201 Mich. 504 | Mich. | 1918
The testator, Frank Marx, an unmarried man, executed the will in question some eight months prior to his' death. He was 49 years old at the time of his decease. The will contained several specific bequests to relatives, friends, employees, and for religious and educational purposes, a specific devise of his interest in the Marx homestead to his sister and her daughter, and left the residue to his two brothers, John and William, and his two sisters, Emma and Henrietta, with the proviso that William’s heirs should hot take his share if William did not survive testator, but the heirs of the others should take by right of representation. Contestant is the daughter of Joseph Marx, a deceased brother of testator. She contests this will on the grounds of mental incapacity, undue influence, and:
“Third: Because the deceased forgot the existence of this contestant at the time he made the paper writing, and being afflicted with as many boils as Job, the torture of which perverted his mind.
“Fourth: Because the paper writing offered as the last will and testament of Frank Marx, deceased, was the produce of prejudice and a lack of comprehension of the laws of this State and of God’s as well.
“Fifth: Because the paper writing offered in evidence to this court is the result of prejudice and fanaticism wholly ungrounded in fact and unjust.
“Sixth: If deceased entertained any prejudice to this contestant it was the result of an unjustified wrong he did contestant’s father without cause or excuse at a time contestant was a babe in arms.” * * *
The will was admitted to probate by the probate
The witnesses called by contestant establish beyond question, either by their testimony given on direct or cross-examination, that Mr. Marx, the testator, was a man of affairs, successful in a high degree as a business man, leaving an estate said to be worth in excess of a hundred thousand dollars; that he was liberal to a fault, traveled extensively, and was competent to successfully conduct his large business affairs and to make the will in question. No witness testified to a single act in his entire life showing, or tending to show, any want of mental capacity, any insane delusions, any impairment of mental vigor, or any fact justifying the submission of the question of mental capacity to the jury.
Nor are we able to find in this record any evidence having the slightest tendency to establish undue influence. Indeed, the testimony of contestant herself refutes the claim that he was a man who could be influenced to do anything contrary to his own inclination. A few excerpts from her testimony demonstrate this. She testifies:
“Q. Mrs. Morrison, was your uncle a man determined—
“A. He was.
“Q. He was?
“A. Yes, sir.
“Q. He was not easy-going?
“A. No, sir.
“Q. Pretty hard man to control if he made up his mind?
“A. I should judge he was.
“Q. Very difficult man to influence, wouldn’t you say so?
*507 “A. I should judge he was. * * *
“Q. But he was a man, in his life there, as you saw, who was in the habit of giving orders rather than taking them, isn’t that true?
“A. He gave orders, yes.
“Q. The rest of them did what he wanted them to cio ? ^ ^
“A. I never saw him around any one who could get him to do anything.”
Upon the argument much time was devoted by counsel to the claim that deceased had an unnatural hatred for contestant. Much space in the brief is devoted to this subject. It ought not to be necessary for us to say that cases must be disposed of on the record as made, and failure of proof on a given subject may not be supplied by the unsupported statements of counsel. It is one of the functions of counsel to draw legitimate inferences from the facts proven; but it is not one of the functions of counsel to enlarge the record by voluntary and unsupported statements of facts in the brief, statements setting up facts which have been testified to by no witnesses, nor properly inferable from those established. When we turn to' the record we find no evidence of an unkind word by deceased to, or of contestant, or by any member of the Marx family. Contestant herself testifies that she was always treated pleasantly and kindly whenever she went there. When deceased returned, from Europe he remembered her with a souvenir of his trip, bought abroad; on one occasion when she contemplated building he offered to assist her in procuring the money; some five months after the making of the will in question hé contracted with contestant and her mother to buy 20 acres of land received by them from the estate of Marx senior, and which was bringing them at the time an income of from 40 to 60 dollars per year, agreeing to pay $10,000 for the property and making a substantial down payment; they had talked with him about this
“Q. When John Marx talked of your wife what name did he apply to her?
“A. Gracie.
“Q. Gracie. Now, then, now, having answered that question, what was said by either himself or family— what opinion they had of Gracie?
“A. I always understood them that' she was all right.
“Q. Did he say so?
“A. Yes, he has; he has always said so to me.”
In the face of this record, the claim that this will was the product of an unnatural hatred entertained by the testator, or entertained by any member of the Marx family, and vented upon contestant by undue influence over testator is preposterous and without foundation.
In the will testator gave a bequest to the children of his deceased brother, Nicholas, and made the provisions with reference to the homestead we have referred to; but to no other nephew or niece did he give anything. How many there were does not appear, but that there were others than contestant the record discloses. It was for the testator to select the objects of his bounty. His to give and his to withhold. What nephews or nieces, if any, should enjoy that bounty was for his determination, not for courts and juries.
But it is urged that testimony was excluded by the court which, if received, would have sustained contestant’s claim. It therefore becomes necessary to ex
Contestant called a physician and propounded to him a hypothetical question. This question assumed facts which had not been testified to and omitted material facts which had been testified about, and was objected to on that ground. The objection was sustained; but the court indicated to counsel the proper lines along which he would receive such expert testimony. Instead of accepting such suggestion counsel retorted :
“Your honor, please, I have practiced law 42 years and I propose to play my own hand without any assistance.”
The court having properly ruled upon the question, and having properly indicated along what lines counsel might proceed, we cannot understand upon what theory a reversal should be ordered on this ruling.
We have examined all the other errors assigned. None of them possess any more merit than those discussed.
We have read this record containing 281 pages with care, and find between its covers no scintilla of evi
Section 13705, 3 Comp. Laws 1915, provides:
“Upon appeals from probate courts to a circuit court, and from the circuit courts to the Supreme Court, costs shall be paid by the appellant or appellee, as shall be directed by the court to which the appeal is made; and upon affirming any sentence; detérmination or decree, or upon the appeal being discontinued or quashed, the court may, in its discretion, award damages. for the delay and vexation caused by such appeal.”
This court has on occasions awarded damages for vexatious appeals. Campau v. Campau, 25 Mich. 127; Heath v. Waters, 40 Mich. 457; Snow v. McCracken, 107 Mich. 49. This should not be done except in plain cases. The contest in the instant case has been without merit from its inception. It has been heard in three courts, entailing large expense upon the estate with no substantial foundation for its beginning, and no basis for its continued prosecution. It is clearly within the purview of the statute.
The judgment of the court below is affirmed, with an award of $100 damages for the vexatious appeal,