Sidor som bilder

will in controversy in the probate court of Saginaw county, and contestant filed his objections, claiming, among others, that the signature of the witness Dennert to said will was procured through the fraud and misrepresentation of James A. Connery. A further objection was filed, after the probate court excluded the agreement, Exhibit B, covering that point. Proponent testified that in October or November, 1908, while taking out his wife's clothes from a chiffonier to air them, he found the will in question in the bottom drawer of the chiffonier; that the clothes were resting on a newspaper under them, and the will was under the newspaper; that when his wife died he went and looked in the box in which he had seen the will placed, but could not find it; and that there were no other wills in the box, but there were other papers, such as deeds, releases of mortgages, and receipts for taxes.

The will in question was drafted in 1902 by Alfred Newton of Saginaw, who died in the latter part of that year. Proponent testified that testatrix preserved this draft and on August 15, 1904, executed the same, and that proponent and one Fred W. Dennert affixed their names as witnesses at the time of its execution by testatrix and in her presence.

The witness Fred W. Dennert, whose name appears as a subscribing witness, testified that since the fall of 1905 he had lived in Detroit; that he had lived in Saginaw from 1903 until about October 17, 1905; and that during all the time he lived in Saginaw he had rooms in the Connery Flats. On direct examination he testified as follows:

Q. Mr. Dennert, I show you Exhibit A (the will in question) and ask you whether you recognize any of the signatures on that paper?

A. Yes, that is my signature, F. W. Dennert, Jr.

"Q. Will you state to the court and jury the circumstances under which you signed this paper ?

A. I was requested to sign the paper by Mr. Con

nery, and to come into their living apartments, or into their bedroom. He requested me to come into their room and witness a will. He was there at the time, but I don't recollect whether his wife was there at the time. I walked down after him.

“Q. When you went in there, who was there?

“A. He was there at the time. I don't remember whether his wife was there or not.

"Q. You can't recollect as to that? A. No, sir.

"Q. State the circumstances under which the paper was signed.

“A. Upon request; he asked me to sign it, and I signed it. I didn't read it over. I didn't know the nature of it. It was represented to me as a will; they told me it was; and I signed it.

Q. Where was the paper, on the table, or what?

“A. I refreshed my recollection some extent when I was there yesterday morning. I am rooming there with him during the time of this trial. He said, 'Fred, here, this is that chiffonier.' Showed me the dresser and the drawers, and then I said, 'Yes, I recollect that.' He came out in the other room; he said, “There is the table we had.' He showed it to me. I should judge the chiffonier came pretty near up to my shoulder. There was an ordinary standing table. I signed it upon a small table.

“Q. Do you remember Mr. Connery signing the paper?

A. That I cannot say. "Q. Or Mrs. Connery? “A. Some eight years, not possible. "Q. Now, you remember Mrs. Connery signing it? "Å. I can't.

"Q. You can't recollect Mrs. Connery being in the room?

"A. I don't remember whether she was there or not. “Q. You wouldn't say definitely?

"A. No, sir. I have no interest in the matter and gave it no attention afterwards. I cannot recollect the day of the week or the day of the month; I simply signed my name, to the best of my recollection. I think it was in the evening.

Q. What do you say now?
"A. I cannot change my testimony.

"Mr. Eaton: I object to counsel leading the witness. (Objection sustained.)

"Mr. Emerick: I want to get his very best recollection.

"The Court: I sustain the objection.

"Q. State what the facts are, whether or not you testified, as to whether it was morning or evening you signed it.

A. I believe it was in the evening. I couldn't state positively."

Cross-examination (by Mr. Eaton) :

"I have been employed a number of years as clerk in the department of parks and boulevards, practically charge of Belle Isle. I don't regard it as a highly responsible position, just a clerk; a man of ordinary capacity could fill it. I was 17 or 18 years with R. G. Dun & Co., and then with the New York Life Insurance Company. I regard my memory as up to the average, and under ordinary circumstances have a pretty fair memory, and on the evening in question I was not under the influence of liquor or anything like that, but was in the full possession of my senses. I don't know positively what time of day or night it was, but think it was the evening. I cannot state whether or not the lights were lighted. I was never in this room before, except once or twice, when I went to the door to pay my rent. I was there this morning. It is a small room.

