39 Mich. 190 | Mich. | 1878
This is an action of ejectment, involving the construction of the will of George Young, late of Hamtramek. It was tried by the circuit judge without a jury, and is brought up on case made. There is no finding of facts by the circuit judge. On the face of the will serious mistakes are apparent, and in order to give it any construction, erroneous particulars must be rejected. It seems to have been assumed by counsel that we might take the evidence submitted on the trial, and in the light of it proceed to put a construction upon the will according to our view of what was probably the intent of the testator. But in doing this we should be drawing conclusions of fact, and the statute does not confer upon us this authority. The case must therefore be remanded for a finding of facts by the circuit judge, and for such further proceedings as the judge may order or permit. And it would be advisable, if the ease is likely to come up again, that the parties should go more fully into the facts in presenting their evidence.
No costs will be awarded upon the hearing which was had before us.
This may be a suitable occasion for saying that cases made are frequently brought to our attention, which, instead of presenting distinctly the points ruled upon, leave us to wade through a statement 'of proceedings in the court below, and to discover as best we may what were probably the conclusions of law upon the facts. This is irregular and may be misleading. A case made