Harring v. Allen

• Decision Date: 15 October 1872
• Court: Michigan Supreme Court
• Parties: Garret G. Harring and others v. Catharine Allen

25 Mich. 505

Garret G. Harring and others v. Catharine Allen

Supreme Court of Michigan

October 15, 1872

Heard October 10, 1872

Error to Lenawee Circuit.

Order of the court set aside, with costs, and a new trial ordered.

C. A Stacy, for plaintiffs in error.

A Howell, for defendant in error.

OPINION

Graves J.

This is a writ of error brought to reverse an order of the circuit court for the county of Lenawee, reversing an order of the probate court of that county, which adjudged that Jacob D. Harring, late of that county, died intestate.

It appears by the record, that the decedent in the fall of 1864, made a will containing a devise to his daughter, Mrs. Allen, the defendant in error, and that Ebenezer Harmon, one of the plaintiffs in error, and administrator under the order of the probate court, was named executor, and that, from the time it was made, he had the custody of the will until a few days before the death of Mr. Harring, which occurred in February, 1865, when it went into the custody of the latter, and was either destroyed, or disposed of in some way, so as not to be forthcoming. An issue was framed in the circuit court, and the case was there tried by jury.

The former existence of the instrument seems not to have been controverted on the trial. Evidence was given of its regular execution, and of its contents. Mrs. Allen, who propounded it, claimed that it had been fraudulently destroyed or suppressed; and the plaintiffs in error maintained that it had been legally revoked by its author, by tearing it during his last sickness; and are also understood as having insisted that it was originally procured to be made by undue influence.

The only questions in the case, relate to rulings upon the admission of evidence, and so far as material, they fall under two general heads. Anticipating that the defendant in error would rely upon a clause in the statute of 1861, relating to evidence, to support several of the rulings of the circuit judge, the counsel for plaintiffs in error argued, that the statute was not applicable. But the counsel for defendant in error not having relied upon the statute, we find it unnecessary to show its inapplicability.

The plaintiff in error gave evidence conducing to show that decedent tore the will in pieces, and then directed it to be burned, and that it was burned accordingly. If these acts occurred as represented, if they were spontaneous, and if the old gentleman had, at the time, the requisite mental capacity, the will was revoked. But it was not conceded that the old gentleman did tear the will or direct it to be burned. The plaintiff in error also offered to give in evidence declarations of decedent, manifesting dissatisfaction with the dispositions of the will, which expressions, however, were not made at the time of the imputed acts of...