In re Cosgrove's Estate

• Decision Date: 05 September 1939
• Docket Number: No. 27.,27.
• Citation: 287 N.W. 456,290 Mich. 258
• Parties: In re COSGROVE'S ESTATE.
• Court: Michigan Supreme Court

290 Mich. 258

287 N.W. 456

In re COSGROVE'S ESTATE.

No. 27.

Supreme Court of Michigan.

Sept. 5, 1939.

Proceeding in the matter of the estate of Augustus Cosgrove, deceased. From a judgment admitting a document for probate as the last will and testament of the deceased, the heirs at law appeal.

Affirmed.

Appeal from Circuit Court, Ottawa County; Fred T. Miles, judge.

Argued before the Entire Bench.

Leo C. Lillie and Harvey L. Scholten, both of Grand Haven, for appellants.

Louis H. Osterhous, of Grand Haven, for appellees.

CHANDLER, Justice.

On October 6, 1937, Augustus M. Cosgrove called at the office of Willamena Young, manager of the Michigan Title Company abstract office in the city of Grand Haven. He carried with him a six page document written by himself in pencil. Except for signature, attestation clause and subscription of witnesses, the document was in form a will by the terms of which the testator's real and personal property were to be distributed.

Mr. Cosgrove said: ‘Miss Young will you copy this will for me?’, and she replied, ‘Yes, I will’. He then gave her his tax receipts and requested that she check the property descriptions in the will against the descriptions in the abstract office records. When she indicated that she was too busy to typewrite the will that day, he told her to do it at her own time and added that he was going to Ohio. Miss Young asked, ‘Would you like to sign this will in case anything should happen?’ Mr. Cosgrove answered, ‘Yes, I would Miss Young, and that is a good suggestion.’ Thereupon, he signed the instrument before Miss Young and another woman, and the latter persons subscribed their names as witnesses thereto. In Mr. Cosgrove's presence, Miss Young filled in the date in ink and wrote the attestation clause, whereupon Mr. Cosgrove left the office.

Subsequently, Miss Young made a typewritten copy of the will. After Mr. Cosgrove returned from Ohio, he informed her that he would come to her office and sign the typewritten copy of the will, but before having done so, he became ill and died on November 15, 1938.

The pencil draft of the will was admitted to probate in the probate court against the objections of the heirs at law. The heirs at law now appeal from the decision of the circuit court, which also admitted the document for probate as the last will and testament of Augustus M. Cosgrove, deceased.

The decisive question is whether Mr. Cosgrove intended at the time he executed the document in question for it to operate as a testamentary disposition of his property.

It is the theory of the contestants that the document which the deceased executed was not intended by him to be his will, but was merely to serve as a memorandum for the guidance of Miss Young in typing the will in final form. Although this may have been his original intention, from the record it seems clear that at the time the deceased executed the instrument, he did so with testamentary intent.

The English rule is stated in Jarman on Wills, 7th Ed., Vol. I, 39, as follows: ‘A paper merely expressing an intention to instruct a solicitor to prepare a will making a particular disposition of property, will not be admitted to probate in the absence of evidence of intention that such paper should have a testamentary operation. But instruments headed ‘Plan of a will’, or ‘Heads of a will’, or ‘Sketch of my will’, or ‘Memorandum of my intended will’, or ‘Notes of an intended settlement’, have been held to operate as valid testamentary dispositions, if duly executed.'

In Schouler on Wills, Executors and Administrators, 6th Ed., Vol I, Sec. 346, the American view is thus expressed: ‘Notwithstanding English precedents, we may regard it as the settled doctrine of most American states, that a will must be perfect in the testamentary sense, and designed as something final in shape, and not preliminary, or it cannot take effect as a will; and this, in conformity to the American policy, which prescribes certain formalities of execution as indispensable, including a due attestation by witnesses. Mere drafts or minutes of wills are therefore inadmissible to probate, and a mere unexecuted intention to leave by will is of no effect. So a paper drawn up as a memorandum of instructions and then duly executed and attested as a will, would of course operate in its final character because of a corresponding change of purpose which the testator had properly carried out, and instructions for a will which have been duly executed as final may be probated.’

In Merrill v. Boal, 47 R.I. 274, 132 A. 721, 725, 45 A.L.R. 830, it was said: ‘When a person of testamentary capacity, acting of his own free will, intentionally executes, with the formalities required by statute, a writing which in form and substance is testamentary, animus testandi is usually presumed (see Turner v. Scott and Barnewall v. Murrell [108 Ala. 366, 18 So. 831],supra), but oral evidence as to the circumstances surrounding the execution of the instrument is admissible for the purpose of showing either an absence or presence of testamentary intent.’

The record shows that the deceased handed Miss Young the paper in question with a request that she check the real estate descriptions therein and then typewrite a copy of the same for his signature. This document was entitled ‘Will’ and began...