Billiet v. Ver Vaecke

Bird, J. This is a will contest. Louise Billiet, who was testator’s housekeeper, is proponent. The children of deceased are contestants. The questions of mental incompetency and undue influence were both submitted to the jury and they found against the will. These issues were tried out on a former occasion in Wayne county with a like result. This court reversed it because the verdict was against the weight of the evidence (214 Mich. 281). The same questions are again involved in this appeal, although a different record is presented. The deceased was a Belgian by birth. He came to this country in 1892 with his eight children. He engaged in truck farming in the suburbs of Detroit. He was without education but was intelligent, industrious and saving. The wife took care of the business end until 1909, when she died. The oldest boy, Henry, succeeded his mother in transacting his — 421 — father’s business until the year 1913, when the deceased revoked the power of attorney to Henry and took his business matters into his own hands. During several years the savings had been invested in Detroit real estate. In 1913 he had six houses which he rented. When the deceased revoked Henry’s power of attorney, Henry, for a time, refused to surrender his papers. Later he did so and then made an application to the probate court for the appointment of a guardian for his father. The deceased did not appear and a guardian was appointed. Later the deceased filed a motion,.by counsel, to re-open the proceeding. This motion was granted, and after hearing the testimony of the deceased the guardianship proceedings were dismissed by the probate court. All of his children were present in court to testify against him. After the death of his wife the testator lived for a time with some of his children. Afterwards he lived with strangers for a time. After the attempt to place a guardian over him he drifted away from his children. Finally he began housekeeping in one of his own houses and, in September, 1913, installed as housekeeper therein Miss Louise Billiet, a Belgian woman, who came to this country in 1912. She was about 40 years of age and was an aunt of his deceased wife. She kept testator’s house and aided him in his business for nearly five years before his death. In April, 1914, a few: months after the guardianship proceedings were dismissed, he went to Mr. Powell, a reputable attorney, of Detroit, and had him draft a will for him, in which he gave the bulk of his estate to proponent. In June, 1917, he made the present will. This will is as follows: “I, Matheus VerVaecke, of the city of Detroit, coun — 422 — ty of Wayne and State of Michigan, do hereby make, publish and declare this my last will and testament, in manner and form following: “First. I direct that all my just debts and funeral expenses be paid as soon after my decease as conveniently can be done. “Second. I give, devise and bequeath to my housekeeper, Louise Billiet, all my household furniture and the following described real estate situated and being in the city of Detroit, county of Wayne and State of Michigan, to wit: “Lot numbered six (6) of Everding’s subdivision of lot A of the subdivision of lots twenty-two (22) and twenty-three (23) of private claim 723 as recorded in liber 13 of plats at page 53, Wayne county records, also, “Lot numbered seven (7) of Everding’s subdivision of lot A of the subdivision of lots twenty-two (22) and twenty-three (23) of private claim 723, according to the recorded plat thereof in liber 13 of plats on page 53, Wayne county registry; also, “All those pieces or parcels of land situate and being in the city of Detroit, county of Wayne and State of Michigan, and described as follows, to-wit: Lots numbered fifty (50) and fifty-one (51) of Barnart and Fisher’s subdivision of lots twenty-two (22) and twenty-three (23) of the subdivision of the west part of private claim 723, according to the plat of said subdivision recorded in the register of deeds’ office for said Wayne county, in liber 10 of plats on page 27. “Third. I give, devise and bequeath one-eighth (Vs) part of the remainder of my estate to the children of my deceased daughter, Pharilde Warnez, share and share alike. “Fourth. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed wheresoever situated of which I may die seized, or possessed, or to which I may be entitled at the time of my death, to my seven children Camille VerVaecke, Emile VerVaecke, Emma Warnez, Henry VerVaecke, Rene VerVaecke, August VerVaecke, and Adele Cools, share and share alike. “Fifth. I will that the expense of my last illness and funeral expenses shall be paid from the property — 423 — devised to said Louise Billiet, and I hereby authorize my executor hereinafter named to mortgage or sell so much of said property mentioned in paragraph two, as may be necessary to defray such expenses. “Sixth. I will that ten (10) dollars shall also loe taken out of the devise herein made to Louise Billiet for masses for the repose of the soul of my deceased wife and myself. “Seventh. I nominate, constitute and appoint Henry Huvoere of Grosse Pointe Park, Wayne county, Michigan, executor of this my last will and testament. “Eighth. I hereby revoke all former wills and