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to the capacity of Mr. Du Bois to transact and handle his ordinary business affairs? (Same objection. Objection overruled. Exception for contestants.)
"A. Yes; I have an opinion.
"Q. What is that opinion?
"A. That he was perfectly sane and competent to make a will."
It will be noticed that the witness did not answer the question over which the colloquy occurred. The question he did answer was not subject to the same objection, and the ruling permitting an answer was not erroneous. The answer given was subject to the objection, on the part of proponents, that it was not responsive, and, on the part of the contestants, that it was really an answer to the question first put and subject to the objection which was debated. But no motion was made to strike it out.
5. At the close of the testimony, the court withdrew from the jury the question of undue influence, and this is assigned The examination of the record which this assignment makes necessary has been made. The will was executed October 23, 1906. The testator died December 12, 1906, at the age of 62 years. He left no widow and no children; his kindred being three brothers, a sister, and the two children of a deceased brother. The sister lived in Washington, D. C., one brother at Vassar, Mich., two brothers in California, and the nephews in Maine and New York, respectively. The legatees and respective bequests made are: To George, his brother, $1,000; to Charles, his brother, $3,000; to Mary, his sister, $2,000; to Edward, nephew, $1,000; to Nettie, widow of John, $1,000; to Matilda, wife of his brother, Samuel R., $3,000. Samuel R. is made residuary legatee. It seems to be conceded that of the property immediately disposed of by the will the residuary legatee would take very much. the largest portion. These provisions, and the one for payment of debts, etc., are found in the first eight numbered paragraphs of the will. In the ninth paragraph is a recital of decedent's interest, as legatee, in an estate in
Missouri, "which will be paid at intervals and in different amounts for a term of twenty years from the date of such will." Such sums as shall, after his death, be derived from this source the testator gives to Frank North, in trust, to hold and invest until the said 20 years shall have elapsed and the Missouri estate is closed, then to distribute, after paying taxes and expenses, to his brothers and sisters living at the time of the distribution, share and share alike, and if any are dead leaving descendants living at that time, such descendants to take the portion which would otherwise have been distributed to the ancestor.
Frank North, who is appointed executor and trustee, is cashier of, and a considerable stockholder in, a bank at Vassar. The lawyer who drew the will is the attorney of the bank and a personal friend of said North. Decedent formerly lived in and around Vassar, then at some point in the northern part of Michigan, then in Wisconsin, where he was a homesteader and where he lived alone. In 1904 he went to Hastings, Mich., where his brother Charles then resided, living with his brother, and from there to Vassar in February, 1905, to the home of his brother Samuel R. Du Bois, and lived with him the remainder of his life, some 22 months.
Notice of the bequest of a portion of the Missouri estate seems to have been received in May, 1905. With money from that source decedent purchased a farm of 100 acres, erected some buildings thereon, and placed it in charge of an agent. The necessary inference from the testimony is that decedent had accumulated very little property, had very little education derived from schools and books, was addicted to the intemperate use of liquor, which intemperate use increased with prosperity. That his intemperance frequently made him incapable of transacting business, and had an effect upon his general condition which hastened his death, are facts which may be said to be established by the testimony. The certificate given at his death stated the cause of death to be "inanition due to arterio sclerosis." To what extent his mental and physical capacity
had been affected at the time the will was made is the subject of much of the testimony presented to the jury. Some facts are established. He went Medina, N. Y., and to Washington, D. C., visiting, in February, 1906, remaining until about April 1st. In September, 1906, he attended the fair in Toronto, Canada, and on his return, after a day's absence in Saginaw, he attended the State fair in Detroit. There is much conflicting testimony, professional and other, concerning his physical condition in October, 1906, and thereafter. He applied to Frank North to draw his will and was referred to Mr. Fales, who did draw it, and, according to his testimony, it was drawn to express what testator desired to have expressed therein. The circumstances were presented to the jury.
