In Re Estate of Taylor

Frederick Taylor died March 27, 1932. His estate was duly administered by the probate court of Bay county; his property distributed; and the administrator discharged. Victor Dunn, his nephew, filed in the probate court of Bay county a petition to probate a will claimed to have been made in his favor and to have been fraudulently destroyed by Vincent F. Taylor, son of deceased. Objections to the establishment of the will described in the petition were filed by Vincent F. Taylor. July 28, 1933, Victor Dunn asked the contest be certified to the circuit court of Bay county for trial. August 9, 1933, the case was certified by the probate court of Bay county to the circuit court of the same county for trial. October 23, 1933, Vincent F. Taylor filed an additional objection to the petition of Victor Dunn. Judgment for defendant was directed by the trial court. Plaintiffs appeal. Two questions are presented — first, was there sufficient evidence introduced upon the part of plaintiffs Dunn to make the question of the destruction of the will by Frederick Taylor a question of fact for the jury; and, second, do the proceedings of the probate court constitute a former adjudication of the rights of the parties. It is conceded Frederick Taylor, in his lifetime, made and executed his last will and testament. It is the claim of his son, Vincent F. Taylor, the will was destroyed either by the testator himself, or at his express direction, by throwing it, or causing it to be thrown, in a stove and burned. In any event, no will has been found. The statute, 3 Comp. Laws 1929, § 13486, provides that a will may be cancelled by burning. "It is without question the rule of law that, where a will cannot be found at the death of the testator *Page 406 upon proper search being made, and especially where the will is not traced out of the possession of the testator, it is to be presumed that it was destroyed by him animo revocanda." In reKeene's Estate, 189 Mich. 97, 102 (Ann. Cas. 1918 E, 367). This presumption of revocation may be met by proof of declarations of the testator indicating the will was still in force, but no such testimony of declarations of the testator was introduced. After plaintiffs rested their case, defendant made a motion for directed verdict. Upon application of plaintiffs, the case was reopened and plaintiffs called Vincent F. Taylor, defendant, in pursuance of the statute (3 Comp. Laws 1929, § 14220), for cross-examination, and witnesses were later called to dispute in some particulars his testimony. When plaintiffs called defendant for cross-examination under the statute, defendant thereby became plaintiffs' witness. Plaintiffs are bound by his testimony except so far as it was disputed. In the consideration of defendant Taylor's testimony, plaintiffs may not select isolated portions thereof and claim a force and effect for such portions of his testimony which the whole of his testimony does not warrant. The testimony of the opposite party as a witness must be treated as a whole; and, when so treated, defendant's testimony negatives plaintiffs' claim. Jones v. Railroad Co., 168 Mich. 1; Cook v. RailroadCo., 189 Mich. 456; Steele v. City of Ionia, 209 Mich. 595;O'Dell v. Day, 214 Mich. 566; Waller v. Sloan, 225 Mich. 600;Swank v. Croff, 245 Mich. 657; Fleegar v.Consumers Power Co., 262 Mich. 537; Snyder v. Johnson,264 Mich. 286. As said in Fleegar v. Consumers Power Co., supra: "His testimony, being in the case, must be weighed and considered the same as that of any other witness *Page 407 (City of Kalamazoo v. Standard Paper Co., 182 Mich. 476); and though plaintiff was at liberty to contradict his testimony (Cook v. Railroad Co., 189 Mich. 456), she was bound thereby (Aphoresmenos v. McIntosh, 189 Mich. 680), except so far as such testimony was contradicted (Swank v. Croff,245 Mich. 657)." Conceding that all the testimony of Vincent F. Taylor should go out of the case, the presumption of revocation still remains unaffected. Defendant contends the question of who is entitled to the estate of Frederick Taylor, deceased, has been adjudicated and fixed by the various orders, including an order assigning residue, of the probate court of the county of Bay, in a complete administration of his estate as an intestate estate without an appeal being taken from such determinations and orders. This question was argued upon defendant's motion to direct a verdict. The records and files of the probate court in relation to the estate of deceased were not a part of the record as presented on appeal but plaintiff Victor Dunn testified: "Q. Didn't Mr. Taylor ask you if you claimed there was a will, and you were entitled to something, why you did not file your claim in the estate? "A. I don't remember him asking me that. "Q. Do you remember saying to him that you didn't have any claim? "A. I never said such a thing. "Q. What reason, if any, did you give Vincent Taylor for not taking up this matter before the estate was closed in the probate court? "A. Well, I never gave him any that I know of. "Q. Didn't you tell him that they would laugh at you if you went down there and made such a claim? The people down there at the probate court? "A. No, I did not. *Page 408 "Q. You knew this estate was being probated as an estate in which there was no will, didn't you? "A. I knew it was being probated, but he never told me it was probated without a will. "Q. Well, you knew it was probated without a will, didn't you? "A. I didn't know until I called the probate office one day, or the prosecuting attorney did for me, along probably the last of February, 1933." Plaintiff Victor Dunn testified that the next day after decedent's death Vincent Taylor and his wife had dinner at his house, and that Mr. Taylor then told him decedent had destroyed his will three or four days before his death. The fair inference from this testimony is that plaintiffs know the estate had been probated, the administrator discharged, and the estate of decedent distributed before plaintiff Victor Dunn filed his petition in the probate court. It has been frequently held that the orders and decrees of a probate court determining heirship and distributing the property of the estate of a decedent are final and conclusive and may not be collaterally attacked. Calhoun v. Cracknell,202 Mich. 430; Chapin v. Chapin, 229 Mich. 515; Thompson v.Thompson, 229 Mich. 526; Raseman v. Raseman, 234 Mich. 237;Benjamin v. Fairchild, 242 Mich. 274; Driver v. UnionIndustrial Trust Savings Bank, 264 Mich. 42. We find no error in the judgment of the trial court, which is affirmed, with costs. NELSON SHARPE, NORTH, and WIEST, JJ., concurred with POTTER, C.J. FEAD, J., concurred in the result.