Ferris v. Neville

• Decision Date: 10 July 1901
• Court: Michigan Supreme Court
• Parties: FERRIS v. NEVILLE.

86 N.W. 960

127 Mich. 444

FERRIS v. NEVILLE.

Supreme Court of Michigan

July 10, 1901

Appeal from circuit court, Bay county; A. C. Maxwell, Judge.

Proceeding by Rubie Ferris, proponent, against Albert D. Neville contestant, for the probate of the will of Jacob E. Embody. From a judgment for proponent, contestant appeals. Affirmed.

Porter & Haffey (McDonnell & Duffy, of counsel) for appellant.

T. E Webster (James Van Kleeck, of counsel), for appellee.

LONG J.

This is an appeal from an order of the probate court of Bay county admitting to probate a certain writing which is claimed to be the last will and testament of Jacob E. Embody, deceased, who died May 8, 1898. The paper reads as follows:

'State of Michigan, County of Bay--ss.: To Whom It may Concern: This is good to Miss Rubie Ferris for eight hundred dollars, as payment for care and attendance rendered by her to me in my last sickness. This eight hundred dollars is to be collected out of my estate after my death: providing, however, I die a bachelor.

'Jacob E. his X mark. Embody. [L. S.]

'Signed and sealed in presence of

'James Petterson.

'Edwin U. Hover.

'Dated at Lengsville, Bay county, Michigan, this 19th day of February, A. D. 1898.'

There is no question but that the deceased died a bachelor.

The cause was tried in the circuit court before a jury on the appeal, and judgment entered on verdict finding the instrument above set forth to be the last will and testament of Jacob E. Embody, deceased. The administrator of the estate has appealed. His counsel says in his brief that but two questions are raised, to wit: '(1) Does this paper constitute a will, even if properly executed and witnessed? (2) Did the court err in the admission and exclusion of testimony offered showing that the will was properly executed and witnessed according to the statute, and was that question of fact properly submitted to the jury?'

The proponent of the will called James Petterson as a witness. He testified that he came to the house of one Mr. Ferris, at Lengsville, on February 19, 1898; that he saw the deceased, Jacob E. Embody, upstairs in the house, and talked with him awhile, when deceased tapped on the window and called Edwin Hover, the other witness to the will, who came up; that the paper here claimed to be the will of Mr. Embody was then signed in his presence by Embody, and that he and Hover signed as witnesses to it at Mr. Embody's request; that the witnesses both signed at the request of Embody, and in his presence and in the presence of each other; that Hover wrote the words, 'Dated at Lengsville, Bay county, Michigan, this 19th day of February, 1898,' at the request of Mr. Embody; that Embody then requested Hover to take the paper and keep it until he (testator) died or got better, and if he died it was to be given to Mr. Ferris, and if he lived it was to be returned to deceased. Edwin U. Hover, the other witness to the paper, was called, and testified that he had known Mr. Embody, the testator, about a year; that it was his signature to the will; and that the date looked like his handwriting, but that he was not positive it was his handwriting. He further testified that he signed the paper at his home, near Unionville, about a year after it was dated (that is, about the 6th or 7th of February, 1899); that Mr. Ferris brought the paper to him and asked him to sign it; that Ferris told him that he wrote the body of it, but that Embody died so suddenly they did not get it quite finished, and that he (Ferris) knew it was all right, and he (witness) supposed it was all right, and signed it; that the other witness (Petterson) was not there, and Embody was not there. On his further examination the witness testified that, if he testified on the hearing in the probate court that he signed the paper in the presence of Petterson and at the request of Embody, it was false. He then stated: 'I lied in probate court because I was under the influence of liquor. * * * I was somewhat under the influence of liquor when I signed this.' The proponent introduced testimony tending to show that, while Mr. Embody was still living, Mr. Hover, the above witness, had this paper in his possession; that he showed it to one Otto Bruce, and at Embody's request read it over to Bruce; and that he showed it to Mr. Ferris' son Fred, and let him read it, and said he was going to give it to Mr. Ferris. The judge of probate of Bay county was called as a witness, and testified that Hover was called as a witness on the allowance of the will, and stated that 'he was passing the house where the deceased was at that time, and that the deceased beckoned to him to come up; that he went into the upper room of the house, and there were parties present (that is, the two subscribing witnesses and the deceased); that the deceased presented him the paper and asked him to witness it; that the name of the testator had been signed to the will; and that he then and there signed it at the request of the deceased. Other testimony was also given of like character. The witness Hover was recalled, and gave testimony tending to show that he never showed the paper to Fred Ferris or Otto Bruce.

Upon this and other testimony introduced in the case, the court charged the jury: 'Now, I charge you explicitly that unless this will was signed at the time that Petterson says he signed it, in the presence of the testator and in the presence of each other, the will is void, it never took effect, it never became a will; and if the testimony of the young man that it was carried down to Tuscola county long after its execution---- If what the witness said was true, the will was never completed, because it must be completed during the lifetime of the testator.

Now that brings us to the second question. If the will was signed in the presence of these two witnesses and in the presence of the testator, and at his request, the will is valid and effectual. There is a question of law as to whether the instrument is a will or not, and it is a close question. My first impression was the same as my brother McDonnell's. I thought it was a mere promise or agreement to pay. A subsequent partial examination somewhat changed my views, and I charge you, as a matter of law, that it is a will; that is, if it is proved to be properly executed. If it were a claim against the estate, it would come in for its share of the money with the other creditors, and might consume all the estate, and might be of value to the amount of the whole face of it unless the debts exceed the whole value of...