Cooch's Estate, In re

• Citation: 116 N.W.2d 740,367 Mich. 445
• Decision Date: 07 September 1962
• Docket Number: A,No. 14,14
• Parties: In the Matter of the ESTATE of Bertha COOCH, Deceased. Hilda GREITZER, Plaintiff and Appellee, v. Leroy RING, Ruth Beach, Oliver Frank and Norine Miller, Defendants and Appellants. pril Term.
• Court: Michigan Supreme Court

Page 740

116 N.W.2d 740

367 Mich. 445

In the Matter of the ESTATE of Bertha COOCH, Deceased.

Hilda GREITZER, Plaintiff and Appellee, v. Leroy RING, Ruth Beach, Oliver Frank and Norine Miller,

Defendants and Appellants.

No. 14, April Term.

Supreme Court of Michigan.

Sept. 7, 1962.

Leo W. Hoffman and Frederick D. McDonald, Allegan, for contestants and appellants.

Dilley & Dilley, Grand Rapids, for proponent and appellee.

Before the Entire Bench.

KELLY, Justice.

Bertha Cooch, 83 years of age, a resident of the village of Wayland, Allegan county, died at her home November 19, 1959. She left surviving her 13 nieces and nephews, and made bequests to 4 of them in her will but made no provision for the disposition of the residue of her estate.

Plaintiff (Hilda Greitzer), a niece, was named executrix. Upon filing the will for probate, plaintiff's brother, defendant LeRoy Ring, and 3 other nieces and nephews of deceased, filed objections to the admission of the will, claiming undue influence, lack of mental capacity, and that the purported will had been revoked.

The probate judge disallowed the will on the grounds of insufficient proof of show that it was the last will and testament of deceased and that it had been procured by undue influence. Plaintiff appealed to the circuit court and the trial resulted in a directed verdict in favor of the will. From this determination, defendants appeal.

We shall first consider if the document offered for probate was the last will and testament of deceased. It is defendants' claim that the document offered (Exhibit 1) is put 1 page of 2-page will and that deceased had torn up the other page, thereby revoking the will.

The confusion on this point stems from the fact that the witnesses to the will, aged neighbors of deceased, had witnessed a prior will of deceased. They (Edward Blaine and Bertha Blaine) testified that late in 1958 or early in 1959, the deceased came to their house and asked them to sign as witnesses to her will. This will had 2 pages, both of which were signed by them. At a later date, 4 or 5 months before deceased's death in November, 1959, plaintiff's husband, John Greitzer, came to the Blaine home and asked them to come over to the deceased's house to witness her will. They went over, and deceased, in their presence, tore up a piece of paper, which deceased stated was a part of her will, and then she asked them to sign her new one, which had 1 page. They did not see the contents of the wills and at first stated that they would not know if the will offered for probate was in fact the second page of the 2-page first will or whether it was the 1-page second will.

The document offered for probate was undated, but otherwise appears to be complete in and of itself. There is no reference to any other page, or that it is a part of a will.

The claim that it is 1 page of a 2-page will is not supported by any evidence, but defendants seek to infer this from alleged declarations of the deceased to attorney Leo W. Hoffman and to defendant LeRoy Ring and his wife, Mildred Ring, that she had torn up her will.

Witnesses Edward and Bertha Blaine, having witnessed 2 wills for deceased and not having seen the contents of either, were at first confused on this point, but, after being shown a document (Exhibit 2) dated December 9, 1958 (which made certain testamentary dispositions and which was) signed by the deceased and witnessed by them, concluded that the undated document (the will offered for probate) would be the will signed at deceased's home some 4 or 5 months prior to her death.

We agree with the trial court's determination that the document offered for probate was the legally executed last will and testament of deceased.

We next consider if this will was revoked. The statute (C.L.1948, § 702.9 [Stat.Ann.1943 Rev. § 27.3178(79)]) relative to revocation of a will, states:

'No will nor any part thereof shall be revoked, unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this chapter; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.'

The will obviously was not burned, torn, canceled or obliterated, nor has another will or codicil executed by the deceased revoking this will been brought forth, although at a guardianship proceeding several months prior to her death, it appears deceased did have a discussion with attorney Leo W. Hoffman relative to the drawing up of a new will and the probate judge advised her that she should have a new one drawn. Was, then, testatrix's declarations to various witnesses that she had torn up part of her will sufficient to revoke the will?

No case is cited by either party similar to the situation presented here. In 57 Am.Jur., Wills, p. 322, § 460, it is stated that there can be no revocation by parol declarations of the testator without an overt act.

There is no revocation even if testator is prevented from doing so by fraud. Minnesota has a statute similar to ours, and in Graham v. Burch, 47 Minn. 171, 49 N.W. 697, the testator placed his will in a stove with kindling not yet ignited, intending the will to be destroyed when the fire should be lighted. A person present, with the design of thwarting the purpose of the testator (and during his absence), took the will out of the envelope and secreted it, so it was thereby saved from destruction without the knowledge and consent of the testator. It was held that the will, in the absence of an overt act, had not been revoked even though the act was prevented by fraud.

Illinois also has a statute similar to ours, and in Bohleber v. Rebstock, 255 Ill. 53, 99 N.E. 75; 41 L.R.A., N.S., 105, the deceased wanted to change his will but was too feeble to leave his home. Certain beneficiaries refused to call a lawyer and threatened violence to anyone who would bring a lawyer or assist deceased in changing his will. The Illinois court in rejecting a bill in equity to have the will set aside also held that in the absence of some overt act as required by the statute there could be no revocation even under these circumstances, stating (255 Ill. pp. 56, 57, 99 N.E. p. 76):

'Prior to the enactment of any legislation upon this subject in England, the question whether an intention to revoke a will was sufficient to constitute a revocation was considered by the courts, and the courts held that such an intention was sufficient to effect a revocation. These decisions led to such uncertainty in the stability of wills and to such suspicion that wills were being defeated by prejury that an act was passed defining what was necessary to the revocation of a will by the testator in his lifetime, and, as above stated, the various states of this country have enacted similar legislation. It will be seen our statute provides that no will or codicil shall be revoked otherwise than by burning, canceling, tearing or obliterating the same by the testator himself, or by someone in his presence and by his direction and consent, or by some other will or codicil duly executed. Under similar statutes the courts of this county have practically uniformly held, and text-book writers also lay down the rule, that the mere intention to revoke a will, unaccompanied by any act of the testator to execute that intention, will not be sufficient to revoke the will, even though the execution of the intention was frustrated by the fraud and improper conduct of other persons. Slight acts of tearing, burning, or canceling, with the purpose and intention of revoking a will, may be sufficient for that purpose, but the intention to revoke, unaccompanied by any of the acts of destruction required by the statute is insufficient.'

See, also, Trice v. Shipton, 113 Ky. 102, 67 S.W. 377.

Revocation could be accomplished only by the overt acts required by statute, or by another will or codicil. Deceased failed to do either, and revocation based solely upon her declaration that she had torn up her will cannot be allowed. To hold otherwise would open the door to the fraudulent practices which the statute is designed to avoid.

Defendants also seek to have the will set aside on the claim that it was obtained through undue influence....