8 Mich. 8 (Mich. 1860), Beaubien v. Cicotte
|Citation:||8 Mich. 8|
|Opinion Judge:||Christiancy J.|
|Party Name:||Julia Beaubien and others v. Mary A. Cicotte and others|
|Attorney:||J. M. Howard, for appellant, cited: S. T. Douglass, for respondents, cited:|
|Case Date:||January 04, 1860|
|Court:||Supreme Court of Michigan|
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.
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.
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...
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