In re Merritt's Estate

• Decision Date: 05 October 1938
• Docket Number: No. 60.,60.
• Citation: 286 Mich. 83,281 N.W. 546
• Parties: In re MERRITT'S ESTATE.
• Court: Michigan Supreme Court

286 Mich. 83

281 N.W. 546

In re MERRITT'S ESTATE.

No. 60.

Supreme Court of Michigan.

Oct. 5, 1938.

Proceeding in the matter of the estate of Olive Merritt, deceased, wherein the will of Olive Merritt, deceased, was offered for probate which was opposed by certain contestants. From a judgment allowing the probate, the contestants appeal.

Affirmed.

Appeal from Circuit Court, Kent County; Leonard D. Verdier, judge.

Argued before the Entire Bench, except McALLISTER, J.McAllister & McAllister and Gillard & Gillard, all of Grand Rapids, for appellants.

Dale Souter, of Grand Rapids, and Monness & Monness, of New York City, for appellee.

WIEST, Chief Justice.

As stated by the contestants: ‘This is an appeal from a judgment of the Circuit Court for the County of Kent allowing the last will and testament of Olive Merritt, Deceased. The contestants have appealed from this judgment, claiming that the letter sought to be probated is not a will on its face, and that if it is a will, then the Court erred in refusing to submit the case to the Jury,’ on questions of fraud and undue influence.

Olive Merritt, in 1917, had been a long-time resident of Grand Rapids and possessed a substantial estate. She was a childless widow. In October, 1917, the probate court for the county of Kent appointed a special guardian for Mrs. Merritt's estate and, in February, 1918, the probate court for the county of Kent, on a finding that ‘she is mentally incompetent to have the charge, custody and management of her person and estate’, appointed a general guardian for Mrs. Merritt's estate. In November, 1917, Mrs. Merritt went to live with her brother John A. Boone in the city of New York and remained there until her death in September, 1936. During such period of about eighteen years the guardian was authorized to pay, and paid, Mr. Boone $25 a week for the support and maintenance of Mrs. Merritt. At the time of her death Mrs. Merritt was about sixty-eight years of age. On May 6, 1936, while so living with her brother, Mrs. Merritt sent a letter, addressed to the probate judge for Kent county, and it was received by the court, placed on file and admitted to probate in the probate and circuit courts as the last will and testament of Mrs. Merritt:

We quote the letter:

‘New York, May 6, 1936’

‘Mr. Clarke E. Higbee,

‘Judge of Probate Court,

‘Grand Rapids, Michigan

‘My dear Judge Higbee:

‘I have been living here with my brother and his dear wife for nineteen years, but God in his wisdom saw fit to call my sister-in-law, Mrs. Olivia Boone, four years ago on the 5th day of March.

‘Since she has passed on, I have been keeping house for my brother and am now in my right mind and knowing just what I am doing.

‘I say to you, Mr. Clarke E. Higbee, and to my guardian, the Michigan Trust Company, this is my Will and last statement.

‘Please be kind enough to transfer and give my estate to my brother, John A. Boone, who has taken care of me all of these years.

‘I am growing old, Judge, I will be 68 on the 12th day of Sept. and would like to have some real pleasure in life and in my old years with what is really my own, and as my brother has now retired from the theatrical profession I am sure he will grant any request I may ask him.

‘Thanking you for all favors you have given me in the past and trusting you will grant this my last request, I remain,

‘Yours most sincerely,

‘Olive Merritt

‘Olive Merritt.

qqi w

‘Witnesses

‘Salley Lavender

‘George E. Timm

‘Adrian A. Feehan.’

One of the witnesses was a roomer at the Boone home and testified that Mrs. Merritt stated to him that she desired to make a will and, at her dictation, he took down the letter above mentioned, read it to her, she expressed approval thereof, he then had Mr. Boone typewrite what he had written and, in the presence of another roomer, who was a witness, and the sister of the deceased, she signed the letter, stating it was her will and asked the three mentioned persons to sign as witnesses, and they did so sign.

The sister, whose signature it is claimed is on the letter, was a witness at the trial and denied being present, as claimed by the former witness, and said that her name thereon did not carry her usual shading and she never witnessed the will but, at the request of Mr. Boone, had signed her name on the margin of a blank piece of paper.

The will was executed in the state of New York where two witnesses only are required, and two of the three witnesses testified to proper execution.

Contestants claim that the letter disclosed a desire on the part of Mrs. Merritt to have the management of her estate placed under the control of her brother, and that the letter was not so ambiguous as to authorize extrinsic evidence of the intent...