Aikin v. Weckerly

• Court: Michigan Supreme Court
• Writing for the Court: Graves, J.
• Citation: Aikin v. Weckerly, 19 Mich. 482 (Mich. 1870)
• Decision Date: 05 January 1870
• Parties: Thomas Aikin, Executor, etc., of John Aikin, deceased, v. Elizabeth Weckerly

19 Mich. 482

Thomas Aikin, Executor, etc., of John Aikin, deceased, v. Elizabeth Weckerly

Supreme Court of Michigan

January 5, 1870

Heard October 26, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to St. Joseph Circuit.

This case was brought into the Circuit Court of the county of St. Joseph by appeal from the Probate Court, allowing the last will of John Aikin. An issue having been directed to try the validity of the will, Thomas Aikin, the executor and appellee, declared and "averred that heretofore, to wit, on the 9th day of July, A. D. 1866, at the township of Sturgis, in the said county of St. Joseph, John Aikin, then being of full age and sound mind, did then and there make his last will and testament in writing, and signed by the testator, and attested and subscribed in the presence of the testator by two or more competent witnesses. That the said John Aikin died at Sturgis, in said county, on the 14th day of July, 1866, and that said will was duly admitted to probate on the 12th day of September, 1866." To which Elizabeth Weckerly, the contestant and appellant, pleaded the general issue in the statutory form.

The issue between the parties was tried by a jury; and the plaintiff, to prove the issue on his part, offered as a witness David Page, who testified: "I knew John Aikin in his lifetime. [A paper purporting to be the last will and testament of John Aikin, being shown to him, he testified,--] the signature to this paper is the signature of John Aiken, not as he sometimes would have written it; I signed it as a witness at the request of Mr. Aikin; Mr. Aikin was lying on his bed in his bedroom when he signed it; I helped support him; we then went into the room adjoining and sat down at a centre table and signed it as witnesses; I could see the testator's face when I signed it; the bed stood in front of the bedroom door; the testator's head was at the south; I have caused a diagram to be made, showing the rooms and the position of the bed and the table. [The diagram was admitted in evidence and a copy of it is annexed to the record. The lines marked upon it, showing the range of the testator's vision through the open door, include the whole of the table at which the witnesses sat, the whole of one of the chairs, and all but a portion of the back of the other.] Mr. Flanders wrote the attestation clause; I signed it; Mr. Aikin had signed the will, and declared it to be his last will and testament; the testator requested Mr. Daniel Chamberlain and John Henry to sign as witnesses; this was the 9th day of July, 1866; testator died on the 14th day of July, 1866." On cross-examination he testified: "I had known the testator about thirty years; I went there at the request of testator; when I went there the testator was in bed; he was lying on his back; could turn his head from one side to the other; I saw Mr. Flanders getting papers of Mrs. Aikin, when the will was brought in and read; was there when the will was signed; Mr. Henry held Mr. Aikin up, and Mr. Flanders held his hand; Mr. Flanders then asked Mr. Aikin who he would have sign it as witnesses; he said myself, Daniel Chamberlain and John Henry; Mr. Aikin could see me at the time I signed it. I stood by Mr. Flanders when he was writing the attestation clause; I thought the testator was looking to see whet he was doing; I could see him; the room was about 16 by 16 feet; I do not know whether he, Mr. Aikin, did see the will and table or not.

Daniel Chamberlain testified: "I have known John Aikin for twenty years; I saw him sign this will; Mr. Flanders, Mr. Page, Mr. Henry and I were present; I signed after Mr. Flanders wrote the attestation clause; Mr. Aikin said it was his last will and testament; when I signed it I could see Mr. Aikin's bed and his face plainly; the testator was of sound mind and memory when he signed this will; I do not know that I could swear that Mr. Aikin saw the will; his mind was all right; I understood he had the palsy; he told me he was having his will made; Mr. Henry held him up, and Mr. Flanders had hold of his wrist, when he signed the will; I think this a good representation of Mr. Aikin under his condition; Mr. Aikin was lying on his back at the time his will was executed; I do not know that I saw him lying in any other position; Mr. Aikin said he wanted Deacon Page, John Henry and myself to sign the will as witnesses; Mr. Flanders asked Mr. Aikin who he was to have for witnesses." On cross-examination he testified: "The testator lying on his back could see the paper when it was signed by the witnesses; I stood by him and could see the paper on the table; he was looking at Mr. Flanders when he wrote the attestation clause; when Mr. Aikin signed the will Henry sat behind him; I signed as witness at testator's request; he was not stupid at the time; Flanders asked him who he would have for witnesses; he said Page, Henry and myself."

