me.

Το

"Well, you might just as well not make a will. It is better not to make a will. But, if you do make a will, the only way any one should I don't make a will is share and share alike. make any will at all."

before you did it, did you? A. I never spoke | getting old. Have you made a will?" of it to him. Q. You never told him you were which she replied, "No, I haven't made a going to do it, and you never told him you had will." And he said: done it, isn't that true? A. I never did. Q. So your uncle never knew up to the day of his death that you had those papers in the envelope in your own private safety deposit box at the Commercial Bank to which only you had access, is that right? A. I don't know that he did. Q. Well, he did not from you, did he? A. He There was also testimony of Miss Coleknew I had them; he had told me to keep them safe. I never told him, and he never had asked man, the trained nurse who came to take He gave them to me to keep safe, and he care of testator after his return from Califorknew I would do it. Q. And he handed you nia in the spring of 1913, and who continued the keys to his safe at the time, is that right? to take care of him until he died. A. I couldn't say he did them both at one time.fied to the condition of his mind much of the Q. You said at the same time. Was it not at the same time? Didn't he hand you the keys to time while in Florida. She testified, in subthe safe at the same time that he handed you stance, that about a month before testator the envelope? A. Why, it was about the same was taken to Florida, probably in October, time. Q. What do you mean by about the same time? A. Why, he took those papers from his 1913, he asked her to call Joseph Walsh on inside pocket and he handed them to me, and he the telephone, which the nurse did, and, not said, 'Keep this, lady, you may want them some being able to get Joseph Walsh, left a mesday.' Then, a few minutes after, he took and handed me the keys. He always handed me the sage, and, Robert Walsh seeming rather restkeys to the safe when I came in in the after-less, the nurse said, “Uncle, do you want to see Joe on business of importance?" And he

noon."

99

She testi

The printed record in this case contains said, "Lady, I want to make a will.” nearly 1,200 pages. We find it will be im- It appears from the record that the tespracticable to copy at great length the testator had been somewhat irritated and antimony in this immense record. We shall noyed by letters written him by one of the content ourselves with stating the substance Detroit family with reference to property of it. There was testimony pro and con as matters in which the testator and Patrick J. to the mental capacity of the testator, ex- Walsh were interested, this property being tending over a period of many years before located at Port Huron and having been in his death, which occurred in Florida on Feb-charge of the testator, who had made certain ruary 22, 1914. This question of mental improvements upon the property and had capacity was submitted to the jury in a very elaborate charge, and we shall spend no time in considering whether the question should have been submitted to the jury; and the same may be said of the question of undue influence, which question was also submitted to the jury.

The testator had, for a number of years prior to his death and prior to his going to Florida in the fall of 1913, spent his winters in California.

The duplicate of the will of 1908 retained by Robert Walsh has never been found, although due search was made.

As bearing upon the subject of revocation of the will in question, the contestants produced testimony of statements made from time to time by the testator. Among others, it was testified to by contestant Robert Flattery that, in 1909, when Mr. Flattery and his wife were visiting the testator, Mr. Flattery had said to his uncle:

"Uncle, on these trips out to California, if anything should happen to you, have you got your things fixed-got a will fixed?"

To which the testator had replied: "Will, be 'dang! Everything will be share and share alike," but says, "I do want $5,000 for Father McManus."

retained the rents to reimburse himself; and this niece Ellen Grace Walsh Kennedy had written him letters, and it is claimed that he expressed a determination to cut her out, or cut her off from sharing in any portion of his estate.

Much time was spent in the examination and cross-examination of Miss Coleman as to whether he said he desired or wanted to "make a will," or to "change a will"; the witness Miss Coleman being of the opinion that he said he wanted to "make a will." This witness also testified that about three weeks before his death he said that, if it had not been for the trouble "that one" made for him, they would all fare alike; and the witness inferred that the term "that one" referred to Grace Kennedy.

On the part of the proponents, there was much testimony tending to show his affection for, and the deep interest which he took in, the Port Huron branch of the family, called sometimes the "favored ones" in this record; and there are many letters to different members of this family, and especially to Nan Walsh, who seems to have been his confidential clerk during a large portion of the years covered by the testimony, expressing the interest which he took in the family, and con

This testimony is corroborated by that of taining many inquiries regarding their welMrs. Flattery.

