Smith v. Dettling

Black, J. (after stating the facts). We cannot agree that the testimony of contestant and her hus [339] band conclusively established that the instrument was not executed and attested properly. Their sworn testimony is opposed by a presumption courts must uphold for jury consideration in cases like this and it is opposed by that which the jury had a right to find was attested on the occasion in question. Fairness to the trial judge requires note that he was called upon to decide this motion for judgment notwithstanding verdict prior to handing down of our decision in In re Dalton Estate, 346 Mich 613. Dalton, unaided as here by a formal attestation clause, premonished generally what is to follow in this opinion, that is to say, the probate of a will cannot be made to depend on the recollection or the veracity of a subscribing witness or witnesses (Abbott v. Abbott, 41 Mich 540, 542). Here the jury had a right to find that contestant -and her husband duly certified, on the occasion of signature, that the instrument in contest was attested and executed by each in the decedent’s presence and in the presence of each other. It had a right to find the contrary from the testimony each .gave later, if its members believed such testimony. Which version, one being consistent with testacy and the other not, was the trial judge obligated to accept when he was moved for summary jury instruction? The answer is that he was required to make no choice and that the signed attestation clause ■arrayed against the opposing testimony of these interested witnesses combined in presenting a question for jury determination. Our conclusion, so announced, is in accord with the clear weight of intelligently reasoned authority. Any other rule would, as observed in Abbott, open the best of wills to defeat by fraud. Page (2 Page On Wills [Lifetime ed], § 758, pp 471-473) puts it this way: [340] “Even where a subscribing witness denies the existence of certain facts necessary for the legal execution of the will, the presumption of regularity may prevail over such direct evidence. The subscribing witness, by acting as such, in effect formally declares that all the facts necessary to the legal execution of the will exist, and in advance, by acting as a subscribing witness, he has seriously discredited his subsequent denial of these facts under oath. It is, therefore, quite possible that the presumption that the necessary acts have been performed is not overcome by the adverse testimony of one or more of the subscribing witnesses, and a will may be admitted to probate although one or more of the subscribing witnesses testify adversely thereto. The testimony of the subscribing witnesses which denies the performance of one or more of the facts which are necessary to the validity of the will is, at best, to be received with caution, and to be viewed with suspicion.” To same effect see 57 Am Jur, Wills, § 909, p 599, and the annotator’s summary on page 1233 of annotation headed “Weight and effect of presumption or inference of due execution of will,” 40 ALR2d 1223. The summary reads: “§ 9. — Where attesting witnesses deny due execution. “Where the view is taken that the presumption of due execution of a will to which proof of attestation gives rise is a presumption ‘of fact’ (and, also, in at least some instances, in cases in which the presumption ‘of law’ approach is espoused) the courts have generally recognized that the presumption is of sufficient weight that testimony of the attesting-witnesses to the will to the effect that it was not duly executed is not enough, ipso facto, to overcome the presumption.” [341] We especially commend the Missouri supreme court’s declaration of this rule as shown in the annotated case (Burkland v. Starry, 361 Mo 348, 355 [234 SW2d 608, 611, 40 ALR2d 1217,1221]), viz., “We think that the ‘presumption’ of due execution arising from an attesting clause or subscription is, at least, a permissible inference of fact — a reasonable and logical inference which may or may not be drawn (or a fact which may or may not be found) by the triers of fact (the jury) from the established facts of the witnesses’ signatures subscribed to the testamentary document, below the signature of the testator. And, as we said in German Evangelical Bethel Church of Concordia v. Reith, 327 Mo 1098 (39 SW2d 1057, 76 ALR 604), this inference or ‘presumption’ remains in the case not only because proponents are not bound by the adverse testimony of witnesses they are required to call, but because this inference or ‘presumption’ is ‘presumptive evidencer of the fact of due execution.” (All italics by Missouri supreme court.) But it is said that the presumption of due execution and attestation in this case is met by positive evidence to the contrary and, according to Michigan’s general rule, that the presumption “cannot be weighed against the evidence.” The answer (for the-present case) is that this is another presumption which survives to fail or prevail, in the jury room, against that which has been sworn in opposition thereto by interested witnesses (see discussion of variant effect of presumptions in Cebulak v. Lewis, 320 Mich 710, 723, 724 (5 ALR2d 186), and that part of the annotator’s brief headed “View that presumption is one ‘of fact,’ ” 40 ALR2d 1223, at page-1226). [342] Reversed and remanded for entry of judgment ■on the general and special verdicts. Costs to proponent. Kelly, Smith, Edwards, Voelker, and Kavanagh, .JJ., concurred with Black, J. Dethmers, C. J., and Carr, J., concurred in the .result.