testamentary dispositions by me heretofore made. “In witness whereof, I, the said Matheus VerVaecke, have hereunto subscribed my name this 20th day of June in the year of our Lord one thousand nine hundred and seventeen. “Matheus VerVaecke (L. S.)” The inventory filed in probate court by Henry in July, 1913, showed the estate to be worth between $13,000 and $14,000. Mental Incompetency. In April, 1914, a few months after the guardianship proceedings had been dismissed, the testator went to Mr. Powell and requested him to prepare his will. At testator’s request, Mr. Huvoere, an old friend and one of his countrymen, who understood and spoke better English than he, accompanied him. Testator directed Mr. Powell how he wanted to distribute his real estate, without aid or suggestion from anyone, and furnished him the specific descriptions of the several parcels which he owned. The 1917, or present will, divided the property in the same proportions that the 1914 did. The only change that was made in the will of 1917 was with reference to property which he had given to a daughter, who was since deceased. In view of this, we may conclude that he made the division of property between proponent and his children in 1914. At that date was he mentally in — 424 — competent? There is no proof that testator was mentally incompetent to make the 1914 will. No one of his seven children testified that he was mentally incompetent to execute it. Nor did any of them testify that he was mentally incompetent to execute the 1917 will. They did testify to things he had said and done about the year 1917 and later, but these consisted of instances of forgetfulness and growing physical infirmity which overtakes the average man as he enters the zone of old age. And, indeed, they were not well qualified to speak of his condition, as none of them visited him but a few times in the five years following the guardianship proceedings. It is urged that the testimony of Henry VanSlembrouck, an old friend, is evidence of mental incompetency because he refused to make the 1914 will, on the ground that he did not think testator knew what he was doing. The testator went to VanSlembrouck soon after the probate court discharged his guardian, and requested him to draw the will, because he spoke the same language and could understand him. After the testator had told him what division of his property he wanted to make VanSlembrouck objected to drawing the will because it would be too complicated, and advised him he had better see an attorney. VanSlembrouck was acquainted with the whole family and, doubtless, his real reason was that he was afraid that such a will would create trouble in the family. VanSlembrouck did not testify that testator was incompetent, or that he was unduly influenced, neither did he testify to any facts from which either condition could be inferred by the jury. The following bit of testimony will show why he did not care to prepare the will: “Q. Will you tell me whether he stated how much or what he wanted to give his housekeeper? “A. Well, as far as he went, the plain statement — 425 — that he made to me at that ’time that he wanted to provide her with a roof over her head when he was dead. He said it in Flemish. “Q. And what did you say to him? “A. Well, I told him, after we talked the matter over, that in view of the fact that it would be complicated, and, in addition thereto, the way he explained it, that he wanted to take so much away from his children, I told him I did not care to draw up the will. I says: Tt is something out of the ordinary and for that reason I would not want to do it.’ I says: ‘You had better consult some .attorney who may not be so intimately acquainted with you as I am, and with the children.’ ” This witness had known the testator for many years and had done business for him, and during his later life had lived near him, and it is to be assumed, as he was a witness for contestants, that, had he regarded the testator as incompetent to make the will in question, he would have said so. On the other hand lawyers with whom testator had done business, Dr. Hart who had treated him, numerous tenants who had rented his houses, several neighbors who saw him daily, and many business and social friends testified that he was a smart and industrious old gentleman. That he had some difficulty in transacting business because he spoke and understood English so imperfectly. Many of these witnesses explained how he had gone ahead after 1913 and improved his properties. When a man goes to an attorney, and, without aid or suggestion, directs the provisions of his will, and furnishes specific descriptions of all the property he owns, it is a waste of time to discuss the question as to whether he was mentally competent to dispose of his property as he did. In re Dowell’s Estate, 3.52 Mich. 194. In this case it was said: “It is said error was committed in refusing to — 426 — submit the case to the jury on either the theory of undue influence or want of mental capacity. The testimony is undisputed that Mr. Dowell went to the scrivener alone and gave him directions as to what he wanted done. He also went alone and got an old acquaintance of his to go to the scrivener to act as a witness. We have had occasion