We do not find any testimony which tends to prove the act, or fact, of solicitation of the decedent, or argument or persuasion, to make a will containing the provisions found in this one. Considering that each of his brothers and his sister profited equally with himself out of the Missouri estate, none of the provisions of the will clearly offend what is sometimes called natural justice or feeling. Undoubtedly, undue influence may be proved by other than direct testimony that it has been exerted, and circumstances disclosed by the will itself and the manner of procuring it to be made may raise the presumption that undue influence has been exerted. In re McMaster's Estate, 163 Mich. 210 (128 N. W. 259). Although it is contended by the appellants that the residuary legatee, the trustee and the lawyer who prepared the will were interested, each in a different way, in the preparation of such a will, it is not claimed that the interest and relations disclosed, and the will itself, give rise to the presumption referred to. It may be said here, as it was said in Hibbard v. Baker, 141 Mich. 124, 128 (104 N. W. 399), that if decedent was competent to make the will, there is involved no distinct question of undue influence. The court did not err in the ruling complained about.
6. Upon the question of the mental competency of the
decedent the verdict of the jury was taken. Upon this subject the charge is not criticised.
7. The portions of the arguments of counsel for the proponents which appear in the record evidence a trial somewhat bitterly contested. The practice of sending to this court in the bill of exceptions single and detached statements made by counsel in argument is not calculated, generally, to materially aid the court in determining whether the consequences should be a reversal of the judgment. Though such a penalty is sometimes imposed upon the client for misbehavior of counsel, it is for conduct prejudicial to the defeated party, not excused or palliated by the conduct or statements of counsel upon the other side, and not evidence merely of bad taste. Upon this record it appears that counsel for proponents improperly characterized the contestants and their counsel, and was rebuked by the court. We are not satisfied that contestants were prejudiced by the statements, since a jury is quite as likely to resent as to applaud unfair reasoning and vituperation.
The judgment is affirmed.
BIRD, C. J., and HOOKER, MOORE, and STONE, JJ., concurred.
CROSS v. GRIFFIN.
1. SPECIFIC PERFORMANCE-Pleading-SUFFICIENCY OF TITLE. In a suit for specific performance of a land contract, instituted by the vendee who avers a tender of the amount due and failure of the vendor to execute a sufficient deed, no issue can be raised without averring the claim in the pleadings, that the vendor, not having a good title to the premises, could not forfeit the interest of the vendee for a default.
Relief is rightly refused to the assignee cf a purchaser's rights under a land contract, which, for a default in stipulated payments, had been forfeited by the vendor taking possession of the premises with notice to the vendee, who afterwards assigned his interest to complainant.
Appeal from Newaygo; Palmer, J. Submitted October 27, 1910. (Docket No. 127.) Decided December 22, 1910.
Bill by Charles B. Cross against Albert E. Griffin and Lucy Griffin, for specific performance of a land contract. From a decree dismissing the bill, complainant appeals. Affirmed.
Cross, Vanderwerp, Foote & Ross, for complainant. John G. Anderson, for defendants.
OSTRANDER, J. Complainant, claiming to have succeeded to the rights of the vendee in an executory con. tract for the purchase and sale of land, files his bill against the vendor and his wife for specific performance. It appears from the contract, which is set out with the bill, and is dated November 30, 1901, that the purchase price was $250, and of this the vendee paid $150. The contract permitted the vendee to occupy the land. The vendor agreed, upon payment of the purchase money and payment of taxes, etc., to execute and deliver a good and sufficient deed, conveying a good and unincumbered title in fee simple. The forfeiture clause contained the following:
"And if he shall, at any time hereafter, violate or neglect to fulfill any of said agreements he shall forfeit all rights or claims under this contract, and be liable to the said party of the first part for damages, and shall also be liable to be removed from the said land in the same manner as is provided by law for the removal of a tenant that holds over after the expiration of the time specified in his lease. And it shall be lawful for the said party of the first