Brown v. Bell

• Decision Date: 29 September 1885
• Citation: 58 Mich. 58,24 N.W. 824
• Court: Michigan Supreme Court
• Parties: BROWN v. BELL.

24 N.W. 824

58 Mich. 58

BROWN v. BELL.

Supreme Court of Michigan

September 29, 1885

Error to Wayne.

Walker & Walker, for appellant.

SHERWOOD, J.

On the fifth of April, 1857, Thomas Brown, of Greenfield, in the county of Wayne, made his last will, by the provisions of which he gave to his wife all his estate, both real and personal, for and during her life, with remainder after her death to his son Thomas S. Brown, the proponent in this case to whom he gave immediate possession of all the property. The testator died on the ninth day of April, 1857, living but four days after the making of the will. He had been sick about eight months previous to his death, confined to his house during winter and to his bed for about three weeks before his death, and died of consumption, aged about 60 years. At this time his property consisted of a farm of 40 acres, with some personal property; and his household, of his wife, his son, the proponent, and his wife, and a grandchild, being a child of a deceased daughter. A married daughter, Mrs. Fulton, lived in the immediate vicinity. These, with two other children of his deceased daughter, constituted his immediate circle of relatives. James Carroll, a young man 16 years of age, also lived at the house and assisted in carrying on the farming. A few days before the will was made, a physician, an old acquaintance of the family, had been called, and it was ascertained, and the family understood, that there was no help for the testator and his death was but a question of a few days. Two daughters of Mrs. Fulton staid at his house that night to assist the family in taking care of the deceased. That night the deceased made the will offered for probate, and the two daughters and young Carroll were called into the testator's room and signed the will as witnesses thereto. The will was draughted at the request of the testator by his son, the proponent, who with one of the granddaughters, one of the Fulton girls, now Mrs. Blackman are the only persons surviving of all who were present at the execution of the will. After the will was made, signed, and witnessed as above stated, it was handed to the widow of the testator, who, as appears, kept the same until she died in the spring of 1882. Soon thereafter proponent took the will to the probate office, for the purpose of having it probated, in the county of Wayne. The probate was contested by a granddaughter, Eliza Bell, on the grounds that the testator was in such poor health and so far enfeebled both in mind and body as to be incapable of making the will offered for probate. The probate court denied the application. The proponent thereupon appealed to the circuit, where on a trial before a jury, the will was sustained, and contestant brings the case here on writ of error.

Proponent, contestant, and Mrs. Blackman were all sworn in the case, and the principal question in this court arises on the right of proponent to testify as to facts equally within the knowledge of the testator in his life-time. It was an important question, inasmuch as the only subscribing witness surviving at the time of the trial was pecuniarily interested in defeating the will. The counsel for proponent, when he had proponent upon the stand, proposed to prove by him that the testator made an agreement with him several years before his death by which he (proponent) was to have all the property, and he was to take care of his parents as long as they lived, and the will, so far as it related to proponent, was only in accordance with the testator's agreement and often expressed wishes, and that proponent had fulfilled the agreement upon his part.

The statute under which this testimony is claimed to be incompetent reads as follows: "That when a suit or proceeding is prosecuted or defended by the heirs, assigns devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify as to matter which, if true, must be equally within the knowledge of such deceased person." We do not think the statute quoted applies to this case. The contest is not between the estate, or the representative of the estate, and the proponent. The statute applies only when the estate is in some way one of the parties, and the heirs, assigns, devisees, or legatees are the others. The interest of the heirs in an intestate estate is the amount thereof after the payment of the debts of the deceased. The representative of a...