Nat'l Sav. & Trust Co. v. Smith (In re Smith's Estate)

• Decision Date: 04 April 1944
• Docket Number: No. 54.,54.
• Citation: 14 N.W.2d 71,308 Mich. 518
• Court: Michigan Supreme Court
• Parties: In re SMITH'S ESTATE. NATIONAL SAVINGS & TRUST CO. v. SMITH.

308 Mich. 518

14 N.W.2d 71

In re SMITH'S ESTATE.NATIONAL SAVINGS & TRUST CO.

v.SMITH.

No. 54.

Supreme Court of Michigan.

April 4, 1944.

Proceedings in the matter of the estate of Robert Livingston Smith, deceased, wherein the National Savings & Trust Company presented an instrument to probate court as last will and testament of the deceased, and wherein Florence D. Smith, widow, filed objections, and on her petition, the will contest was certified to the circuit court. From an adverse judgment, the contestant appeals.

Affirmed.

Appeal from Circuit Court, Cheboygan County; James E. O'Neill, judge.

Before the Entire Bench.

Ward I. Waller, of Cheboygan, and Benjamin V. Halstead, of Petoskey, for appellant.

Lewis E. Berry, of Cheboygan, for appellee.

BUSHNELL, Justice.

Proponent, National Savings and Trust Company, of Washington, D. C., presented an instrument in proper form to the probate court for the county of Cheboygan, as the last will and testament of Robert Livingston Smith, deceased. Contestant Florence D. Smith, his widow, filed objections to the allowance of the proposed will and upon her petition under the provisions of Act No. 288, chap. 1, § 36, Pub.Acts 1939, as amended by Acts Nos. 26 and 176, Pub.Acts 1941 (Comp.Laws Supp.1943, § 16289-1(36), Stat.Ann.1943, Rev. § 27.3178(36), the will contest was certified to the Circuit Court for the County of Cheboygan, where it was heard by the trial judge sitting without a jury. Contestant filed objections in the circuit court, to which was added by stipulation of counsel the claim that the decedent intended a certain instrument, dated May 28, 1936, hereinafter referred to as the Nassau will, to be his last will and testament, and did not intend the instrument, dated October 23, 1939, hereinafter called the Nebraska City will, to be his last will and testament. The circuit court admitted the Nebraska City will to probate and contestant has appealed from such judgment.

Although the objections filed by the contestant included mental incapacity and undue influence, these were abandoned and the case was tried on the sole issue of whether the decedent at the time he executed the Nebraska City instrument intended it to operate as a testamentary disposition of his property.

Appellant's several claims on appeal may be summarized in the contention that the evidence produced at the trial did not preponderate in favor of proponent.

The decedent, Robert L. Smith, was the adopted son of Sarah L. Smith and Fred B. Smith, of Nebraska City, Nebraska. Fred B. Smith established a trust for Robert's benefit, of which proponent National Savings and Trust Company was one of the trustees. Under this trust, Robert had the power of disposition of the residue by will, excepting an interest therein which remained in the name of his adopted son, Richard B. Smith.

Decedent and contestant, Florence D. Smith, were married in 1933, and had no children. Their legal residence was at Indian River, Cheboygan county, Michigan. They also maintained a home at Nassau, in the Bahamas, where the Nassau will was executed in 1936. The record shows that Robert L. Smith discussed the drafting of a new will with his foster-mother's attorney, John M. Dierks, a former county judge in Nebraska, sometime in September of 1939 at his mother's home in Nebraska City. Judge Dierks represented the National Savings and Trust Company in the administration of the Fred B. Smith trust. The instructions he received from Robert L. Smith were transmitted to the trust company, and Judge Dierks later received from it a draft of a proposed will. Robert L. Smith was afflicted with Hodgkin's disease and had, in the meantime, left Nebraska City to go to Ann Arbor, Michigan, for medical treatment. The trust company's draft was mailed by Judge Dierks to him at Ann Arbor on October 19, 1939, and remained in his possession until its execution in Nebraska City on October 23rd.

On October 21st, Ann Kuslak, a registered murse of Ann Arbor, Michigan, was called to attend Robert L. Smith, and she left Ann Arbor with him that day by train for Nebraska City. They arrived at the home of his mother on Sunday, October 22nd. The following morning Judge Dierks called on Robert. Nurse Kuslak was not in the room during the visit of Judge Dierks, but shortly thereafter, while they were alone, Robert asked her to write a letter to his wife, which he signed and the nurse witnessed. She was told by Robert that, in case of his death, ‘to be sure and give it to his wife. Mrs. Florence DeVore Smith.’ Miss Kuslak was relieved of her duties that day and left for her home in Ann Arbor that evening. This letter, received in evidence over the objection of proponent, reads as follows:

‘Nebraska City, Neb.

