”Q. Well, recognizing that you’re not sure whether they mentioned the family on the late November date or the December 9th, date, what was said about the family? ”A. Mrs. Hartman made mention of the fact that they were not in need of any of the materials or properties that they had. "Q. Now, when you said they, the they is the grandson and granddaughter? — 197 — "A. The grand, that’s right. The grandchildren. ”Q. Were you aware of the fact that they had a granddaughter and a grandson? "A. Yes, sir. "Q. You were aware of that before this meeting, were you? "A. I believe that it was before the meeting. I believe, but here again, I wouldn’t just guarantee that it was before this meeting. My acquaintance with them had been over a period of better than a year and I’m sure that in conversation with them I had learned of their family.” The letter from Mr. Trecartin to Mr. and Mrs. Simmonds reads as follows: "November 16, 1970 "Mr. and Mrs. Edward Simmonds "Box 222 "Genesee, Michigan "Dear Mr. and Mrs. Simmonds: "A few weeks ago I visited Caroline Hartman, Marion, and she advised me that you had visited her regarding the purchase of the farm, and had made her an offer. "This came just as I was leaving for California for a month and I fully intended to write you while there but failed to accomplish it. "We have not considered selling the property as long as she wishes to live there, but it is becoming more difficult as months go on for her and it may soon be advisable to move ahead on this. "Now, you are not the first to request the privilege of purchasing, so it would seem best to keep this in mind and when it is decided to move ahead, advise each party and the one who is willing to make the best offer, could purchase. "As soon as we have a definite decision we will advise you. Thanking you for your interest and looking forward to making your acquaintance, I am "Sincerely, "H. W. Trecartin” — 198 — Mr. Edward Simmonds, who with his wife was interested in purchasing the farm stated that he had visited with Mrs. Hartman at four different times, the fourth and last visit being the one pertaining to the issue herein involved. He testified in part as follows: ”Q. (Mr. Hughes): About what time of day did you visit Mrs. Hartman? “A. I would have to say that it was probably about midday. ”Q. And would you describe that visit with Mrs. Hartman? 'A. Mrs. Hartman was ill at the time and she was in bed. She had a lady taking care of her. I do not recall the name. But, anyhow, we went in and visited her at the time. ”Q. And what took place on this visit with Mrs. Hartman? ’A. I had this letter with me and I asked about it and she was quite surprised. She didn’t seem to know anything about it. ”Q. Are you referring to the letter dated November 16, 1970, from Mr. Trecartin? "A. Yes, sir. ”Q. And you did show the letter to her? ”A. I showed the letter to her. "Q. And specifically, what was her response, if you recall? "A. Like I say, she was quite surprised. She didn’t seem to understand why this had been sent to me like this. ”Q. What did she say to you? 'A. She said that as far as she knew that the place was for sale, that she could do anything that she wanted to do with the farm as long as she was alive. ”Q- Did you read the letter to her or did she read it herself? ”A. I read the letter to her. ”Q. During the course of reading the letter, did she — 199 — make any specific remarks about the truth or non-truth of the letter? r'A. She said that in portions of it, I did not read fast but in portions. She said this is not the truth. I believe that probably this was the time that the farm wasn’t for sale, that we have decided not to sell it. I don’t recall the gist of the.letter, but I think this was it, when she, I recall her saying this is not the truth when I was reading that letter. * * * ”Q. Mr. Simmonds, did you state that Mrs. Hartman indicated that she wanted to contact her attorney for purpose of closing this sale? ’A. On the third visit, she was to contact her attorney so that we could get together for the close of the sale. Now, at the time, it was whether or not I could swing the deal, so to speak, financially on the terms that would be arranged, but this was the intent of getting together with the attorney.” Mrs. Arlene Simmonds, wife of Edward Simmonds, testified in part as follows: ”Q. (Mr. Hughes): When did you next see Mrs. Hartman, if you did? "A. In the winter. Sometime after the first of the year. It would have been late January or early February. "Q. 1971? 'A. 1971. ”Q. What occurred on that visit? ’A. Again, Mrs. Hartman was in bed. She said that she was just getting over pneumonia. She was very weak and we had taken the letter with us and she asked us to read the letter to her. And he read the letter to her at that time. "Q. Is that the November 16, 1970, letter from Mr. Trecartin? ”A. Yes. "Q. To your husband? 'A. Yes. That’s right. ”Q. Following, or rather did your husband read the letter in its entirety? — 200 — "A. Yes. "Q. Did he indicate from whom the letter was? 'A. Yes. ”Q. And what was Mrs. Hartman’s response during or following the reading of that letter? "A. It was during the reading of it. When he said that, oh, we had not considered selling the property as long as she wishes to live there. And then she said, that’s not true. ”Q. What else did she say? "A. Well, she said that she was willing to sell it yet. She was still willing. We had, you know, figured that she had decided against it when we got the letter, but she indicated that she was still willing to sell it. She said, I’m very weak now. I couldn’t do anything about it now, but maybe I’ll feel stronger in the spring and we can take care of things at that time. ”Q. Did she say anything more about her attorney? "A. Not that I recall. ”Q. At that point did she indicate to you whether or not anybody had any strings on the farm? ’A. No. No, she said that the farm was hers to do with as she wished as long as she remained alive. After her death, it would go to the church.” Mr. Howard Fosnaught, the funeral director for both Mr. and Mrs. Hartman, testified that he was called to their home a