202 N.W. 919 | Mich. | 1925
On July 18, 1919, decedent, Grace Conner, executed a will which, after making several specific bequests gave the residue of her estate to her husband, Richard Conner, if he survived her, and if not, certain real estate was devised to Mary Hammond, who was the widow of a deceased son of testatrix by a former marriage. About the same time Richard Conner made his will. Mrs. Hammond was named executrix of that will. Richard Conner died July 31, 1921, and his will was admitted to probate and Mrs. Hammond qualified as executrix. Differences and disputes arose between her and Mrs. Conner over her management of the estate and she resigned as executrix and George W. Bates was appointed administrator de bonis non with the will annexed. October 31, 1921, Mrs. Conner executed the will which is here in contest; it contains ten specific devises and bequests, none of which are to Mrs. Hammond, and gives the residue of the estate to Ida M. Bates, and names her "former pastor George W. Bates" as executor; he was the husband of Ida M. Bates. Mrs. Hammond contests the admission of this will to probate on the usual grounds of want of mental capacity and undue influence and asserts her right so to do by reason of the provisions of the former will. The trial judge withdrew the question of mental capacity from the jury but declined to direct a verdict for proponent on the question of undue influence and declined to enter judgment for proponent, notwithstanding the verdict, having reserved that question under the Empson act.
The contest on the grounds of undue influence is *401
based on three premises: (1) That George W. Bates, husband of the residuary legatee, was the spiritual adviser of testatrix, (2) that the will was drawn by his attorney, and (3) that a large sum passed under the residuary clause. And it is insisted that the duty, therefore, of explanation was cast upon Mr. Bates. If these premises found support in the record a more serious question would be presented for our consideration. The difficulty we find in following contestant's contention, however, grows out of the record before us which fails to support the premises above noted. Claims of counsel no matter how vigorously asserted do not in the absence of testimony supporting them take a case to the jury. Boudeman v. Arnold,
The will was drawn by Jonathan Palmer, Jr., a reputable attorney, who at the time represented Mrs. Conner in a suit brought to condemn some of her property; he was also attorney for her husband's estate. *402 On the occasion of the execution of the will she was brought to Mr. Palmer's office by Mr. Bates, who did not remain. She went over the matter fully with Mr. Palmer and the will was prepared according to her instructions and was executed by her and witnessed by Mr. Palmer and his stenographer. And while the stenographer refers to Mr. Bates as a client of Mr. Palmer, he testified that he represented the estate of Mr. Conner, having been employed by the administrator, Mr. Bates, so to do but that he never had any law business for Mr. Bates personally although he had known him for a number of years. It should also be stated that the record does not disclose the value of the estate or of that portion covered by the residuary clause.
One would encounter very substantial difficulties in attempting to distinguish the instant case fromBlackman v. Andrews,
"Emphasis is laid upon the circumstance that Blackman, though present in court, and active in endeavoring to procure the probate of the will, did not take the stand as a witness. This circumstance is utterly unimportant, unless contestant offered evidence tending to prove the impropriety of his conduct. The failure of a party to take the stand may strengthen the inference to be legitimately drawn from the testimony in the case, but it does not warrant an inference in no manner justified by that testimony. If it were otherwise, the plaintiff in any suit could submit his case *403
without testimony and demand a verdict and judgment because the defendant remained silent. The most that can be said in support of contestant's claim that there was evidence of undue influence is this, viz., there was opportunity for its exercise. It is well settled that that is not enough. SeeSeverance v. Severance,
The contestant upon this record failed to make a case for the jury on either of the grounds of contest. A verdict should have been directed for proponent on both branches of the case. The judgment must, therefore, be reversed and the case remanded with directions to enter judgment sustaining the will notwithstanding the verdict. Proponent will recover costs of both courts.
McDONALD, C.J., and CLARK, BIRD, SHARPE, MOORE, STEERE, and WIEST, JJ., concurred.