In re Lambie's Estate

• Decision Date: 02 October 1893
• Parties: In re LAMBIE'S ESTATE. v. McMILLAN. THOMAS et al.
• Court: Michigan Supreme Court

56 N.W. 223

97 Mich. 49

In re LAMBIE'S ESTATE.

THOMAS et al. v. McMILLAN.

Supreme Court of Michigan

October 2, 1893

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Proceeding to probate the will of Anne Lambie, deceased, in which Neil McMillan appeared and contested the probate on the ground that testatrix revoked the will offered, by a subsequent will, in which he was made the sole devisee. From a judgment of the circuit court reversing an order of the probate court admitting such will to probate, the estate of Anne Lambie and John H. Thomas and Charles H. Cameron, proponents, appeal. Reversed.

Charles C. Stewart, for appellants.

Wm. J Gray, (C. M. Swift, of counsel,) for appellee.

HOOKER C.J.

Francis and Anne Lambie were husband and wife, residing in Detroit. Neil McMillan was a nephew of Anne Lambie, and resided with these parties from childhood. In September, 1864, Anne Lambie executed a will giving all of her property to her husband Francis Lambie, if he should survive her. Anne Lambie died July 3, 1886. Francis Lambie died on March 3 1891, having taken no steps to probate this will, though it had been continuously in his possession from the time of Anne's death. During this period he had possession of her property, which he used as though it were his own. Shortly before his death, Francis went to Windsor, Ont., where he lived with his brother James. On March 14, 1891, a will purporting to have been executed by Francis Lambie on Feb. 9 1891, was filed for probate in Wayne county, Mich. This will named Charles H. Cameron and John H. Thomas as executors, and gave to James Lambie all of testator's property. It was admitted to probate, and the parties named were appointed executors, and accepted the trust. Subsequently, the will of Anne Lambie was produced, and admitted to probate by said court. Upon appeal of Neil McMillan, this order was reversed in the circuit court, and the cause is now brought here by John H. Thomas and Charles Cameron executors of the last will and testament of Francis Lambie, deceased, proponents and appellants, into whose hands James Lambie put this will.

Upon this will of Anne Lambie depends the title of Francis Lambie to the property which the will of Francis Lambie gives to James. The contest of Neil McMillan is based upon an alleged revocation of Anne Lambie's will of 1864 by a will which it is claimed that she made later, whereby she gave her property to Neil McMillan. To establish the revoking will, which was not produced, contestant gave evidence tending to show that the papers of Francis Lambie came to the hands of James Lambie, Cameron, Thomas, and possibly others, who are alleged to have destroyed or suppressed such will. Upon the other hand, proponents contend that no proper proof was offered from which the existence of such will can be said to have been established. The only testimony offered upon such point was: (1) Testimony of witnesses to whom Anne Lambie had stated that she had willed her property to Neil McMillan after Francis should be done with it. (2) Statements of Francis Lambie to the same effect, made to Neil McMillan and others. (3) Testimony of Neil McMillan that Francis had shown to him a writing, stating that it was Anne Lambie's will, giving him (Neil) the property when he (Francis) should be done with it, and that he put the will in a tin box, from which he had taken it, and in which he kept his papers, which tin box was afterwards traced to the possession of proponents, and which contained the will of 1864. (4) Testimony tending to raise the presumption that James Lambie and the other parties concealed such revoking will, in the nature of evidence that they endeavored to conceal his papers, and acted in a suspicious manner, only consistent with guilt. It is contended that the statements of Anne Lambie were not admissible for any purpose; also, that the statements of Anne Lambie were not competent to show that Anne had made such a will, being hearsay; also, that the testimony of Neil McMillan as to statements and transactions made by or participated in by Anne or Francis was inadmissible under the statute excluding testimony of parties as to the transactions equally within the knowledge of deceased. The statements of Anne Lambie served the double purpose of showing the existence of a will, and its contents, and the same may be said of the statements of Francis. In the absence of these statements of one or both, there would have been no proof that Anne ever made any will except that of 1864. It being conceded that the will of 1864 was genuine, it follows that it must be the last will of Anne Lambie, unless some evidence was produced that might legally tend to show that a later one was made. Contestant's brief asserts that the existence of such will is proved: (1) By evidence of Duncan Stewart that Mr. and Mrs. Lambie treated contestant as an adopted son, which was a matter of common knowledge; that Mrs. Lambie had told him, in Mr. Lambie's presence, that she and Mr. Lambie had made a will, the longest liver was to have the property, and that at their death it was to go to Neil. (2) By similar evidence from Dr. A. B. Jenner that both Anne and Francis Lambie had made similar statements, that her brothers George and Charles McMillan knew all about it, and that the will was in their safe; that, subsequent to that talk, Mrs. Lambie was physically unable to have gone to the store of her brothers to get the will; and that both of such brothers are dead. (3) By testimony of Mrs. Woodworth, with whom Francis Lambie boarded after his wife's death, that he had made similar statements to her. (4) By testimony of Neil McMillan, the contestant, that he was an adopted son of the parties; that they both always told him that he would inherit their property; that it was well understood in the family that Mrs. Lambie owned the Washington street property; that Mrs. Lambie, in 1886, at Minneapolis, told him she had made a will leaving him the property, and that it was in the tin box in G. & R. McMillan's store; that in December, 1886, after his aunt's death, witness was at the Russel House, and Francis Lambie brought the tin box there from said store to give witness some of his own papers; that Francis opened the box, and went through the papers, holding them up and calling them out; that he finally held up-opened out-Anne Lambie's will, saying, "This is your aunt's will, giving you the property after I am gone." The will was put back in the box. It was a half sheet. He did not read the will, and could not state the date, nor the witnesses to it, nor that it was a will, in fact. (5) Rob. McMillan testified that Francis Lambie had kept in his store a tin box, which he took away after the death of George McMillan, in 1889. (6) The 1864 will was in Francis' possession, and was found after his death in the tin box. The fact that it was not offered for probate by him, contestant claims, raises a presumption that he knew of the existence of a revoking will.

The will of 1864 exists. Its validity is admitted, subject to the claim of its revocation. Presumptively, then, it is the last will of Anne Lambie. Before probate can be denied, it must be shown that a subsequent will was made. Can the existence of this will be proved by the statements of Anne Lambie? Upon the question of the admission of the declarations of the testator for the purpose of establishing the fact that she made a given will, the cases are in conflict. In our own state, while declarations of a decedent have in some instances been held admissible, so far as observed, the court has carefully excluded the implication that they were receivable for such purpose. As we do not find it necessary to decide the question, we express no opinion upon it. We think the statements of Anne Lambie were admissible as to the contents of the will, after proof tending to show its existence was adduced.

Can the declarations of Francis Lambie be proved for such purpose? Here, too, some conflict is found in the books; some holding that a devisee's admission can be proved against the will in all cases, and others maintaining that it is permissible only where he alone is interested in the probate of the will upon the ground that another should not be prejudiced by such statements, which as to him would be hearsay. But all agree that in the former instance such proof may be received. In this case Francis Lambie alone profited by the will which his devisees seek to probate. He was their privy, and admissions by him of the evidence of a later and revoking will are clearly admissible, and are alone sufficient, if believed, to establish the fact, in a case where a jury can find that the will...