short time before Mr. Hartman passed away to make the funeral arrangements, and testified in part as follows: ”Q. (Mr. Hughes): They both are talking to you at this point? ”A. That’s right. They assured me that when the time came, when they passed away, that all I needed to do was to send my bill to the Michigan Conference of Seventh Day Adventists and the bill would be taken care of because they had decided and made out their papers to convey their property to this organization.” After Mr. Hartman passed away Mr. Fosnaught — 201 — took care of his funeral service and billed the Michigan Conference of Seventh Day Adventists, who paid the bill. About six months to a year before Mrs. Hartman passed away Mr. Fosnaught was again called to the Hartman home. Concerning this occasion Mr. Fosnaught testified in part as follows: ”Q. (Mr. Hughes): All right. Now, did there ever come a time after Mr. Hartman’s funeral when Mrs. Hartman alone talked to you about funeral arrangements? "A. Yes, she called me and asked me to come out and I did. I called on her and she wanted to go over her arrangements, pall bearers and everything, and again assured me where I should send my bill in case and when anything happened to her. "Q. When you say, assured you, how did she assure you? 'A. She told me that the arrangements was made the same as with Mr. Hartman. When she passed away my bill was to go to the Conference.” The bill for Mrs. Hartman’s funeral was likewise submitted to the Michigan Conference of Seventh Day Adventists and paid by them. The trial judge determined inter alia the following: "At no time during her lifetime did Caroline Hartman ever make any statements or comments, from the proofs, that she decided to change her mind and have her grandchildren take her estate, and not her church. In fact, the proofs are to the contrary. The funeral director who buried both Mrs. and Mr. Hartman testified that at various times he talked to Mr. and Mrs. Hartman and that at all times up and to shortly before the death of Mrs. Hartman they confirmed with him that the church would pay their funeral expenses in accord with the trust agreement and the deed. In fact, the church did pay the funeral expenses of both Mr. and Mrs. Hartman, in accord with the trust agreement — 202 — and the deed, and the court is convinced, from these proofs, that the Hartmans never intended to benefit their grandchildren at the expense of the church, but, in fact, desired the trust agreement to continue as it was and that their church was to take their property under the facts and circumstances that came about in this case.” It appears to this writer from the evidence produced at the trial that the chancellor hearing the matter correctly determined the issues involved in the case. There was never a firm understanding for the sale of the farm by Mrs. Hartman to the Simmonds, in fact, the Simmonds had never proceeded to the point where the terms of the sale were agreed upon. The discussions between Mr. and Mrs. Simmonds and Mrs. Hartman were preliminary in nature and were subject to an arrangement for the payment of the $25,000 satisfactory to Mrs. Hartman. She in turn desired the advice of Mr. Trecartin on this important subject. When they discussed the matter late in 1970 Mr. Trecartin advised Mrs. Hartman that there had been at least one other inquiry by a possible purchaser of the property, and that he thought it would be wise to have the property appraised and then submitted to possible purchasers in order to obtain a fair price for the farm, if it were to be sold. The trustee at no time did anything to stop Mrs. Hartman from selling the farm. At no time did Mrs. Hartman indicate her displeasure with the arrangement that she had made, nor did she indicate a desire to leave the property to her grandchildren. In fact, at the very beginning of the transaction Mr. and Mrs. Hartman indicated that the grandchildren did not need the property and further that they desired to do something for their church. The trustee did not owe any duty to sell the property in question to Mr. and Mrs. Sim — 203 — monds or to any other possible purchaser. Mrs. Hartman was well aware of the fact that she could revoke the trust agreement, but she chose not to do so. She did advise the Simmonds that she would wait until spring and at that time take care of the matter. The cases cited by my brother judge in his opinion, Waddell v Waddell, 335 Mich 498; 56 NW2d 257 (1953); Sloan v Silberstein, 2 Mich App 660; 141 NW2d 332 (1966); and In re Culhane’s Estate, 269 Mich 68; 256 NW 807 (1934), are authorities for the rule that a trustee is liable to the beneficiary for any improper act or withholding of an act by the trustee. In this case we do not have any violation of a duty by the trustee, to the beneficiary, the church. We do not have any violation of a duty by the trustee to the trustor unless we assume that the trustor Mrs. Hartman desired to revoke the trust but was prevented from so doing by the trustee. This writer does not believe the facts justify such an interpretation. Our Supreme Court set forth our duty in regard to reviewing equity cases de novo in the case of Biske v City of Troy, 381 Mich 611, 613-614; 166 NW2d 453, 455 (1969): " 'We hear and consider chancery cases de novo on the record on appeal. Johnson v Johnson, 363 Mich 354; 109 NW2d 813 (1961); Osten-Sacken v Steiner, 356 Mich 468; 97 NW2d 37 (1959); Futernick v Cutler, 356 Mich 33; 95 NW2d 838 (1959); A & C Engineering Co v Atherholt, 355 Mich 677; 95 NW2d 871 (1959); Straith v Straith, 355 Mich 267; 93 NW2d 893 (1959); Ball v Sweeney, 354 Mich 616; 93 NW2d 298 (1958). This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in — 204 — an equity case unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge.’ ” Christine Building Co v City of Troy, 367 Mich 508, 517-518; 116 NW2d 816, 820 (1962). In considering this equity cause de novo according to the above rule this writer defers to the trial judge’s determination of the facts and agrees with his decision to deny the plaintiff relief. Affirmed, with costs to the defendant. T. M. Burns, J., concurred.