298 N.W. 118 | Mich. | 1941
On January 21, 1936, Anna Wawrzyniak executed an instrument in the form of a warranty deed conveying her home in the city of Detroit to Aloysius, her son, and Clara, his wife. The instrument contained the following clause:
"This deed is made with the understanding that the same is not to take effect or be enforced until the death of the grantor and upon the death of the grantor is to take effect and at that time to vest in the said grantee the absolute title in fee simple of the property above described, conditioned however that the grantee shall properly house, clothe and feed grantor and upon her death to furnish her with a suitable and Christian burial. In the event of a violation of any of these conditions, this instrument shall become null and void. The grantee shall forfeit all right or title to said property and all interest therein shall revert without notice to the grantor her heirs and assigns."
It further recited that it was signed by Anna Wawrzyniak in the presence of Cass Piotrowski and Michael Wawrzyniak, and was signed by these parties as witnesses. On July 7, 1939, Mrs. Wawrzyniak died. Thereafter, an instrument dated January 19, 1934, was filed in the probate court for Wayne county and petition was made for its allowance as her last will and testament. The instrument was ordered to be admitted to probate, but the order was subsequently set aside on the filing of the aforementioned deed in probate court and the petition for its allowance as a will. John and Edward *522 Wawrzyniak then filed notice of contest and the instrument and proceedings thereon were duly certified to the Wayne county circuit court.
On the hearing, it was held by the circuit court that the instrument, in form a deed, was a will; that the conditions of clothing, feeding, and housing grantor therein mentioned were fully carried out; and the court adjudged that the instrument should be admitted to probate. Contestants appealed, claiming that the instrument was not a testamentary disposition of decedent's property; that there was no proof of revocation of the earlier will; and that the court erred in refusing to permit the prior will to be received in evidence.
An instrument, in form a deed, to take effect after the death of the testator, is entitled to probate as a will, if executed with the formalities of a will, as prescribed by statute.Lautenshlager v. Lautenshlager,
Contestants claim that the burden of proof was upon proponents to prove "soundness of mind and capacity" on the part of the testator at the time she executed the deed. But the presumption is that the testator has mental capacity, and the burden of proof is upon a party assailing such capacity. In reCurtis' Estate,
A subsequent will revokes a prior inconsistent will by implication. In re Reycraft's Estate,
Judgment affirmed, with costs to proponents.
SHARPE, C.J., and BUSHNELL, BOYLES, CHANDLER, NORTH, WIEST, and BUTZEL, JJ., concurred.