IN RE UPJOHN ESTATE
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of UPJOHN.
NATIONAL CITY BANK OF THE MIDWEST,
TRUSTEE,
UNPUBLISHED
February 23, 2010
Petitioner-Appellee,
v
PHARMACIA & UPJOHN COMPANY, L.L.C.,
No. 278668
Kalamazoo Probate Court
LC No. 1956-020742-TT
Respondent-Appellant,
and
KALAMAZOO COMMUNITY FOUNDATION,
Respondent-Appellee,
and
ATTORNEY GENERAL/CONSUMER
PROTECTION AND CHARITABLE TRUSTS
DIVISION,
Intervening-Appellee.
Before: Murray, P.J., and Markey and Wilder, JJ.
MURRAY, P.J. (concurring).
I concur in the lead opinion reversing the trial court’s order and holding that The Upjohn
Company continues to exist and function as contemplated by Dr. Upjohn’s will. However, rather
than concluding that the Kalamazoo Community Foundation and Attorney General are barred by
res judicata from raising whether changes to the corporate structure prior to 1962 and 1996
caused the company to no longer exist or function, I would simply hold that the Foundation
waived any such argument at the 1996 hearing, see People v Dobek, 274 Mich App 58, 65; 732
NW 2d 546 (2007), citing People v Carter, 462 Mich 206, 215, 219; 612 NW2d 144 (2000), and
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that both the Foundation and the Attorney General are “estopped by laches from now questioning
the righteousness of” the prior orders enforcing and upholding the trust. Sprague v Trustees of
Protestant Episcopal Church, 186 Mich 554, 564; 152 NW 996 (1915). With respect to the
assertions that The Upjohn Company ceased to exists or function based on events occurring since
1997, I fully concur in the lead opinion’s rationale and conclusions.
/s/ Christopher M. Murray
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