Bradford v. Vinton

• Decision Date: 20 January 1886
• Citation: 59 Mich. 139,26 N.W. 401
• Court: Michigan Supreme Court
• Parties: BRADFORD v. VINTON.

26 N.W. 401

59 Mich. 139

BRADFORD v. VINTON.

Supreme Court of Michigan

January 20, 1886

Error to Kent.

CHAMPLIN J.

The testatrix, Mattie V. Vinton, was the wife of Porter Vinton the contestant of her will, and at the time of her decease they had been married some 14 or 15 years. At the time of their marriage Porter Vinton was a widower of some 50 years of age, with several children, all residing on his farm near Kalamazoo. The testatrix was then about 18 years of age, and had no property, and never acquired any thereafter, except from the contestant. After the marriage, they resided on the farm some two years, and sold and removed to Alpine, Kent county, where they resided on a farm purchased by Mr. Vinton until about the year 1879, when he bought a house and lot in Sparta, in said county, and moved there, where he built a grist-mill. In the summer of 1882, he sold the mill, taking back a mortgage in the name of his wife for $3,491.23, she assigning to him $1,491.28, leaving just $2,000 of the entire amount to her. The house and lot in Sparta was also deeded to Mrs. Vinton. These transfers to Mrs. Vinton were made under an agreement between Vinton, his wife, and Walter, one of Vinton's sons, who had worked for and turned his wages into the family fund, for some years, whereby Walter was to have a deed of one-half the Alpine farm, and continue to live with and apply his wages for the benefit of the family. In consideration of the transfers above specified to Mrs Vinton, she agreed to make her will, wherein she was to give devise, and bequeath said property, at her death, to Porter Vinton during his life, and the remainder to Walter; and, in pursuance of said agreement, and the transfers to Mrs. Vinton of said property, she, on the sixth day of October, 1882, made and executed a will giving and devising all of her estate, real and personal, to her husband, Porter Vinton, to be used and enjoyed by him during the term of his natural life, and from and after his decease she gave the same to Walter Vinton, his heirs and assigns, forever. She appointed Porter Vinton executor of this will. Walter continued to live with the family, and give them the benefit of his earnings, except sufficient to supply himself with clothing. He was earning two dollars a day and upwards.

On the eighteenth day of August, 1883, the testatrix was taken sick with a severe attack of pneumonia, and gradually grew worse, and died on Friday, the twenty-fourth of August, at about 7 o'clock in the evening. On the Monday morning after she was taken ill, being the 20th, she sent for a neighbor, one Edwin Bradford, and desired to know if he was going to the city of Grand Rapids that week; if he was she wanted to send down by him. He told her that he did not know; that he might go down the latter part of the week. She sent for him again the next day, but he did not go to see her that day, and on Wednesday or Thursday she sent word to him again that she wanted to see him. At this interview she told him that she had made a will, and had left it with Mr. Fitz Gerald, and she wanted Mr. Bradford to go down and get that will, and told him she wanted to make a new will, and wanted him to go to Grand Rapids that morning. He told her if she wanted to make a new will it was not necessary that she should go down and take up that will; that the last will would stand any way, and, besides, he did not see how he could get away to go. She then requested him to go and get Mr. Rezin Maynard, an attorney residing in the village, to make her will immediately. Mr. Bradford spoke to Mr. Maynard, and they came back to the sick room, and Mrs. Vinton dictated how she wished to dispose of her property. Mr. Maynard then returned to his office and drew the will, and he, together with Mr. Bradford, returned to her room, when the will was read to her by Mr. Maynard, and she said it was all right, and signed there in the presence of Mr. Bradford and Mr. Maynard, and she requested them to sign their names as witnesses. The bed was in the north-west corner of the room, with the head to the north; in the north-east corner was a bureau, upon which the will was laid when the witnesses subscribed their names. During the time Mr. Maynard was subscribing his name as a witness, Mr. Bradford was fanning Mrs. Vinton, and from the testimony it was not entirely certain whether or not Mr. Bradford, in the act of fanning Mrs. Vinton, did not stand between her and Mr. Maynard when he was subscribing his name, so that she could not see him do it, had she looked; otherwise she could have seen him had she been inclined to look.

