Jackson v. White (In re Jackson's Estate)

• Decision Date: 05 December 1922
• Docket Number: No. 81.,81.
• Citation: 220 Mich. 565,190 N.W. 762
• Parties: In re JACKSON'S ESTATE. JACKSON v. WHITE et al.
• Court: Michigan Supreme Court

220 Mich. 565

190 N.W. 762

In re JACKSON'S ESTATE.JACKSON

v.WHITE et al.

No. 81.

Supreme Court of Michigan.

Dec. 5, 1922.

Error to Circuit Court, St. Clair County; Harry Tappan, Judge.

In the matter of the estate of Abner Jackson, deceased, Proceedings to probate will by Nellie Jackson, contested by Sarah Josephine White and another. To review judgment of circuit court for contestants on appeal from judgment of probate court, admitting will to probate, the proponent brings error. Judgment reversed, and new trial granted.

Argued before FELLOWS, C. J., and WIEST, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Per Clark, McDonald, and Moore, JJ., and Fellows, C. J. Lincoln Avery, of Port Huron, and George C. Watson, of Capac, for appellant.

Walsh & Walsh, of Port Huron, for appellees.

SHARPE, J.

Abner Jackson died on July 31, 1919, leaving a last will and testament, executed on December 12, 1918, by the terms of which he bequeathed to his grandson, Franklin Jackson, $50, to his daughter, Sarah Josephine White, $5,000, and the residue of his estate to his wife, Nellie Jackson. Mrs. White and Franklin's father were children of a former wife, a sister of proponent, then living, but divorced from testator. Notice of contest was filed by Mrs. White and the guardian of Franklin, who was a minor. The will was admitted to probate, and an appeal taken to the circuit court. The reasons for the contest were the alleged mental incompetency of the testator and the claim that the will was executed owing to the undue influence exercised over the testator by his wife. At the conclusion of the proofs, proponent's counsel moved for a directed verdict. The trial court withdrew the question of mental incompetency from the consideration of the jury, and submitted to them the question of undue influence. They found against the will. Proponent reviews the judgment entered by writ of error.

At the outset it may be stated that the deceased went alone to his lawyer's office, instructed him as to the disposition he desired to make of his property, and returned later in the day, and executed the will in the presence of the lawyer and the cashier of the bank at which he did business, who was called in at his request to act as a witness. The circumstances surrounding the making of the will are not such as to lead to any inference that undue influence had been exercised in procuring its execution. He took the will with him, and it was found by his attorney among his papers after his burial. The proofs submitted by contestants were offered to support the claim of mental incompetency as well as undue influence.

There was considerable testimony tending to show that proponent was in the habit of drinking intoxicating liquor to excess, to the mortification of the deceased. During the greater part of their married life of more than 20 years, the deceased was the proprietor of a hotel at Capac, in which a bar was maintained. He drank himself, though it is claimed not to excess. Witnesses for contestants testified that he served liquor to proponent and guests in the living rooms of the hotel. This testimony is said to show the improbability that deceased would confer upon his wife ‘full possession and control’ over the residue of his estate ‘when he knew that she was a person who constantly indulged in intoxicating liquors, became intoxicated and irresponsible.’ There is no testimony tending to show that proponent was wasteful of money when drinking, went on sprees or trips, or otherwise squandered, or was likely to squander, testator's money or her own in the use of intoxicating liquor.

A former will was executed by the deceased in 1917. It appears that it was kept by him until 1919. It was not found among his papers after his death. Attorney Watson, who prepared it, as well as the second will, testified to its contents from his notes used in its preparation. At that time, a daughter, Vonda, a child of the second marriage, about 3 years of age, was living. It appears that both the testator and the proponent were deeply attached to her. In this will, he gave to the proponent his residence in Yale and his hotel in Capac, with reversion to Vonda in the event of her death or marriage. $5,000 was bequeathed in trust to his son Frank, the father of Franklin, to be so held until he reached the age of 37 years. In case of Frank's death, $1,000 was to go to his children and the balance to proponent and the children of testator. Mrs. White was to get $1,000. Vonda was to have $1,000 stock in the Yale Woolen Mills, and she and proponent the use of his 120-acre farm. In the event of their death or the marriage of his wife, the farm was to go to his children. Frank was to get outright two city lots in Detroit of no great value. All moneys after payment of his debts were to be divided between proponent and Vonda. It is insisted by contestants that the change made in the disposition of his property to proponent's benefit in the second will is a strong indication of undue influence exercised by her over him in its making. If we apply the rules of law applicable to testamentary disposition, we do not think any such inference can be fairly drawn therefrom.