There was also testimony that in 1909, when Mrs. Mary A. Walsh, the widow of Patrick J. Walsh of Detroit, accompanied by her three daughters, came to Port Huron to see him, he said to her: "Mary, you are

fare. There was also testimony tending to show that he was desirous of having different members of this family, especially the young women, take an interest in the business and property which he owned at Port Huron, saying that it would be theirs some day, and

that he wanted them to learn how to care for it.

(3) Failure to call Jean Down, one of the subscribing witnesses.

Contestants maintained in the court below that the testimony offered by the proponents Aside from the testimony on behalf of the to overcome said presumption was not, as contestants, above referred to, there was noth-matter of law, sufficient to overcome the ing in the conduct of the testator, from the same, or to bring proponents within any of time he made what may be termed the "At- the exceptions to the rule. kinson will," in January, 1899, down to the time of his death, to show that he had in any way changed in his feelings toward or interest in the proponents, and the other members of the Port Huron Walsh family. This conduct covers many years prior to the death of the testator, and we think is significant as showing the state of mind of the testator and his determined purpose to provide liberally for them.

We shall now proceed to consider some of the questions raised, and rulings of the court upon the trial of the case at the circuit. There are 358 assignments of error, and it would be interminable for us to consider these assignments separately. We shall endeavor to dispose of them as we proceed with the case.

The first question which we shall consider, being raised by an assignment of error, is the claim:

(1) That the court erred in refusing to permit all of the contestants to have more than four peremptory challenges upon the impaneling of the jury.

This witness had been examined upon the hearing in the probate court. It appeared that she resided out of the state of Michigan, and in Chicago. Proponents offered to read her testimony, taken in probate court, which had been extended and its correctness testified to by the stenographer. This offer being objected to by the contestants, the same was withdrawn. It is claimed that this failure to call this witness was reversible error.

(4) Upon the trial there was testimony relating to certain conduct and statements of Joseph Walsh, proponent, at the home of his uncle Patrick J. Walsh just prior to the latter's death, and shortly before the making of what is termed the Atkinson will. This evidence was admitted, but the court limited its use merely for the purpose of testing the credibility of Joseph Walsh, but denied its use as substantive evidence, and in its charge to the jury so limited the use of such testimony, and instructed the jury that the statements could not be used as proof that undue

The following request was proffered by contestants and refused by the court:

While it may be somewhat doubtful wheth-influence was exercised by Joseph Walsh. er the question is properly before us, the court having simply stated what it would do were a further peremptory challenge made, yet we are disposed to treat the matter upon its merits. All are familiar with the statute which provides that each party may challenge peremptorily four jurors. In this case, all the contestants filed the same objections and appeared by the same counsel in the probate court. All of the contestants signed the same claim of appeal. One bond was filed signed by all. In the circuit court, four sets of attorneys claimed to represent different

contestants.

(2) At the close of the testimony, the court denied a motion on behalf of the contestants for the direction of a verdict upon the grounds stated in the following request:

and testament of Robert Walsh was executed in

"If you find that Joseph Walsh, on the Friday before Patrick J. Walsh's death, went to Patwith him with reference to an attempt upon the rick J. Walsh's house and had a controversy part of Joseph Walsh to have Patrick J. Walsh deed to the Port Huron Walshes certain property in Detroit which Patrick Walsh refused to ened to get even, then you must consider whethdo, and if you find that Joseph Walsh threater or not Joseph' Walsh did endeavor to get even, and whether through his influence, and the influence of others, the Atkinson will was made in the following month, whereby the Detroit Walshes were left but $1,000 each and the great bulk of the estate left to the Port Huron Walshes."

Error is assigned upon this refusal.