By the terms of this will she bequeathed to her mother $100 a year during her natural life, a velvet chair, and a willow rocking-chair; to her sister the house and furniture in the village of Sparta, except the furniture therein otherwise bequeathed; to her niece her piano, gold watch and chain, clothing, and jewelry; to John D. Miles $530, being the amount loaned to her by him. She directed $50 to be expended for a monument for herself. The balance of her estate she devised to her husband, Porter Vinton, for his use during the term of his natural life, and at his death to be divided between her mother and sister equally. She appointed Edwin Bradford and Rezin A. Maynard executors. This will was presented to the probate court of Kent county for probate, by the executors therein named, when Porter Vinton appeared, and contested the same. The court, after hearing, entered an order admitting the same to probate as the last will and testament of Mattie V. Vinton, deceased, and Porter Vinton appealed to the circuit court for the following reasons, viz.: First, that the said paper admitted to probate as the last will and testament of the said Mattie V. Vinton, deceased, is not the last will and testament of the said deceased; second, that the said Mattie V. Vinton, at the date of signing, sealing, and publication thereof, was not of sound and disposing mind and memory, and was incapable of making a valid will; third, that the making and execution of said paper was procured by undue influence, and the same is not the last will and testament of said deceased; fourth, that the said paper was not made nor executed as required by law; fifth, that the said paper was not witnessed nor executed as required by law.

The circuit judge charged the jury that there were three questions of fact for them to dermine: First, was the instrument executed with the formality required by the statute? Second, was Mrs. Vinton, at the time of its execution, of sound and disposing mind? Third, was any undue influence exercised over her, by means of which her free will was overcome, so that the will does not reflect in its provisions her real wishes?

Upon the first question he charges as follows: "First, then, was the will duly executed? There is no dispute that the instrument was signed by Mrs. Vinton. It is claimed by the contestants that the testimony fails to show that it was attested in the presence of the testator by Mr. Maynard. The statute requires that all wills shall be attested and subscribed by the subscribing witnesses in the presence of the testator. It is a sufficient compliance with this provision of the statute if the instrument be signed by the subscribing witnesses where the deceased might have seen the act of signing if she chose. It must appear from the evidence, however, that, at the time of the signing by each of the witnesses, she was in a position where she might, and so circumstanced that she could, if she chose, have seen each sign his name. If she could not have seen Mr. Maynard sign his name, either by the position of Mr. Bradford, or because of her physical inability to see him,--to turn her head so as to see him,--the attestation would not be valid. But if she could have seen him if desired, even if some change in her position was necessary to bring Mr. Maynard within the range of her vision, if she was able to make such movement, the attestation was regular; for all the law requires is that the testatrix shall be in a position which enabled her to see the signing if desired; and if she was in a position to see, or where she might have seen the signing, and either from indifference to the formality, or from other cause, allowed the signing to take place without observing it, this would not invalidate the act. If you find the will was legally witnessed and attested the next question is," etc.

The testimony upon which this charge was based, was given by the two subscribing witnesses to the will, who are the executors therein named, and is as follows: Rezin A. Maynard testified: "Then I asked her concerning the witnesses of the will,--read that clause to her,--and she requested Mr. Bradford and myself to sign as witnesses. She signed it in the bed. I held a book for her, I think. The will rested on a book, and she signed it. Mr. Bradford held her up,--supported her,--and she signed the will. Then I took the will to a bureau that stood at the head of the bed. There was a door, I think, between the bed and the bureau, and I signed it standing by the bureau, and gave Mr. Bradford the pen, and he signed it standing there. We were in her sight. She could have seen us. *** After the will was executed, I asked her in whose custody she wished to leave it. She said she thought perhaps Mr. Bradford better take it, as he had a large safe where he could keep it, and it would be safe, and I gave it to him, and he took it." On cross-examination he further testified: "When the will was executed, she was lying in bed. The bed was in the north-west corner of the room; her feet were towards the south. The bureau I spoke about stood in the northeast corner of the room; I think she was not bolstered...