In re Lautenschlager's Estate

• Decision Date: 25 April 1890
• Citation: 45 N.W. 147,80 Mich. 285
• Parties: In re LAUTENSCHLAGER'S ESTATE.
• Court: Michigan Supreme Court

45 N.W. 147

80 Mich. 285

In re LAUTENSCHLAGER'S ESTATE.

Supreme Court of Michigan

April 25, 1890

Error to circuit court, Monroe county.

Palmer & Palmer, for appellant.

Ira R. Grosvenor and Geo. M Landon, for appellees.

CAHILL J.

This case was commenced in the probate court of Monroe county on the petition of Samuel L. Lautenschlager and Elizabeth Ann Van Houten, asking for the probating, as the will of Charles Lautenschlager, deceased, of two instruments in writing in the form of deeds. In that court these instruments were admitted to probate. The contestant, John Lautenschlager, one of the sons and heirs at law of the testator, appealed to the circuit court, where, on a hearing before the circuit judge without a jury, the order of the probate court was affirmed. At the request of appellant the court filed a written finding, a bill of exception was settled, and the case is brought to this court on writ of error. Certain evidence offered by the proponents was received against objection, and upon the admission of this evidence various errors are assigned. It is also assigned as error that the circuit judge found as a conclusion of law that the instruments admitted to probate as a will were testamentary in character, and ought to be admitted to probate as the last will of Charles Lautenschlager, deceased and the principal question in the case is as to whether the circuit judge was right in that conclusion of law. The instruments were, in form, warranty deeds. They were executed December 22, 1885, before two witnesses, and acknowledged before John L. Near, a notary public, in the usual form. By one of them, the grantor, for the consideration of $2,000 named, "does by these presents grant, bargain, sell remise, alien, and confirm unto the party of the second part, [Elizabeth Ann Van Houten,] and to her heirs and assigns forever, [forty acres of land in Ash, Monroe county,] together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining, to have and to hold the said premises, as above described, with the appurtenances, unto the said party of the second part, to her heirs and assigns forever." Then follow the usual covenants of seisin, against incumbrances, and of warranty. A similar deed was made on the same day, and for the same consideration, to Samuel L. Lautenschlager, conveying the south 40 acres of the 80-acre tract, from which the description in the other deed was taken. The grantees named in these deeds were the son and daughter of the grantor. In the deed to Mrs. Van Houten, in the blank space after the description of the land, and before the words "together with all and singular," etc., was written, apparently in the same handwriting as the rest of the deed, these words: "Also one-half of all the personal property and money left at my death shall go to the above Elizabeth Ann." A similar provision was written in the same manner in the deed to Samuel L. Lautenschlager, giving to him one-half of all the personal property and money left at the death of the grantor. Across these clauses in the deeds, commencing at the right-hand upper corner, immediately below the description of land, and running diagonally across the blank space to the left lower hand corner, so as to end at the word "together," was drawn a line in ink. It was claimed by the contestant that the diagonal line indicated a purpose on the part of the grantor to erase and strike out of the deeds the clauses relating to personal property, whereas it was claimed by the proponents that these clauses were intended to be and should be read as a part of the instruments. As to which of these positions was correct must depend upon what the evidence in the court below showed as to when, and the circumstances under which, the clauses in question were written in the instruments,-whether before or after the diagonal line was drawn.

It was competent, of course, to prove by the witnesses to the execution of the instruments, or by any other competent testimony, these circumstances. We do not know just what evidence was offered to this point, as the bill does not purport to set out all the evidence. The finding of the circuit judge upon this point is not as explicit as it might have been made, but we think his fifth finding of fact was intended to cover this point. It is as follows: "(5) I find, also, as a matter of fact, that the decedent, when he made these instruments, intended that they should operate only at or after his death; that he intended that no part of his estate and interest, either in his personal property or in his real estate, should pass by virtue of these papers until his death, and that said property should then pass to the parties named; that he retained these papers in his custody, and under his control, without attempting a delivery, and retained them with full power of revocation until his death." Accepting this as a finding of the circuit judge that these clauses relating to personal property were and should be read as a part of the instruments, it remains to be seen whether the testimony which may have influenced the finding was legal and competent. On the trial in ...