Counsel lose sight of another fact, strongly indicative of the reason why the second will was made and why the provision for proponent was so much increased therein. Both the deceased and proponent were greatly affected by the death of Vonda, which occurred in 1918. They made several efforts to adopt a child to take her place. In March, 1919, they entered into a written agreement with Mrs. Milburne, of London, Ontario, by the terms of which she turned over to them her female child about two months old. They agreed to adopt this child and to ‘maintain, board, lodge, clothe and educate’ her ‘in a manner suitable to the station of the parties of the second part to the same extent and in the same manner as if the said child was their own lawful child.’ The deceased grew very fond of the little babe, and it is apparent that he was impressed by the obligation as to its care, etc., which he and proponent had assumed. No legal adoption papers were executed.

The obligation primarily resting on him at the time the will in question was made was to provide for the proponent, with whom he had lived for about 20 years, who, aside from the claims made as to her drinking habits and to alleged trouble with his daughter, Mrs. White, had been a prudent, faithful, hardworking wife and mother. This obligation, at least to the extent for which the law makes provision for her, could not be avoided. The regal obligation which both deceased and proponent had assumed in the agreement with Mrs. Milburne must also be provided for. As this obligation was joint, we think no inference of undue influence can be drawn from the provision made for its fulfillment. There is testimony that after this will was made he talked with Mr. Watson about reviving his first will and making the provision made therein for Vonda applicable to this child. He was advised as to how this could be done. The fact that he did not do so is stongly suggestive that upon further reflection he was satisfied with the will as made.

There is testimony tending to show that soon after the marriage of proponent and deceased she had trouble with his daughter, Mrs. White, and that the latter was compelled to leave the home. This disagreement is, we think, magnified. It occurred a long time before either will was made. For several years before testator's death, Mrs. White was frequently at his home, and, as she says, ‘my relations with her were outwardly friendly.’ The claim is made that the testator was in error as to the financial condition of Mr. and Mrs. White at the time he made the will in question. Counsel say that--

‘The influence of Mrs. Jackson over him was so strong that she impressed him with the idea that the Whites were financially well fixed.’

Counsel fail to point out anything in the record even tending to show that the matter was ever discussed between them, and we have found none. If we concede that he was mistaken in the respect claimed, it has no bearing whatever on the claim of undue influence.

The fact that but a small bequest was made to his grandson is commented on. No legal obligation rested on him to make any provision for this child. It appears that his mother had procured a divorce from Frank before his death, and was awarded the custody of the child. While it appears that deceased was fond of the boy, it also appears that he discussed the bequest to him with his attorney at the time the will was prepared. We think no inference of undue influence can be drawn from the provision made.

It seems apparent to us that the facts stated did not justify the submission of this question to the jury. It is, however, claimed that there was direct evidence of undue influence which, when considered in connection with such facts, justified the action taken. This claim is based on the testimony of Ethel Jackson, the widow of testator's son Frank. We quote it, so far as applicable, in full:

‘It was between two and three years [weeks] after Frank's death. My father, William Harrison, Mrs. Abner Jackson and myself were present. This talk took place in the sitting room occupied by the Jacksons as their own living quarters, in the hotel at Capac. My father, Mrs. Jackson, and myself had been over to Yale, visiting my husband's grave. My father was speaking about how that they had settled up things when my husband died, and I didn't have very much trouble; that everything was fixed jointly that we had.

‘Q. What did he say about it?

‘Mr. Avery: Objected to as immaterial and irrelevant.

‘The Court: I assume it is leading up to other matters that may be more material.

‘A. He said if he had died before my mother died that things would have been fixed the same way for her, and she wouldn't have had no trouble, and Mrs. Jackson spoke up and said she was trying to...