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was executed; and so, where proponent testified, without contradiction, that he had erased the word “fore" and corrected it to "four," the court did not err in refusing to give requests to charge presented by contestant that if proponent had failed to account for the erasures the jury should consider that failure in determining upon their verdict, that they might examine the will and the erasures and consider them in relation to the part proponent took in its execution, that if the word “two" appeared under the “four" they should consider the fact in weighing proponent's testimony, and the burden was on proponent to explain the erasures, and if not satisfactorily
accounted for the instrument was not the will of decedent. 4. SAME-REVOCATION-SUBSEQUENT WILL.
Testimony tending to show execution of a subsequent
will, afterwards destroyed by testatrix, did not prove rev. ocation of the previous testament, without proofs that
the later instrument contained an express revoking clause." 5. SAME.
Evidence offered by contestant as to decedent's relations
with her sons and other members of the family, such as money supplied to one of them for his education, authority given by letter to purchase property and other matters, having no reference to a will or proposed change in the
will, was properly excluded as immaterial. 6. SAME-COMPROMISES.
Nor was it error to exclude from the consideration of
the jury evidence of an agreement effecting a settlement between the sons of testatrix, not signed by another beneficiary named under the will offered for probate, since no disposition of his interest in the estate could be effected without his consent and it was necessary to probate the
will in order to obtain his bequest. 7. SAME-EVIDENCE-REVOCATION.
Alleged admissions of the testatrix that she had de
stroyed her will and ought to make another were objectionable under the rule that a duly executed will may not be shown to be inoperative by declarations of testatrix that she did not intend it to be a final disposition of her estate.
1 The question of the revocation of a will by a subsequent will is discussed in a note in 37 L. R. A. 561.
Error to Saginaw; Gage, J. Submitted April 15, 1913. (Docket No. 65.) Decided May 28, 1913.
James A. Connery presented for probate the last will of Christina Sutherland Connery, deceased, which was admitted to probate. Contestant, William S. Connery, appealed to the circuit court. Judgment for proponent. Contestant brings error. Affirmed.
Eaton, Holland & Smith, for appellant.
Frank E. Emerick and Emmet L. Beach, for appellee.
STONE, J. This case is in this court for the second time. When first here it will be found reported in 166 Mich. 601 (132 N. W. 448). The case was reversed and sent back for a new trial. Another trial has been had resulting in a judgment in favor of proponent, admitting the will of Christina Sutherland Connery, deceased, bearing date August 15, 1904, to probate, and the contestant has brought error.
The testatrix died January 18, 1908, leaving surviving her a husband, James A. Connery, who is proponent of the will, two sons, William S. Connery, who is contestant, and J. Alfred Connery, all of Saginaw, Mich., and also a brother, John Sutherland of Virginia, Minn. It is undisputed that another and later will was executed by testatrix in 1905.
Upon the trial in the circuit court the proponent, after testifying to the execution of the will of August 15, 1904, on direct examination, testified on cross-examination as follows:
“The will that has been shown to me was not the last will that my wife executed. Probably about a year, maybe two years afterwards, she executed one other; that was witnessed by Mr. West and Mr. Dennert, downstairs in the dining room. There were no other wills after this one, except that."
Proponent testified that, while he was driving his wife to the hospital for the operation which resulted in her death, she said she had destroyed “that will,” or “a will," and he testified as follows:
“Q. At the time she told you she had destroyed the will, didn't she say to you that she ought to make another will ?
“A. I don't know that she did, but we had talked it over several times.
"Q. You won't say she didn't say that, will you, Mr. Connery? Didn't you testify to that in the probate court?
“A. We might have talked it over; I am not positive.
"Q. Well, isn't it a fact that she said on the way over that she destroyed the will and that she ought to make another?
"A. We talked it over several times; we might have, coming up.
"Q. You might have on the way over? “Ă. We might.”
Testatrix and proponent had a tin box in which they kept their papers. Either one of them had a key when they wanted to use it. Proponent testified that at the time of the execution of the will dated August 15, 1904, either he or his wife put it in the tin box; that the box was put in a piece of furniture originally made for a library, and later used for a clothes press; that proponent still had the tin box; and that both wills were together in the box. He testified as follows:
"Q. You stated to your two sons that you had two wills, one of which practically cut off William S. and the other divided the property equally between them?
"A. I don't think I said so. I testified yesterday I told them there were two wills. I didn't say how the distribution, or anything else, was.
"Q. You knew what the wills were, didn't you?
"Q. But you knew most of what everything was in the will, didn't you? You knew the substance of the will?
"Q. They had been in that tin box; you had looked them over, and read them over, and talked them over?
“A. Yes, I had looked them 'over.
"Q. You meant what you said when you told them that you had two wills?
“A. Yes, sir.”
Proponent told his sons that his wife did not want the will probated for a year after her death. When the year was up, and about January 30, 1909, the two sons went to their father and asked him to have the will probated. He said that he did not have the will in his possession, but that it was in the safety deposit vault. William then asked him if he would get it before the bank closed, and he replied that he would not. Then William said, “Will you tomorrow?” and he said, "Maybe I will;" but he did not, and left the city on February 3d. Proponent testifies that he found the will in October or November, 1908. The two sons then entered into the agreement Exhibit B, which was as follows:
“Whereas, Christina Sutherland Connery, mother of the undersigned, departed this life on January 18, 1908, leaving surviving her James A. Connery, husband, and the undersigned, William S. Connery and Alfred Connery, sons and sole heirs at law, and whereas our mother, the said deceased, died seized and possessed of certain real and personal estate regarding the disposition and descent of which she had expressed her wishes by will and at later date by stating her wishes, and whereas, being desirous of carrying out the intentions and wishes of our mother and for the saving of any and all questions that might lead to or require a legal decision to determine as to the legality of said wishes and former will and its revocation, and as a means of adjusting and settling the rights of the undersigned as sons and heirs of deceased, and in consideration of the foregoing and the amicable and friendly settlement of mutual interests as sons and heirs, it is hereby mutually agreed by and between the undersigned that in lieu of any and all rights as heirs, devisees, and beneficiaries of deceased, as follows:
“(1) We agree that our father, James A. Connery, shall enjoy the use of the property known as the Flats, corner of Johnson and Washington streets, Saginaw, Mich., during the term of his life, to the extent that the will or written wishes of our mother provided he should enjoy the same, but in any event for his life only, he paying legacies and debts.
"(2) We agree to receive, as heirs and devisees in lieu of all provisions by will or wish and in satisfaction of any such rights, an undivided one-half interest to each in and to all estate, real and personal, of our mother; that is, to receive and inherit said property as equal tenants in common.
“(3) We authorize the probate court for Saginaw county to make any and all orders necessary to carry the foregoing into effect and to distribute and administer said estate in accordance therewith.
"In witness whereof, we have hereunto set our hands and seals this 29th day of January, 1909. "WM. S. CONNERY.
[L. S.] "J. ALFRED CONNERY, JR. (L. S.] “Witnesses:
"FRED L. EATON.
"CHARLES WINTERMEYER.” This agreement was excluded by the court on the objection of proponent's counsel that it was incompetent, irrelevant, and immaterial, and in no way attempting to disprove the validity of the will, and because this court, when the case was here before, sustained the former ruling of the trial court excluding it. The court said:
“This agreement was offered and the court ruled it out on the former trial, and the contestant took an exception. The Supreme Court in no way passed upon that, and it certainly would be an important matter in a new trial. If they knew it was coming back for a new trial, they would indicate their views in regard to it.”
Whereupon the objection was sustained, and counsel for contestant excepted.
Proponent filed the petition for the probate of the