Beaubien v. Cicotte
| Decision Date | 04 January 1860 |
| Citation | 8 Mich. 8 |
| Court | Michigan Supreme Court |
| Parties | Julia Beaubien and others v. Mary A. Cicotte and others |
Heard December 3, 1859
Case reserved from the Wayne circuit.
Joseph A. Moross and others, claiming under an instrument purporting to be the last will and testament of Antoine Beaubien presented the same to the probate court for the county of Wayne, for probate and allowance, but, on hearing, the same was disallowed. From the order of disallowance they appealed to the circuit court, and an issue being there directed to be made up, propounded in writing the averment that the instrument presented "was signed by the said Antoine Beaubien, on the day when it bears date, to wit, the 12th day of January, in the year eighteen hundred and fifty-eight, as and for his last will and testament, and was then and there attested and subscribed in his presence, by at least two competent witnesses, and that at the time of the execution thereof the said Antoine Beaubien was of full age."
The contestants demurred, assigning for cause that "there is no averment that at the time of the signing of the said instrument, as and for his last will and testament, the said Antoine Beaubien was of sound mind."
On the hearing upon this demurrer, the circuit judge reserved for the opinion of this court the question:
Is the burden upon the appellants and propounders of the will, in this case, to aver and prove that, at the time of the execution of said will, the said Antoine Beaubien was of sound mind.
J. M Howard, for appellant, cited:
2 Greenl. Ev., § 689; 1 Ibid., § 77; Note to Phelps v. Hartwell, 1 Mass. 71; Buckminster v Perry, 4 Mass. 593; Brooks v. Barrett, 7 Pick 94; Atty. - Genl. v. Pranther, 3 Bro. Ch., 441; Hix v. Whittemore, 4 Metc. 546; Stewart's Ex. v. Lispenard, 26 Wend. 255, 301, 303.
S. T. Douglass, for respondents, cited:
Barry v. Butlin, 1 Curteis 638; Saukey v. Lilley, Ibid., 397; Ibid., 350; Baker v. Batt, 2 Moore 317; Browning v. Budd, 6 Moore 430; Parke v. Ollatt, 2 Phill. 323; Harris v. Ingledew, 3 P. Wms., 93; Wallis v. Hodgeson, 2 Atk. 56; Crowninshield v. Crowninshields, 2 Gray 524; Baxter v. Abbott, 7 Gray 71; 32 Me. 441; 34 Me. 162; 6 Ga. 324; 10 Ibid. 324; 14 Ibid. 395; Comstock v. Hadlyme, 8 Conn. 254; 13 Ill. 15; Brydges v. King, 3 Eng. Ec. R., 109; Mynn v. Robinson, 4 Ibid. 72; Marsh v. Tyrrell, Ibid., 33, 51; Ingram v. Wyatt, 3 Ibid. 167; Berger v. Hill, 1 Bradf. 360; Weir v. Fitzgerald, 2 Ibid. 42; Ibid., 261; Mowry v. Silber, Ibid., 134; McGuire v. Keen, Ibid., 244; Comp. Laws, §§ 2825, 2828, 2829, 2832.
Christiancy J.
The only question properly reserved for our opinion, in this case, is that raised by the demurrer.
The averments on the part of the propounders of the will, for the purpose of forming an issue upon its validity, should, we think, include every thing necessary to constitute it a valid will under the statute, so that a verdict finding the truth of all those averments, without more, would bring the instrument within all the express requirements of the statute.
The law, in case of intestacy--that is, in the absence of a will which is valid under the statute--fixes the descent and distribution of the property of deceased persons. Under certain conditions which the statute has prescribed, and in no other event, it allows the owner to control the disposition of his property after his death, by means of a will. The power to make wills, the formalities with which they shall be executed, and their efficiency, depend upon the statute.
The only person recognized by the statute as competent to make a valid will, are persons "of full age and sound mind." Soundness of mind, then, in the testator, at the time of making the will, is one of the statute requisites to its validity.
But it is said, the law presumes this soundness of mind till the contrary be proved; that soundness of mind is also necessary to the validity of deeds, contracts, and other writings besides wills, and yet that it is never necessary, in pleading such deeds, contracts, and other writings, to aver soundness of mind in the parties executing them. This is certainly true in the case of deeds and all ordinary contracts and writings inter vivos, and yet soundness of mind is necessary to their validity. But in these cases the law only implies the necessity of the fact, without expressly requiring it; and where its necessity rests only upon implication, the presumption of sanity which the law raises without proof, is sufficient to satisfy the implication of its necessity, without averment.
But where the legislature have not been satisfied to leave the necessity of the existence of the fact to implication, but have thought it necessary to require its existence by express enactment, upon what principle can a pleading, which sets up a right under the statute, leave the same fact to implication which the legislature were unwilling to leave to the same implication? Where the statute has expressly required the existence of the fact, the pleader, we think, must expressly aver it.
We will not say here that there can be no presumption under our statute in favor of soundness of mind in case of a will. The case, as presented by the demurrer, does not call for a decision upon a question as broad as this. But it is manifest from the nature of things, and from common observation and experience, that this presumption is not so strong in the case of wills generally, without special reference to the facts of any particular case, as in the case of deeds and ordinary contracts. Instruments of the latter description are generally executed in the common course of business, while the parties are in full possession of their ordinary physical and mental powers. Wills, on the contrary, are much more frequently, if not in the majority of cases, executed when the testator is in extremis, when the physical powers, at least, are greatly impaired, and the mental faculties much more likely to be weakened or obscured.
We think the statute intended to recognize this obvious...
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