94 Mich. 304 | Mich. | 1892
Lead Opinion
This case was brought into this Court by certiorari, but, as the whole record was brought up, together with the exceptions taken at the trial, it was argued by ■counsel and heard as if brought here by writ of error.
Emily D. E. Stebbins, who is a granddaughter and one ■of the two sole heirs at law of Nehemiah D. Stebbins, who died testate, petitioned the probate court of Wayne
“When any testator shall omit to provide in his will for Any of his children, or for the issue of any deceased child, And it shall appear that such omission was not intentional, but was made by mistake or accident, such child, or the issue of such child, shall have the same share in the estate •of the testator as if he had died intestate.”
The probate judge denied the petition, and, upon an Appeal being taken to the circuit court for the county of Wayne, the question of fact was tried by a jury, who found that the omission to provide for the petitioner was •unintentional and accidental. Thereupon the circuit judge •caused a judgment to be entered that the petitioner was ■entitled to the same share in the estate of the testator as if he had died intestate. The circuit judge refused to decide whether he would consider the verdict of the jury as conclusive on the facts or advisory merely, but submitted to them these two questions of fact:
“1. Was the omission to provide in the will in question for Emily D. B. Stebbins intentional?
“ 2. Was the omission to provide in the will in question for Emily D. B. Stebbins due either to accident or mistake?”
The jury answered the first question in the negative and the second question in the affirmative.
The learned counsel for the estate insist that it was ■error for the circuit judge to submit these questions of fact to the jury, and that it was not such'a case as should have been tried before a jury, but that it appeals rather to the equitable jurisdiction of the court, and should thereforebe decided by the court without the intervention •of a jury. • We cannot agree with this contention The
Section 6783, How. Stat., provides that upon an appeal from the probate court the circuit court—
"■Shall proceed to the trial and determination of the-question according to the rules of law; and, if thére shall 'be any question of fact to be decided, issue may be joined thereon under the direction of the court, and a trial, thereof had by jury."
The fullest latitude has been given to this statute in this State both by the profession and the courts, and the-absolute right of a party to have all questions of fact in, this class of cases tried by a jury was settled by this Court, in Grovier v. Hall, 23 Mich. 11. This rule has never •been seriously questioned in any of the numerous cases; which have been in this Court for review, and we may well consider this right to be fully settled in this State.
The testator, in one clause of his will, after giving to» his son, Theodore W. Stebbins, the sum of $500, also gave» him the large family Bible, if he desired it, and, if not,.
It is also contended that the evidence in the case did
There was testimony in the case in reference to the circumstances attending the making of the will; the relationship and condition of the parties; the affection existing between them; the extent and frequency of their visits and correspondence; the age of the testator; his mental and physical condition, as evidenced not only by the will itself, and by the peculiarity of some of its provisions, but. also by his feeble condition about the time the will was made, and his death shortly afterwards. This class of testimony was all competent for the jury to consider, and from it they had a right to determine the questions submitted to them by the court. The relation of the testator to the objects of his bounty and to this granddaughter, as-well as his intelligence, his mental and physical condition,, and the circumstances connected with the making of the’ will, are all proper matters for consideration by the jury. Buckley v. Gerard, 123 Mass. 8; Converse v. Wales, 4 Allen, 512; Ramsdill v. Wentworth, 101 Mass. 125; Peters v. Siders, 126 Id. 135; Prentis v. Bates, 93 Mich. 234, and cases cited. And the omission to provide may be shown to be unintentional either by the terms of the will or by extrinsic parol evidence. Wilson v. Fosket, 6 Metc. 400.
The jury, therefore, having some evidence upon which to base their verdict, we have no right to disturb it, for we must hold in this case, and do hold, that the verdict
It follows that the judgment must be affirmed, with, costs.
Concurrence Opinion
I agree fully with my Brother Durand> that it was competent to try the question presented in this> case by a jury, and that the verdict of a jury stands precisely as in any civil case, and is conclusive in cases where' the testimony offered has any legal tendency to support, the conclusion reached. But, in my opinion, there was not a scintilla of evidence which had a legitimate tendency tc establish the fact that the intervener was omitted by mistake or accident.
It may be conceded that the contention of the learned counsel for the petitioner is correct, that the bequest of keepsakes to her does not amount to provision, within the-meaning of the statute. Does the mere failure to make such provision create a presumption that the testator omitted to make provision for her by accident or mistake? The language of the statute (section 3810, How. Stat.) ought to be a sufficient answer to this question. The; statute declares:
“ When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child, or the issue of such child, shall have the same share,” etc.
The statute does not, it seems to me, admit of a construction which shall dispense with a showing of either of the two requisites before one for whom provision is omitted shall be entitled to take. These two prerequisites arer First, an omission to provide; second, that it shall be-made to appear that the omission was by mistake. The; statutes in some of the other states, under which it has.
I think the finding of the jury should be reversed.