193 Mich. 223 | Mich. | 1916
A paper purporting to be the last will and testament of Esther T. Wynn, deceased, was admitted to probate in the county of Ottawa. An appeal was taken by Grace De Witt, on the grounds of mental incompetency and undue influence, and these issues were tried out in the circuit court before a jury, resulting
The rule which enables one to contest a will is generally stated as follows:
“Under the statutes generally an action to contest a will can be brought only by a ‘person interested’ at the time the will was admitted to probate. Such ‘persons interested’ include not only those named as beneficiaries in the will, but also those who would share in the estate in case of intestacy such as the heir, or next of kin, and those interested under a prior will.” 40 Cyc. p. 1241.
See, also, 16 Enc. Plead. & Prac. p. 1009; 1 Beecher’s Probate Law & Practice, § 509; Williams v. Bailey, 186 Mich. 677 (153 N. W. 39).
The substance of the evidence which appears in the record bearing upon the question of the interest of contestant is that she is no relative of the deceased; that she was taken when 2 years of age by the testatrix, cared for and maintained until she was 17 years of age, at which time she was married and left the home of the testatrix. Many expressions of kindly feeling toward the contestant were testified to as having been made by the testatrix. To some she stated that the contestant “should have all of her property”;
We do not think such a showing sufficiently appears by the record in this case. The former will was not produced; neither was it accounted for. If it were lost, no evidence was given of its contents, other than that referred to. In the case of Kostelecky v. Scherhart, 99 Iowa, 120 (68 N. W. 591), a very similar question was presented. In that case the proof was made of the due execution of the prior will, and that the formalities of the law were complied with in its execution. It was held in that case that the showing was sufficient to show the interest of the contestant.
In the case under consideration, the proofs leave it uncertain as to whether she was a legatee at all. There was no showing that the formalities of the law were complied with in the execution of the prior will, as in the case cited, and, as before said, no effort was made to produce the will or to account for it, except the statement of the scrivener who had at one time the possession of it that he delivered it to the testatrix, but was not certain when he did so, and that it was not found among her papers. We think that under the state of the proofs at the time the request was
The record discloses that the testatrix was an old lady 78 years of age when she executed the will in May, 1914. At that time she was living alone, as she had been for several years. She did her own housework and looked after her own business affairs. She was a devoted member of the Methodist Church, and was a member of the church board. She attended church regularly on Sunday, and prayer meeting on Wednesday evening, and gave generously of her means to the church. She made frequent visits to Chicago to see her foster daughter, going and returning alone. In May, 1914, she returned from one of her visits, and the following day went unaided and alone to an old resident who drafted papers and dictated a simple will providing for the'payment of her debts, a small legacy to the husband of her foster daughter, and gave the residue to a Mrs. White, one of her neighbors. She gave as a reason for changing her will that upon her recent visit to her foster daughter in Chicago she had not been treated well. She gave as a reason for giving the property to Mrs. White that she had been kind, and aided her in sickness. Several women acquaintances gave it as their opinion that she was not mentally competent to execute the will in question. Their reasons for so thinking were that she had failed in health after her sickness in 1912; that she had complained at times of her head; that she was at times forgetful, and at other times would repeat her words, and forget what she was conversing about. Nothing was detailed by them other than what comes to nearly
Neither do we think he should have submitted to the jury the question of undue influence. The charge of undue influence was directed at Mrs. White, the beneficiary. There is no testimony showing that Mrs. White exercised any undue influence over her, or even attempted to influence her with reference to her property, or that she ever had any talk with her with reference to its disposition. The only thing shown was that she had an opportunity, but even the opportunity must have been somewhat brief, because the testatrix was home from Chicago only a few hours before she changed her will. Some attempt was made to show that Mrs. White refused to send for contestant during the last illness of the testatrix. One of the contestant’s witnesses testified that she asked the testatrix if she wanted Grace to come, and she nodded that she did not. The record shows without contradiction that Mrs. White was following the direction of testatrix in not sending for contestant.
For the reasons indicated, the judgment is reversed, and a new trial granted. Proponent will recover her costs.