recently to discuss the question of testamentary capacity and the question of undue influence in Leffingwell v. Bettinghouse, 151 Mich. 513. It is not necessary to repeat here what was said in that case. We shall content ourselves by saying there was nothing to show want of testamentary capacity, nor was there anything to show undue influence.” See, also, Spratt v. Spratt, 76 Mich. 384; In re Walz’s Estate, 215 Mich. 118. And especially is this rule true if, before and afterward, the tesbator actually looks after and manages his business matters, and the estate increases in value under his management. From 1913 to 1917 he improved his houses, built new ones, constructed cellars, sewers and cement sidewalks, and, as a result of this, his monthly rentals increased from $97 in 1913 to $325 a month after the changes and improvements were made. When the testator was nearing his end he was asked if he desired to make any changes in his will and he expressed himself as being satisfied with it the way it was. We think there was no competent proof to submit to the jury on this question. Undue Influence. The question of undue influence centers around the acts and conduct of the proponent. The suspicion is overworked that because proponent had an opportunity to overcome the will of testator with reference to his property matters that she did so. Opportunity alone is not sufficient to raise an inference of this character. In re Williams’ Estate, 185 Mich. 97; In re Fay’s Estate, 197 Mich. 675; Blachman v. Andrews, 150 Mich. 322; In re Carlson’s Estate, 218 Mich. 262. The case is bald of any testimony that testator was — 427 — unduly influenced to give proponent the bulk of his property before he made the will of 1914. Attempts were made by the children to show that she was unfriendly to them and that she did not want them to visit their father, but no one testified to any word or conduct directly from her which would tend to support this claim. Some of the children testified that their father said proponent did not want them to come to the house, but this was not until long after the 1914 will was made. There is no proof that she knew what the provisions of the will were, or that she ever tried to influence him to give her the property, either before the 1914 will was made, or at any other time. Proponent says she went to work as a clerk in a store where testator bought tobacco, etc.; that she used to talk with him when he came in; that testator spoke to her on several occasions about keeping house for him. Finally he said to her that his income at that time was so small he could not pay her large wages but if she would come and keep his house and help him with his business matters he would take good care of her after he was dead. To this she finally consented and went to work for him. The record shows she was faithful to her trust. She not only kept testator’s house, but assisted him in improving his properties. She worked with testator, shingling a roof. She helped him dig a cellar and a sewer, she cleaned and renovated the houses when they were vacated, and when the testator grew weaker at the last she looked after the furnace fires. That testator appreciated his home and proponent’s interest and help in his work is evidenced by numerous expressions to his friends. The testator made many complaints because his children attempted to put a guardian over him. This act appeared to embitter him and this condition of — 428 — mind seemed to increase because they did not visit him. He advised one friend to have no more children, as they would only bring him trouble. The 1914 will was made in April, only a few months after the guardianship proceedings were dismissed, and while he was yet smarting under its sting. At this time proponent had been with him only a few months. It would be difficult for one to read the record without being persuaded that testator deprived his children of the bulk of his property because of their attempt to put a guardian over him. The inference is equally strong that he gave it to proponent because she was making a home for him, helping to make life pleasant for him, and helping to increase his income, and there is no proof that she secured it by unfair means. The whole record is persuasive that this is another instance, not uncommon in these days, of children reaching for the estate of the parents before they have finished with it. If, by reason of their greed and anxiety, the contestants were led to force matters so fast that it angered their father, and thereby they have lost what otherwise would have been theirs, they have no one to blame but themselves. It is not difficult to understand why two juries have taken the position they have in a case of this kind. But it must be remembered that it is not the business or duty of courts and juries to make wills for people. Even though it be conceded that testator’s division of his. property was an unwise one, we have no right to interfere if it were done by him freely, and he was mentally competent when he did it. The judgment for contestants must be set aside and one entered in the circuit court sustaining the will. Wiest, C. J., and Fellows, McDonald, Clark, and Steere, JJ., concurred with Bird, J. Moore, J., did not sit.