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12/10/75 FIRST NATIONAL BANK & TRUST COMPANY

December 10, 1975

FIRST NATIONAL BANK & TRUST COMPANY OF MARQUETTE, MICHIGAN
v.
ALBERT; (ESTATE OF ALBERT V. ALBERT)



Appeal from Gogebic, William F. Hood, J.

Leave to appeal applied for.

Allen, P. J., and Danhof and M. F. Cavanagh, JJ.

SYLLABUS BY THE COURT

1. Fiduciaries -- Evidence -- Benefits From Relationship -- Presumptions -- Burden of Proof.

The relationship between one who is incapable of attending to his business affairs and the one he relies on to manage those affairs is a fiduciary relationship; once such a relationship is established and the fiduciary or an interest which he represents benefits therefrom, the law presumes that he in whom the trust was reposed exercised his influence unduly and the burden shifts to the fiduciary to prove the validity of the transaction.

2. Evidence -- Presumptions -- Burden of Proof -- Rebutted Presumptions -- Equal Evidence -- Verdicts.

The raising of a rebuttable presumption shifts the burden of proof of the parties to an action, and where (1) plaintiff has the benefit of a presumption which has been rebutted and, thus, reduced to a permissible inference; and (2) the trier of fact determines the evidence of plaintiff and defendant to be equal, the trier of fact should return a verdict for the plaintiff.

3. Appeal and Error -- Conflicting Testimony -- Choice -- De Novo Review -- Record -- Different Result.

A trial court which hears sharply conflicting testimony may properly choose which testimony to believe, and an appellate court, in its de novo review will not disturb that decision where it is supported by the record unless the appellate court determines that it would have reached a different result.

The opinion of the court was delivered by: Allen

Complaint by the First National Bank & Trust Company of Marquette, Michigan, executor of the estate of George Albert, deceased, against Samuel G. Albert and Fred G. Albert to recover funds belonging to the estate. Judgment for plaintiff. Defendants appeal by leave granted.

The instant conversion suit brings to the Court's attention another appeal in a series of litigation involving the Albert family of Ironwood, Michigan. To our knowledge, no family has contributed so much to the length of the bookshelves of the Michigan Bar. *fn1

The facts concern the last year of the life of George Albert who died on November 24, 1970, at age 82, leaving by will an estate of approximately $250,000 to be equally divided among his ten children. From a judgment in favor of the executor requiring repayment to the estate of $33,400.00, plus interest, defendants appeal.

George Albert was a remarkable, independent, irascible, and affluent man. He imparted his fierce independence and much of his affluence to the siblings who participated in the instant family squabble: Samuel Albert, a physician in Ironwood; Fred Albert, a doctor of podiatry in Austin, Minnesota; John Albert, who owns the family clothing store; James Albert, a doctor of podiatry in Ironwood; Michael Albert, who worked in the family clothing store; and La Mese K. Davies. During the summer of 1969, the aged and terminally ill George Albert returned from the hospital at Duluth, Minnesota to his home in Ironwood. John Albert lived with George in the family home until December 22, 1969, and, up until October 21, 1970, took care of the father's business under a power of attorney.

By mid-December, 1969, George's health had deteriorated to the extent that family members agreed that Samuel Albert ought to take care of their father. Dr. Sam agreed to the assignment on the condition that he would be reimbursed for his services and that there would be no interference by other members of the family. From December 22, 1969, to his father's death on November 24, 1970, Dr. Sam cared for his father, charging $73,882.80 for services rendered. John Albert, acting under his then power of attorney, paid $26,876.12 to Sam during George's lifetime, leaving $47,606.75 due from the estate. The balance due has become the subject of litigation currently on appeal to this Court. *fn2 Dr. Sam described his father's condition when he first took over his care in December, as follows:

"His condition was very, very serious. In fact, I thought it was too late to come back on the case and do much good. But I agreed to devote all my time, that I could, as humanly possible, and he had a severe lung infection with multiple organisms that were very resistant because of the long standing exposure to various drugs that he had in the hospital. He had pulmonary emphysema. He had great difficulty in swallowing. Each time he attempted to eat, there would be repeated attacks of vomiting. And, with each attack of the vomiting, he would have a certain amount of aspiration into the lungs. He had Parkinson's -- and he was unable to do an awful lot of things -- I think could have been prevented -- before -- He had a large hydrocele; he had a large inguinal hernia; he had difficulty in speech, but he could, at all times, not only then but even later, comprehend and communicate with us through gestures -- through saying, "yes" and "no" and, often times, -- earlier in the care that I had -- he was making complete statements -- those would vary from period to period. But he was in constant need of care right around the clock."

Dr. James Albert, disputing Dr. Sam's contention that George was mentally alert, testified as follows with respect to the condition of his father in May, 1970:

"Q. Could he get out of bed by ...


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