Lawyer v. Smith

8 Mich. 411, 1860 Mich. LEXIS 50

• Court: Michigan Supreme Court
• Decided: July 9, 1860
• Status: Published

Opinion

Manning J.:

The will was made and executed in the state of New York; hut it is of no importance whether it was executed there or in Michigan, or whether the testatrix at the time was a resident of New York or Michigan, as the law of each state was complied with in its execution. Nor was there any error in admitting the depositions of Nolton, Hempstead, and Starrin, the witnesses to the will, to go to the jury as evidence of its execution and publication by the testatrix. It could not be expected, after the lapse of thirty years, they should recollect all the particulars attending- the execution. It was for the jury to give such weight to their evidence as they might think it entitled to, under all the circumstances of the case.

But the judge erred, we think, in refusing to receive evidence of the declarations of the testatrix • that she had destroyed her will, and in not admitting a letter of hers, stating- her will was destroyed. Such evidence is not admissible as proof in itself of a revocation, for the statute provides, “no will, nor any part thereof, shall be revoked unless by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction;” “ or by some other will, codicil or other writing- executed in the manner provided for the execution of'a will:” — Comp. L. 12833. The first we hear of the will after its execution in 1824, is the finding of it by Feeck in 1849, “in a barrel among- a lot of waste paper, newspapers, pamphlets, and some old letters.” He says, “it was sejiarated at the top, and was in a number of pieces, and the different pieces were scattered loose among the papers in the barrel.” It consisted of a number of half sheets of paper, some of which were separated in two pieces, and a piece was torn out at the top. He gathered them up, matched them, and fastened them at the top, and kept them in his possession five and a half years. A will found as this was, in a barrel among old letters and other papers of no account, and in the mutilated, condition stated, needs some explanation of these circumstances to admit it to probate. The piece torn out at the top and the separation of the half sheets can not be accounted for by the age of the instrument. They are evidence of violence, or an intentional injury to the instrument; but whether done by the testatrix or some other person; and if done by her, whether accidentally, or intentionally and for the purpose of revoking her will, were questions of fact to be determined by the jury. To aid them in arriving at a correct conclusion on these points, and not as separate and independent evidence of a revocation, we think the declarations of the testatrix should have been permitted to go to the jury, for what they were worth, under all the circumstances. See opinion of Chancellor Walworth, in Betts v. Jackson, 6 Wend. 173.

Foster was a competent witness for the will. Neither he or his wife, who is a legatee, is a party to the suit. His wife was interested in the matter in question, or in the event of the suit. But that is no disqualification under the statute, unless the suit is prosecuted “wholly or in part, in the immediate and undivided behalf” of his wife. In Freeman v. Spalding, 2 Kern. 372, it was held, under a like statute, that a residuary legatee was a competent witness for the executor, in a suit brought to recover a debt due the estate: — Bank v. Palmer, 2 Sand. 686; Hart, Admr. v. Stephens, 6 Q. B. 937 ; Kill v. Kitching, 3 M. G. & S. 299.

Judgment reversed and a new trial granted.

The other Justices concurred.