‘October 23, 1939.

‘To be given to my wife Florence DeVore Smith, in case of my death.

‘Dear Florence;

‘Mother had me sign a ‘will’ this morning, but I had nothing to do with the way it was made, for it was not my intention or wish to make another ‘will’ now. You know I am too sick to go into all that, but in case of my death Florence, I want the ‘will’ I made in Nassau two or three years ago carried out, for that was my last will and is still my wish.

‘Robert L. Smith

‘Dictated per Mr. Smith to A. Kuslak, R.N.’

The Nebraska City will, executed the same day as the letter, was witnessed by Judge Dierks and two other parties. This will does not mention the Nassau will and differs materially from it in its terms. It contains a bequest to a friend, Ben Janes, which was interlined by Judge Dierks at the request of Robert, and initialed by him before the will was executed.

Robert died at the home of his foster-mother in Nebraska City on October 31, 1939, eight days after the execution of the will. After Robert's death his widow located Nurse Kuslak through one of the doctors at the Ann Arbor hospital and called upon her with her attorney. Nurse Kuslak testified that at the time she did not know whether these parties were who they represented themselves to be, nor could she be positive that Robert was dead. She did not then deliver the letter to Florence or say anything about it. After their departure, Nurse Kuslak verified the factual situation by conversation with an Ann Arbor doctor. She then telephoned Mrs. Florence Smith at Indian River, Michigan, and told her she had something that would be very helpful to her. Subsequently the letter was delivered to the contestant.

To constitute a valid will the instrument must have been executed with testamentary intent, and a presumption of such intent usually arises upon a showing of execution of such a writing in form and substance as required by statute. See § 5, chap. II of the Probate Code, Act No. 288, Pub.Acts 1939, as amended, Stat.Ann. § 27.3178(75), and In re Cosgrove's Estate, 290 Mich. 258, 287 N.W. 456, 125 A.L.R. 410.

The controlling question in the instant appeal is whether extrinsic evidence is admissible for the purpose of showing lack of testamentary intent.

The letter in question was received in evidence over proponent's objection.

The English rule enunciated in Lister v. Smith, 10 Jur.N.S. (Eng.) 107, 3 Sw. & Tr. 282, 33 L.J.P. 29, 9 L.T.N.S. 578, 12 W.R. 319, is stated in Re Kennedy's Estate, 159 Mich. 548, 124 N.W. 516, 518, 28 L.R.A.,N.S., 417, 134 Am.St.Rep. 743, 18 Ann. 417,134 Am.St.Rep. 743,18 Ann.Cas. 892, as follows: parol evidence thus to outweigh the sanction of a solemn act are obvious. It has a tendency to place all wills at the mercy of a parol story that the testator did not mean what he said. On the other hand, if the fact is plainly and conclusively made out, that the paper which appears to be the record of a testamentary act, was in reality the offspring of a jest, or the result of a contrivance to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the court should turn it into an effective instrument. And such no doubt is the law. There must be the animus testandi;' citing Nichols v. Nichols, 2 Phill. 180; Trevelyan v. Trevelyan, 1 Phill. 149; Swinb. pt. 1, s. 3; Shep.Touch. 404; Pym v. Campbell, 6 El. & Bl. 370. * * *

“But here I must remark that the court ought not, I think, to permit the fact to be taken as established, unless the evidence is very cogent and conclusive. It is a misfortune attending the determination of fact by a jury, that their verdict recognizes and expresses no degree of clearness in proof. They are sworn to find one way or the other, and they do so sometimes on proof amounting almost to demonstration, at others on a mere balance of testimony; sometimes upon written admissions and independent facts proved by disinterested parties, sometimes on conflicting oaths or a nice preponderance of credibility. And it is difficult to impress them with the enormous weight which attaches to the document itself as evidence of the animus with which it was made. This weight it becomes the court to appreciate, and to guard with jealousy the sanction of a solemn act. In the present case, however, the court finds the evidence so cogent, that it is prepared to act on the finding of the jury that the codicil was executed as a sham and a pretense, never seriously intended as a paper of testamentary operation. But I am far from saying that the court will in all cases repudiate a testamentary paper simply because a jury can be induced to find that it was not intended to operate as such. The character and nature of the evidence must be considered, as well as the result at which a jury have arrived, and the court must be satisfied that it is sufficiently cogent to its end.”

In the Kennedy case this court rejected the English rule by saying:

“The momentous consequences of permitting parol evidence thus to outweigh the sanction of a solemn act,' referred to by the court in the case of Lister v. Smith, supra, are still more momentous under the laws of this state, since, under the rule of evidence...