Rivard v. Rivard
Citation | 66 N.W. 681,109 Mich. 98 |
Court | Supreme Court of Michigan |
Decision Date | 31 March 1896 |
Parties | RIVARD ET AL. v. RIVARD ET AL. |
Error to circuit court, Wayne county; Robert E. Frazer, Judge.
Appeal by Charles Rivard and others, heirs at law, from an order of the probate court allowing the will of Ferdinand C. Rivard deceased. There was a verdict for contestants, and judgment setting aside the will, from which Paul Rivard and Ephraim Rivard, executors and proponents, bring error. Affirmed.
A hypothetical question to a medical expert, calling for his opinion, upon the facts assumed, as to the mental capacity of a testator, is not objectionable because it includes the question of his power to comprehend "his moral obligations to others, and the objects of his bounty," where, from the context, it would be readily understood that it referred to the moral obligation of the testator to his children.
Ferdinand C. Rivard died testate in 1892, at the age of 82 years. He owned a farm of 400 acres, situated about six miles from the city of Detroit, on the road to Grosse Point. There he was born and always lived. A part of the farm he inherited. The rest he obtained by purchase. He was a shrewd, careful, economical man. He amassed considerable property, and at his death owned some real estate in the city of Detroit, and two farms in Macomb county, besides considerable personal property. His wife died in 1874. Shortly after her death he made his will dated September 12 1874. He afterwards executed 12 codicils thereto, dated respectively, as follows: (1) July 6, 1875; (2) August 28 1880; (3) September 11, 1880; (4) same date; (5) August 25, 1882; (6) May 9, 1883; (7) February 7, 1885; (8) March 16, 1886; (9) April 2, 1886; (10) May 23, 1888; (11) May 28, 1888; (12) May 26, 1890. He had seven children,-three sons and four daughters,-all of whom were living when the original will was made. By this will he made an equitable division of his property among his children. By his various codicils he took away the larger share given by the first will to five of his children, and left most of it to his two sons Paul and Ephraim. The will is attacked upon the ground of incompetency and undue influence. These questions were submitted to a jury, who decided in favor of the contestants.
His daughter Archange was married to a Mr. Connon in 1870. This marriage was unfortunate, Mr. Connon being a spendthrift and a man of bad character. She had eight children, and in 1881 she left him, and, at her father's request, took them all, and went to his house to live. His daughter Pauline in 1870 married a Mr. Lodewyck. She died May 19, 1880, leaving five children. These children went to their grandfather's to live after her death. About four months after her death, Rose married Mr. Lodewyck. Mr. Rivard naturally was opposed to the marriage in so short a time after the death of Pauline. He refused his assent, whereupon Rose and Lodewyck went away, and were married without his knowledge. Julia, at 19 years of age, left home, lived some three years with Mr. and Mrs. Lodewyck, and then entered a convent. Charles, who by the first will was made equal with Paul and Ephraim, was by one of the codicils bequeathed only a life estate.
Errors are assigned upon the refusal to give certain instructions requested by the proponents, in giving certain instructions requested by the contestants, in giving certain oral instructions, and in the exclusion and admission of testimony.
The court, at the request of proponents, after stating the statute of wills, and the power of every person to devise his property, instructed them as follows: To this request the court added, "and the testator is, at the time of its execution, of sound mind." To this the court added, "provided he is at the time of sound mind." To this the court added, "if he was of sound mind at the time he executed it." This request is marked, "Given as modified;" but there is nothing to show how modified, unless it be by the oral charge of the court. (15) The court, at proponents' request, also instructed the jury to find, in answer to special requests, that the testator, when the will was executed, did know the extent and value of his property, and also knew his children. (16) John Ward, an attorney of long standing and experience in the city of Detroit, was the attorney for Mr. Rivard for many years; drew the will and the codicils. Contestants' counsel argued to the jury that Mr. Rivard was unduly influenced by Mr. Ward. The court, at proponents' request, instructed the jury that there was no evidence to show any undue influence on the part of Mr. Ward to bring about either the will, or any codicil to it, but did not, as requested, instruct them to disregard the arguments of counsel for the contestants on this point.
The court gave the following requests on the part of the contestants: ...
To continue reading
Request your trial-
Rivard v. Rivard
...109 Mich. 9866 N.W. 681RIVARD ET AL.v.RIVARD ET AL.Supreme Court of Michigan.March 31, Error to circuit court, Wayne county; Robert E. Frazer, Judge. Appeal by Charles Rivard and others, heirs at law, from an order of the probate court allowing the will of Ferdinand C. Rivard, deceased. The......