Lange v. Wiegand
| Decision Date | 12 February 1901 |
| Citation | 125 Mich. 647,85 N.W. 109 |
| Court | Michigan Supreme Court |
| Parties | LANGE v. WIEGAND et al. |
Error to circuit court, Wayne county; Joseph W. Donovan, Judge.
Objections by Henry J. Wiegand and others to the application of Frederika Lange for the probate of the will of Henry Wiegand. From a decree refusing to admit the will to probate, the proponent brings error. Reversed.
Bacon & Yerkes and T. E. Tarsney, for appellant.
James H. Pound, for appellees.
Henry Wiegand died in the city of Detroit August 21, 1896, leaving an estate consisting of $1,554.83 deposited in the Wayne County Savings Bank and $2,960.95 deposited in the Detroit Savings Bank. Shortly before hid death he made a will leaving all his property to his daughter, Frederika Lange the proponent. She filed the will for probate, and on the hearing in the probate court the other children of Henry Wiegand, to wit, Henry J., William, and John W. Wiegand, and Catherine Karman, filed objections to the probate of the will. The probate court refused to admit the will to probate. An appeal was taken to the circuit court of Wayne county, and was there heard before the court and a jury. The jury found against the proponent. She brings the case into this court by writ of error. The objections filed to the probate of the will are: (1) That at the time of the execution of the will Henry Wiegand was not of sound mind and disposing memory; (2) that at the time of the alleged signing of the will the said Henry Wiegand was a mental wreck, unable of appreciating the same; (3) that, if the will was ever signed by Henry Wiegand, his signature was procured by undue influence; (4) that the will was never signed or witnessed as required by the laws of this state; (5) that, if he ever signed it, it was procured from him by fraud, and without his knowing or understanding what it was.
It appears from the testimony offered by the proponent that the testator was taken sick some time in the night of the 18th or 19th of August, 1896; that at about 5 o'clock in the morning he awakened his daughter, the proponent, and told her that he felt sick, but that at that time he was up, and around the house; that about 8 o'clock he requested her to send over for his neighbor Henry Kamp to come and stay with him, and also directed her to go and have a will drawn that, after Mr. Kamp came, she went to the office of Mr. Wilcox, and informed him that her father wished to have a will drawn, and wanted to leave whatever property he had to her; that Mr. Wilcox drew the will, and she returned home, arriving there between 10 and 11 o'clock in the forenoon; that at the request of the testator the proponent went downstairs, and asked Nicholas Burns and H Cohen to come upstairs; that they did so, and Mr. Burns, at the request of the testator, read the will over to him; that the testator signed it, and Mr. Kamp, Mr. Burns, and Mr. Cohen, at the request of the testator, signed the will as witnesses in his presence; that, after the will was signed and witnessed, the testator said it was his will; that, after he had signed the will, he requested the proponent to get his pants; that she got them, and he took a key out of the pockets, and opened a satchel, which he directed her to get; that the testator took out of the satchel two bank books, and handed them to her, telling her to take them, that they were hers, and at the same time stating that his other children had had their shares. Mr. Kamp testified that he had known the testator in his lifetime since 1857 or 1858, and had been intimate with him; that for about six weeks or two months before his death he saw him every day, and that he told him a number of times that he was going to make a will, and give what he had to his daughter Rika, th proponent. Harris Cohen testified that he had known the testator five or six years prior to his death; that he was of sound mind at the time of the execution of the will and during all the time he knew him. Andrew Armstrong testified that he had lived in the city of Detroit for eight years, and knew the testator; that prior to that time he lived in the township of Taylor, where the testator lived from 1866 to 1867 up to the time of his coming to Detroit, eight years before; that the testator held the office of justice of the peace in that township; that he was a man of sound mind at the time of the execution of the will; that he met him many times in Detroit, and had had a conversation with him about two weeks before he died, in which he stated that what he had left of his property would go to the proponent. Several other witnesses were called, who had known testator in the city of Detroit and up to the time of his death, who testified that he was of sound mind up to the time of the making of the will. The contestants called several witnesses, who testified that the testator was not of sound mind. Some of this testimony was objected to on the ground that these witnesses had not known the testator since the time he left the farm in 1889, some seven years before the will was made. The court admitted this testimony upon statement made by counsel that several acts stated by the witnesses, which they thought were some proof of mental aberration, would be shown to continue down to the time of the death of the testator. This, we think, they wholly failed in doing. Nothing was shown by these witnesses which had any bearing on testator's competency during the time he lived in Detroit. The court should not have permitted this testimony to be given, or at least should have stricken it out, unless some testimony was offered showing the continuation of such claimed mental aberration up to or near the time of testator's death. It appeared from the testimony that soon after this will was executed the testator began to fail rapidly, and there is some testimony tending to show that in the night prior to the making of the will he had a slight stroke of paralysis. Dr. Yates was called in the afternoon after the will was executed. He was asked whether, in his opinion, the testator had sufficient capacity to make a will. This was objected to as incompetent and immaterial. The objection was overruled, and the doctor permitted to answer the question. It is claimed that Dr. Yates was not possessed of sufficient information to admit his opinion as to the competency of the deceased. It appears that the will was signed in the forenoon. The witnesses for proponent do not agree as to the time, but one witness states it as between 10 and 11 o'clock. The doctor testifies as to the time of his attendance, and as to what he discovered, as follows: 'I do...
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