Ewing v. Lamphere ( 1910 )

Hooker, J.

Archibald P. McIntyre, a widower, died, leaving no issue, in May, 1900. Two brothers living in New York, a sister living in Wisconsin, and a daughter of a deceased brother were his next of kin. After McIntyre’s death, administration of his estate was commenced and the property partly distributed when a petition was filed by one Augusta Ewing for the probate of an alleged will, asserted to have been lost or suppressed. The petition was denied in probate court, and the cause was appealed to the circuit, where, after several trials, a verdict was rendered in favor of the proponent, and the cause was brought to this court by Helen Lamphere, McIntyre’s niece hereinbefore mentioned.

To prove the execution of the alleged will, the following testimony was produced: One Mrs. Yerkes, McIntyre’s housekeeper or servant, testified that she was called in to witness a will which McIntyre then and there signed in the presence of one Squire Smith, who drew it, and one John Williams, who chanced to be in the hotel at the time. She testified, further, that McIntyre took possession of the will, that he kept, his papers in a desk and tin box in his bedroom. Some hours later she found a paper in the room where the will was executed, which she laid on the table, intending to give it to McIntyre, but she overlooked it, and after his death several years later she found it among her papers. She did not read or hear the will read. John Williams testified to witnessing the will, which he heard read, and stated the substance of its provisions. A paper said to have been the one found by Mrs. Yerbes was produced, and purported to be memoranda for a will of Archibald McIntyre, and two sons of Smith, the alleged scrivener, testified with much positiveness that it was in the handwriting of their father. Mrs. Yerbes testified that one Harold McIntyre, a nephew of the deceased, who was with him during his last illness, had possession of the bey to his desb and the opportunity to abstract this will; that after the funeral the papers were taben to New Yorb by him and his uncle, Delos McIntyre. Mrs. Yerbes testified before the probate court, and shortly before the cause was to be heard on the circuit she committed suicide. It is contended by the appellant that she did this from remorse, and reluctance to repeat false testimony, and the feeling of shame that would follow a public admission of her misconduct, while the claim is made on behalf of the appellee that her act was caused by threats made to her by friends of the appellant, and her fear of prosecution and imprisonment for perjury charged to have been committed in the probate court. These claims are based upon the testimony of one or more witnesses produced by the appellee of a conversation with Mrs. Yerbes prior to her death, in which her reluctance to testify again was made manifest. This testimony seems to have been drawn out by counsel for appellant on cross-examination of proponent’s witnesses. No objection appears to have been made to it.

Attention was called by counsel to two provisions of the memoranda for the will that are said to indicate its spurious character. It may be best shown by quoting from the language of the learned circuit judge in disposing of the motion for a new trial. He said:

“ There is another feature that deserves attention, in view of the uncontradicted testimony in the case that the sister of Archibald McIntyre, living in Wisconsin, lived up to within a few weebs of the death of Archibald MeIntyre, and likewise in view of the fact that it was conclusively shown that McIntyre knew of his sister being alive the paragraph in the will reading as follows: £ I give to the grandchildren of my deceased sister in Wisconsin, $5,000 — is peculiarly significant. It is alleged that this provision was made in the fall of 1896. This was four years before this woman spoken of in this paragraph as the deceased sister died. Another peculiar paragraph in the will is the following:

‘“I give to the person who has stayed with me and managed my household affairs and oared for me for at least two years, including the entire period of my last sickness, the hotel and contents thereof.’

“In September, 1896, there was no person answering to this description. The last sickness of the contestant did not occur for nearly four years thereafter, and Mrs. Yerkes had at the time of the making of the alleged will been in the employ of the deceased but a few months. In spite of these inconsistencies, and the demonstrated character of the witnesses (Yerkes and Williams), the jury reached the conclusion that they should be believed.”

We held in the case of Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634), that it was the duty of this court to review the evidence in a cause to determine whether a ruling upon a motion for new trial upon the ground that the verdict was contrary to the weight of evidence was erroneous. We cannot escape this responsibility which was doubtless imposed by the legislature to provide relief against palpable miscarriages of justice through unjust verdicts, which all judges and lawyers know to be not uncommon. In the exercise of this power this court cannot content itself with a mere determination that there is a conflict of evidence, and that the jury is as well qualified to judge of the facts and the credibility of testimony as itself, which was the rule before, or that the trial judge has approved the verdict or even expressed his own belief that the verdict is not against the weight of evidence, and thereupon affirm the denial of a motion, but it must examine the testimony and determine for itself whether or not the verdict is so plainly against justice as to call for a new trial. That this statute may be disapproved by those who entertain the idea that the verdicts of juries are necessarily and invariably honest, candid, discriminating, and just does not affect the question. Evidently the legislature has recognized the common belief that jurors have their foibles and juries their faults which interfere with the ideal administration of justice, and has attempted to apply a remedy by enlarging the rule heretofore adopted and followed by the appellate courts. It had the power to confer such authority upon the appellate courts.

We have endeavored to make a careful and critical examination of the evidence in this case. We are satisfied that the testimony of both John Williams and Mrs. Yerkes was untruthful. It is upon the testimony of these two witnesses that the verdict must rest, for no other witness ever saw or knew anything about a will made by deceased. Mrs. Yerkes was housekeeper or servant for McIntyre. She testified that she knew him five years before his death, and was employed in his house (a hotel) about four years and six months, and that the will was made in September or October, 1896. This was before she had been there a year, yet it is claimed that the hotel and farm, said to have been worth 120,000, was bequeathed to her. We think that the memorandum introduced as evidence of the contents of the alleged will contains strong internal evidence that it is spurious. The charges made by Mrs. Yerkes against Harold McIntyre in relation to the abstraction of the alleged will and money are contradicted. These papers were taken by the next of kin, who presumptively were the proper persons to take them. There is no complaint made by any of them, and at the time the papers were taken there was no reason to suppose that the proponent and her associates had any interest in them. Indeed, it may be thought by some that the sequel has proved that a wise precaution was exercised by Harold and Delos McIntyre in keeping possession of the documents found in the desk and box. Their denial of any abstraction of a will or other paper by themselves or any one else is as credible as the statements of Mrs. Yerkes, and to'our minds much more so. Furthermore, this is a case where the learned circuit judge who tried it, although denying the new trial, has unequivocally expressed his own disbelief in the crucial testimony upon which the verdict rests, and his own nonconcurrence with the determination of the jury. His reason for denying the motion was a not unnatural reluctance to overrule the conclusions of the jury regarding the credibility of witnesses and the value of human testimony. In this he thought that he found support in the opinion of this court rendered upon a former hearing of this cause. See 141 Mich. 506 (104 N. W. 787).

Notwithstanding this, he denied the motion only upon the unprecedented condition that the appellee should file a bond in the sum of $1,000 conditioned to pay the costs of appeal should the judgment be reversed. Of the opinion in the case cited it should be said that it was before this court on an appeal by proponent from a directed verdict. Necessarily the testimony was discussed from the standpoint most favorable to the proponents, with a view merely to the determination of the propriety of taking the case from the jury, which was the only question involved. Indeed, the writer of the opinion said:

“ The sole question, therefore, under the charge, is whether there was any evidence in the casé legitimately tending to overcome the prima facie presumption of revocation arising from the nonproduction of the will.”

We are constrained, therefore, to reverse the judgment, with costs against the proponent.

A new trial is ordered.

Montgomery, C. J., and Ostrander, McAlvay, and Stone, JJ., concurred with Hooker, J.