The will was now offered in evidence. It was attested in the usual form by "David Page, Sturgis, Mich.; Daniel Chamberlain, Sturgis, Mich.; and John Henry, Sturgis, Mich."

The plaintiff then called John Henry, who testified: "The signature of John Henry as a witness to the will is mine; Mr. Flanders and Mr. Page were in the same room; do not know whether Chamberlain was present or not; John Aikin was held up in the bed when the signature was made; Mr. Flanders put the pen in his hand, and I steadied his elbow; he had no use of his right hand; Mr. Flanders held the pen in his hand; I think he could not move his right foot, arm or fingers; I do not know who made the signature; I did not; I went to Mr. Aikin's on Sunday evening before the will was made, to take care of Mr. Aikin." On cross-examination he testified: "I went there on Tuesday and stayed until Saturday; he died the following week; I think the will was executed on Tuesday; I saw him on the 4th of July; he was a very sick man; he seemed to be troubled in mind; saw him Sunday; he had a stroke the night before; I spoke to him; he made me no answer, but looked at me; according to the date of the will, it shows execution on Monday; it was executed on Tuesday; I did not consider him sound in mind; I was present at the execution of the will; I was still taking care of him; Flanders came in with a paper in his hand; I did not hear the will read; Mr. Flanders said Mr. Aikin wanted to sign this paper; nothing said as to what the paper was; Mr. Flanders asked me to sign; I signed the paper as a witness in the sitting-room; Aikin was lying on his back; I could not see witnesses when they signed the will, nor could Aikin see them; I sat on the side of the bed when the signing was done; Aikin was not of sound mind when the will was executed, nor had he been from the time when I went there on the previous Sunday; when I signed the paper I sat on the east side of the table; Aikin kept making inquiries about going home; seemed deranged; I heard the will read by Mr. Flanders to testator before signing."

J. W. Flanders testified: "I am one of the counsel for the plaintiff; I was acquainted with John Aikin for fifteen or sixteen years before his death, and was frequently called upon to do legal business for him; on the day the will was dated Thomas Aikin came for me; I went to the residence of the testator with him and Mr. Page; Mr. Aikin told me he wanted me to draw his will, and gave me some verbal instructions; he told me how he wanted to divide his property, but said nothing about Elizabeth Weckerly; I drew up the will; when I read it to him he said: 'That is not as I wanted it. I have always said that Elizabeth Weckerly should not have any of my property. I will not sign it as it reads.' I then made the erasures and interlineations as he directed, and read it to him, and he said it was right; I then told him it was ready for his signature; he asked Mr. Page to sign it for him; I told him he had better sign it himself if he could; he answered, 'then you must assist me;' I steadied his hand while he wrote his name."

Other witnesses were examined who testified to the mental capacity and the physical condition of the testator; and to the position of the witnesses when attesting the will.

The evidence being closed, the counsel for the plaintiff requested the Court to charge the jury:

1. "That it was not necessary that the testator should write his entire name. If the signature to the will was made by another person guiding his hand with his consent, it would be sufficient.

2. "That if the testator knew that this was his last will and testament, and designed it as such, then that this would be a sufficient publication.

3. "That under the statute it is not necessary, to the valid execution of the will, that the witnesses should actually see the testator sign his name.

4. "That it was necessary, to the valid execution of this will, that it should be attested and subscribed in the presence of the testator by two or more competent witnesses, but to constitute this presence, it is not necessary that the testator shall be in the same room or apartment; that if the situation and circumstances of the parties were such that the testator in his actual position might have seen the act of attestation and subscribing, it was enough, although the attesting witnesses were not in the same room or apartment.

5. "If the jury find from the evidence that the testator John Aikin, signed the will in his bedroom, on his bed, and that the witnesses went through an open door into an adjoining room, and there...