Lamb v. Lippincott

• Decision Date: 25 January 1898
• Citation: 115 Mich. 611,73 N.W. 887
• Court: Michigan Supreme Court
• Parties: LAMB v. LIPPINCOTT ET AL.

73 N.W. 887

115 Mich. 611

LAMB v. LIPPINCOTT ET AL.

Supreme Court of Michigan

January 25, 1898

Error to circuit court, Lapeer county; George W. Smith, Judge.

Action by Harry H. Lippincott and others against Edwin Lamb to contest a will. From a judgment in the probate court allowing the will, contestants appealed to the circuit court, which also allowed the will, and contestants bring error. Affirmed.

Dwight N. Lowell (W. W. Stickney, of counsel), for appellants.

Geer Williams & Halpin, for proponent.

MOORE J.

Jesse Emmons died in August, 1893. His father and mother at times had both been insane; also, several of his brothers and sisters. His wife died a good many years ago. Mr Emmons was a capable business man. He had been a farmer, and a member of various business enterprises. His only child (a daughter) married Edwin Lamb. There were periods in the life of Mr. Emmons when he was given to melancholia, and feared that harm would come to himself, and that he might do harm to others. In April, 1883, he was committed to the Eastern Insane Asylum, where he remained until July, when he was discharged as "improved." In April, 1884, he again entered the asylum, where he remained until in October, when he was again discharged as "improved." In the spring of 1889, Mrs. Lamb, who was somewhat along in years was about to give birth to her first child. Mr. Emmons was much worried about the outcome, and feared that it might have a bad effect upon himself. It is the testimony of his physicians that he desired to re-enter the asylum, and he did so in March, 1889, where he remained until June, 1890, when he was discharged again as "improved." It is the claim of proponent that there was no period of Mr. Emmons' life, prior to the making of his will, when Mr. Emmons was not competent to attend to all ordinary business affairs; and the testimony of the physicians, including the superintendent of the asylum, tends to support that contention. This was denied by contestants, and they offered testimony which they claim supports their theory. For a number of years, Mr. Emmons had been associated in business with his son-in-law, Edwin Lamb, and with J. C. Lamb, who was the father of Edwin Lamb, and for a good many years prior to his death he had been an inmate of the same household as Edwin Lamb. Mrs. Edwin Lamb died during her confinement, in the spring of 1889. As already stated, Mr. Emmons was discharged from the asylum in June, 1890. Upon his return to Dryden, he resumed his living with Edwin Lamb. In December, 1890, he told Jacob C. Lamb, the father of Edwin Lamb, he desired to make his will, and gave Mr. Lamb a memorandum, and requested Mr. Lamb to draw the will for him. Mr. Lamb testifies that he took the memorandum, and made a pencil draft of the will, which was drawn so as to express the desire of Mr. Emmons, and asked Mr. Tucker to copy the draft with pen and ink. Mr. Tucker testifies that he had no legal-cap paper, and that, supposing a will should be written only upon one side of the paper, he tore a sheet of foolscap in two, and the top half of one sheet was pasted to the bottom half of the other. The will was not long, and it was all contained on one side of the paper as thus prepared; Mr. Emmons signature appearing just below where the sheet was joined. When the will was drawn, it was signed by Mr. Emmons, and, at his request, by Mr. Tucker, Mr. Parker, and J. C. Lamb, as witnesses. By the terms of the will, Mr. Emmons gave all his property to Edwin Lamb. In case Mr. Emmons outlived Mr. Lamb, all the property was willed to the brothers and sisters of Mr. Emmons, share and share alike. After a contest in the probate court, the will was allowed. The case was appealed to the circuit court, and was again allowed. The contestants bring the case here by writ of error.

Counsel complain of remarks made by counsel for the proponent in his opening to the jury. The record does not disclose that the objections now made were made at the trial. It is stated in the supplemental brief of counsel that the stenographer's minutes show that objections were made, and exceptions taken. This court, however, must be governed by the record as it appears here.

Counsel complain with a good deal of earnestness of remarks made by the court in the course of the trial which it is claimed were improper and prejudicial. By separating sentences, here and there, from what preceded and followed, some plausibility is given to this contention; but when the sentences are put with the context, and the circumstances under which they were uttered are taken into consideration, we do not think that it can be said that the remarks were so improper or prejudicial that the case ought to be reversed for that reason.

The contestants had caused a subp na to be issued directing Jacob C. Lamb to produce the memorandum given to him by Mr. Emmons when the will was drawn, and Edwin Lamb to produce other papers. Mr. J. C. Lamb testified that he had made diligent search for the memorandum, and could not find it, and did not know where it was. We think this would justify Mr. Lamb in not producing the paper. Mr. Edwin Lamb testified that he had the papers mentioned in the subp na directed to him in Lapeer. His counsel claimed that they were papers of such a nature that the contestants were not entitled to examine them. The judge said that the papers might be produced, when he would determine whether they were proper or not. At this point in the discussion, Mr. Williams, one of the counsel for proponent, suggested that he would like the matter to go over until morning, as his associate counsel was then absent, attending a funeral. Counsel for contestants made no objection to a postponement of the matter until morning, and there is nothing in the records to show that the subject was again brought up. Under these...