"Q. If at that time Mrs. Connery had been sitting on the bed and asked you to sign that will and had signed in your presence and put her name on that instrument, is there any reason why you would not remember it?

"A. I simply don't remember it.

"Q. You never signed but one other will besides this in your life as a witness, have you?

"A. Subsequent thereto, not before.

"Q. You never signed but two wills in your life as witness?

“A. That is all. [Continuing:] One was the instrument just described, and the other was a will signed by Mr. West, another roomer at the Connery Flats, at a later date. Those are the only two times in all my life that I signed a will as a witness, and the only time I was in this room to sit down was on this occasion now referred to.

Q. And you remember Mr. Connery being in this room at that time?

"A. Yes, sir.

Q. You remember seeing him sign the will, do you not?

“A. That I don't know. "Q. Do you remember signing the will yourself? A. Yes. “Q. But you didn't read it?

“A. No, sir; I didn't read the contents of it, not that I know of. I had lived at the Connery Flats for probably two years and a quarter and was well acquainted with Mr. James Connery and Alfred Connery, but did not know Dr. William S. Connery so well. I think he has been living on the west side for several years.

"Q. You say you were over there yesterday?

“A. Yes. Mr. Connery asked me to go and showed me the chiffonier. I am positive I sat in a chair at this table and signed the will.

"Q. You didn't see anybody else sign? A. I don't remember that positively,

"Q. You testified in the probate court, and also on the other trial in this court, to the best of your recollection this was in the evening?

"A. Yes. To the best of my recollection it was in the evening.

“Q. As far as your memory went, you don't know whether Mrs. Connery was there or not?

"A. Yes.

“Q. Isn't it a fact the claim was never made in this case that this will was signed in the morning, either by you or Mr. Connery, until the case was tried in the circuit court? (Objected to as incompetent, immaterial, and irrelevant. Objection sustained. Exception.)”

Redirect examination (by Mr. Emerick):

"I lived there from the early summer of 1903 until about the middle of October, 1905. Mrs. Connery, at that time, was mentally competent.

"Judge Beach: We insist that the will we have offered in evidence be received in evidence.

"The Court: The will may be received. "Mr. Eaton: Note an exception.'

In the probate court the proponent had testified that the will was executed in the evening. Upon the trial in the circuit court he testified as follows, on crossexamination:

"Q. After your testimony was given in the probate court, we introduced evidence to show that your wife went away in the morning of the 15th of August, did we not?

"A. You did.

“Q. It was not until this case was tried in the circuit court that you testified positively that you knew it was in the morning?

“A. Not until it was tried in the circuit court.

"Q. And Mr. Dennert testified as well in the probate court that he believed that it was in the evening, didn't he?

"A. I don't know what he testified to.

"Q. And it was the claim made by you and Mr. Dennert, on your examination in the probate court, that this will was executed on the night of the 15th of August, 1904? (Objected to as incompetent. Objection sustained. Exception.)”

There was a red line drawn through a portion of the signature of testatrix in the will, which contestant claims was not satisfactorily explained. The only testimony on the subject appears in the cross-examination of proponent, as follows:

“Q. I call your attention to the red line that is drawn through a part of your wife's signature Christina and the first part of the word Sutherland.

A. I have seen it before.
"Q. Don't you want to look at it?
"A. No, sir; I know all about it.
Q. Will you tell us how that line came there?

"A. Yes, it was there, and my wife signed over it. I said at the time, 'You should not have signed on that red line.'

"Q. I notice an erasure of the word 'four.' A. Yes.

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