152 Mich. 194 | Mich. | 1908
Francis Dowell, a son of deceased, on April 7, 1906, presented to the probate court for Monroe county his petition in the usual form for the appointment of himself or some other suitable person administrator of the estate of his father, Jacob Dowell. David, William, and Howard Dowell, the other sons, constituting, with petitioner, the sole heirs of Jacob Dowell, thereafter presented their petition, alleging that Jacob Dowell left three • papers in the form of warranty deeds which they claimed constituted his last will, and which they asked to have allowed as such. The probate court allowed the deeds as the will of Jacob Dowell. Francis Dowell, appellant, appealed from the allowance of these deeds as the last will of his father. Each deed contains the following: “This conveyance is not to become operative during the lifetime of said first party [Jacob Dowell].” The case was tried in the circuit court. After the testimony was all in the judge directed the jury to find a verdict in favor of proponents. The case is brought hereby writ of error.
Testimony was admitted as to what was said by Mr. Dowell at the time the papers were drawn. A motion was made to strike out this testimony. The motion was overruled. This is said to be error. No objection was made to the admission of the testimony. Counsel for contestant examined the witnesses fully in relation thereto. The testimony was part of the res gestee, and was competent; see Leonard v. Leonard, 145 Mich. 563.
The court declined to allow Moses Dowell and his daughter to express an opinion that Jacob Dowell was incompetent. This is said to be error. We have read the testimony of these witnesses with care, and find nothing therein which would qualify them to express such an opinion. See Fraser v. Jennison, 42 Mich., at page 227; O'Con
It is said error was committed in refusing to submit the case to the jury on either the theory of undue influence, or want of mental capacity. The testimony is undisputed that Mr. Dowell went to the scrivener alone and gave him directions as to what he wanted done. He also went alone and got an old acquaintance of his to go to the scrivener to act as a witness. We have had occasion recently to discuss the question of testamentary capacity, and the question of undue influence, in Leffingwell v. Bettinghouse, 151 Mich. 513. It is not necessary to repeat here what was said in that case. We shall content ourselves by saying there was nothing to show want of testamentary capacity, nor was there anything to show undue influence.
The instruments offered for probate though in form deeds under the proofs in the case constituted in fact a will. Bigley v. Souvey, 45 Mich. 370; Lautenshlagerv. Lautenshlager, 80 Mich. 285; Ferris v. Neville, 127 Mich. 444 (54 L. R. A. 464); Lincoln v. Felt, 132 Mich. 49; Clay v. Layton, 134 Mich. 337, and cases there cited.
Judgment is affirmed.
