38 Mich. 412 (Mich. 1878), Pierce v. Pierce

Citation:38 Mich. 412
Opinion Judge:Campbell, C. J.
Party Name:Emeline E. Pierce et al. v. Loren Pierce et al
Attorney:Arthur Brown and H. F. Severens for plaintiffs in error. May, Buck & Powers and Edwards & Sherwood for defendants in error.
Case Date:April 02, 1878
Court:Supreme Court of Michigan

Page 412

38 Mich. 412 (Mich. 1878)

Emeline E. Pierce et al.


Loren Pierce et al

Supreme Court of Michigan

April 2, 1878

Submitted January 16, 1878

Page 413

Error to Kalamazoo.

On appeal from the probate of the will of Isaac Pierce, the will was held invalid. Proponents bring error.

Judgment reversed with costs and a new trial granted.

Arthur Brown and H. F. Severens for plaintiffs in error. Undue influence, to be ground for setting aside a will, must be shown to have been exercised in every act of its execution, McMahon v. Ryan, 20 Penn. St., 329; Eckert v. Flowry, 43 Penn. St., 46; Shailer v. Bumstead, 99 Mass. 121; Elliott's Will, 2 J. J. Marsh., 340; Jackman's Will, 26 Wis. 104; Redf. on Wills, 740; Rutherford v. Morris, 77 Ill. 413; Tawney v. Long, 76 Penn. St., 106; Rudy v. Ulrich, 69 Penn. St., 177; affectionate influence is never undue, Gardiner v. Gardiner, 34 N. Y., 155; intoxication does not deprive one of the power of making a will unless he is so drunk as not to know what he is about, Peck v. Cary, 27 N. Y., 11; Redf. on Wills, 326; Duffield v. Morris' Ex'r, 2 Harr. (Del.), 375.

May, Buck & Powers and Edwards & Sherwood for defendants in error. Proof that husband and wife had lived together in adultery is admissible to show that the wife had strong influence over the husband, Dean v. Negley, 41 Penn. St., 312; Wallace v. Harris, 32 Mich. 394: Kessinger v. Kessinger, 37 Ind. 341; it is proper for a jury to consider the justice of a will in determining whether it was in fact the testator's, Clark v. Fisher, 1 Paige 171; Fountain v. Brown, 38 Ala. 72; 1 Redf. on Wills, 515, 521, 527; a testator's declarations made before the execution of his will and showing that he was subject to undue influence, tend to show undue influence in making the will, Beaubien v. Cicotte, 12 Mich. 486; Harring v. Allen, 25 Mich. 505; a will made under undue influence cannot be made valid by subsequent recognition, Lamb v. Girtman, 26 Ga. 625; any pressure so exerted on the hopes or fears as to overpower volition without convincing the judgment, invalidates a will, Hall v. Hall, 37 L. J., 40. Where a will is contested on the ground of incapacity through intoxication, evidence is admissible tending to show for whom the testator had intended his property, Denison's Appeal, 29 Conn. 399; Converse v. Wales, 4 Allen 512; Waterman v. Whitney, 1 Kern. 157; Rambler v. Tryon, 7 S. & R., 90; Doe v. Hardy, 1 Moo. & Ry., 525; 1 Redf. on Wills, 542.


Page 414

Campbell, C. J.

The will of Isaac Pierce was admitted to probate December 2d, 1873. It was executed July 29, 1871, and he died July 12, 1873. On appeal by certain of his heirs at law, the will was held invalid. Error is brought against that judgment. The will gave a large portion of the property to his second wife and to her children, who were under age. His children by a former wife, from whom he was divorced, were much older. Two of his sons he made no provision for, saying they had been provided for before. To three others of his older children he devised land, and to a married daughter he made a money bequest. He married his second wife, the plaintiff in error Emeline E. Pierce, in 1855, sixteen years before the date of the will, and eighteen years before his death.

Page 415

The alleged objections to the will were incapacity generally, and from intoxication and undue influence. There was no evidence of general incapacity, the proof being uncontradicted that he was in his right mind. The only questions worthy of consideration arise out of the admission or exclusion of testimony, and rulings upon the other points, and certain complaints of the action of the court.

Before going into the general merits it may be proper to refer to two classes of objections to the rulings and course on the trial. It is claimed that certain rulings of the court...

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