(5) It appeared in evidence that the testator's wife procured a divorce from him in 1885; that the case was appealed to this court and the decision handed down in June, 1886. It also appeared that the record in that case contained a large number of letters which had been written by the testator to his wife before and pending that litigation. Those letters are referred to in the opinion in Walsh v. Walsh, 61 Mich. 554, 28 N. W. 718, where the writer of the opinion said:

"The evidence in this case shows undisputedly that the instrument alleged to be the last will duplicate. I charge you that both duplicates constitute but one will, and that the destruction of the one by Robert Walsh with intent to revoke such will would, in the eyes of the law. be considered as a destruction of both duplicates, and that under the evidence the duplicate which appears to have been last in his possession, custody, and control, not having been produced, or its absence accounted for, the presumption is that Robert Walsh destroyed the same with "They (Walsh's letters) are such as no man, the intention of revoking it; inasmuch as the in any rank of life, could write to his wife, in two duplicates constitute but one will, that his right senses, unless he was brutal and beastsame presumption would apply to the duplicately in his nature. of the alleged will produced, and your verdict must therefore be in favor of the contestants and against the admission to probate of said duplicate."

* *They are, indeed, more like the crazy ebullitions of an insane man than they are the production of any reasonable, decent human mind."

These letters were offered in evidence for

Error is assigned upon the refusal to give the purpose of showing the mental state or

they were written. Those letters cover a period running from 1879 to 1883. The letters, upon objection, were excluded by the court, as was also the opinion of this court in that case, to all of which exception was duly taken.

(6) Objection was made, and overruled, to certain testimony of Frank C. Wellman, cashier of the St. Clair County Savings Bank, as to the mental competency of the testator. The following questions were asked:

"Q. From your observation of Mr. Walsh from the time he opened the account in 1902 up to two years before his death, what is your opinion of his mental capacity to transact business? (This question was objected to, the objection overruled, and an exception taken, and the witness answered:) I should judge that he was competent to transact any business that he desired. Q. Now, was Mr. Walsh, in your opinion, during the time he was making these deposits and doing the business in your bank, in a mental and physical condition to transact business requiring an exercise of judgment and the reasoning faculties and consecutive thought on his part? (Objection and exception.) A. In my opinion he was."

It is claimed this was error.

(7) Questions to expert witnesses Drs. Babcock and Kennedy.

In the cross-examination of Dr. Babcock, the following occurred:

Subsequently, after the witness Dr. Babcock had given his testimony, the court stated that it would permit an answer to the question:

"Would you say that a person suffering from senile dementia would have sufficient memory to recall the several persons who might or ought to be the fitting objects of his bounty, and sufficient understanding to comprehend his relationship to them, their relationship to him, and their claims upon him?"

Upon the close of the examination, that question was put to the witness Babcock, and the answer was: "I should say not in all instances."

Similar questions put to the witness Dr. Kennedy received similar rulings. These witnesses were examined at great length, as appears by the record. Error is assigned upon these rulings.

(8) Requests of contestants Flattery to charge. The fifteenth request to charge reads as follows:

"The jury may consider the nature and character of the will, and, if it be contrary to natural justice, this, with the other facts of the case, may be considered by the jury in the determination of the question whether or not the testator was of sound mind."

This request was refused, and error is as

signed upon the refusal.

The twenty-ninth request was as follows: "The jury is instructed that, while a man is not to be regarded as of unsound mind simply because the provisions of his will are unjust, yet the jury have a right to take into consideration the provisions of his will; and if they find them to be unjust, in view of the claims that his relatives rightly had upon his bounty, the jury have a right to consider this fact, in connection with all the other circumstances of the case, in determining whether or not Robert Walsh had sufficient mental capacity to make this will."

This request was also refused, and error is assigned upon it.

The twenty-sixth request to charge reads as follows:

"Q. Assuming that to make the will in question the jury must be satisfied that Robert Walsh at the time of making this will in May, 1908, which discriminates among his relatives, that not only he had sufficient memory to recall the several persons who might or ought to be the fitting objects of his bounty, but sufficient understanding to comprehend his relationship to them, their relationship to him, and their claims upon him, that that is the law, would you say that a person suffering from senile dementia has that sufficient memory? Mr. Avery: I object to that question as invading the province of the jury. (Objections sustained. Exception.) Mr. Selling: Your honor gives me the exception if it is on the legal proposition as to our right to put a question of that sort, I would like to be heard, if the court please. The "Men may have mental capacity to compreCourt: No, it is the form of the question. Q.hend a few simple details, but when an estate is The will in question here, Doctor, is known as large, requiring the remembrance of many facts what is a discriminatory will; he leaves differ- and the comprehension of many details, and the ent sums to different relatives who are in the disposition to be made is complicated, and there same degree of relationship both as nephews and is a great discrimination between relatives of nieces and as grandnephews and grandnieces. the same degree, it requires greater mental caAssuming that to make such a will a person pacity than simply to make a will, leaving to must have sufficient memory to recall the sev- all relatives of the same relationship his properal persons who might or ought to be the fit- erty, share and share alike; and you must, in ting objects of his bounty, and sufficient under- determining mental capacity, determine whether standing to comprehend his relationship to Robert Walsh had sufficient mind and memory them, their relationship to him, and their claims to make the discriminatory will now offered here upon him, would you say that a person suffer- for probate." ing from senile dementia had that mental competency? (Objected to, objection sustained, and exception.) Q. Would you say that a person suffering from senile dementia would have sufficient memory to recall the several persons who might or ought to be the fitting objects of his bounty, and sufficient understanding to comprehend his relationship to them, their relationship to him, and their claims upon him? Mr. Avery: The same objection. (Objection sustained. Exception.) Q. What can you say in general as to the ability of a person suffering with senile dementia to make a discriminatory will; that is, a will treating persons in the same degree of relationship in a different manner and with different bequests in amount and nature? (Same objection, ruling, and exception.)"

Also, the twenty-seventh request:

"It is claimed by the contestants in this case that. Robert Walsh, at the time of the making of the instrument presented for allowance here,. was suffering from senile dementia, a condition of the mind due very often to the hardening of the arteries leading to the brain, often found in persons of advanced years who have led sedentary lives and who have had a great deal of mental stress or worry. Unless those offering the will for probate convince you by a fat preponderance of the evidence that Robert Walsh did not have senile dementia, or that the discriminations in his will were not due thereto, then you must find against the will in question."

None of the foregoing was given in the lan- | trine was approved in a later case, in a will guage stated, and error is assigned thereon. The contestants Emma Keith and others assign error upon the following portion of the charge:

"Now, if this duplicate copy was destroyed by Robert Walsh before he handed the other duplicate copy to Miss Nan Walsh, there can be no conclusive presumption that he destroyed it with intent to revoke it, and under those circumstances the destruction of the duplicate copy by Robert Walsh, before the time he handed the other duplicate copy here produced to Miss Nan Walsh, does not necessarily invalidate the duplicate copy here produced.

"In other words, if Robert Walsh destroyed one of the duplicate copies of the paper, while he had both in his possession, and then afterwards handed the remaining duplicate copy to Miss Nan Walsh with instructions to her to keep it, these facts taken together raise no conclusive presumption that he destroyed the duplicate with intent to revoke the instrument, and if you so find from all the testimony, facts, and circumstances, then you would be justified in finding that Robert Walsh, by the destruction of one of the duplicate copies, did not intend to revoke the instrument he had executed, and that the instrument here offered is the last will and testament of Robert Walsh, deceased." Also the following:

"On the other hand, if you find from all the testimony, facts, and circumstances, that Robert Walsh retained in his possession one of the duplicate papers after he had given one of them into the possession of Miss Nan Walsh, the nonproduction of this duplicate instrument so retained by him raises a presumption that, not only Robert Walsh destroyed this duplicate instrument, but also that he destroyed it with intent to revoke the will which he had so executed in duplicate, and if you so find you will return a verdict that the purported will here offered is not the last will and testament of Robert Walsh, deceased."

The court added the following:

"However, if at any time, either before or after the delivery of the duplicate copy of the paper to Miss Nan Walsh, Robert Walsh destroyed one of the duplicate copies of the instrument with intent to revoke it, that act would constitute a revocation of the instrument and defeat the will."

The question whether the verdict was contrary to the weight of the evidence is not before us, and will not be considered; the record failing to show any motion for a new trial.

We shall consider the subjects in the order in which they have been stated.

1. Number of challenges allowed contestants.

contest, where an attempt was made to have separate challenges for the separate contestants. The lower court denied this claim, and Justice Cooley, in affirming this decision, said:

v. Hinchman, 37 Mich, 490, and requires no dis"The ruling was within the decision of Stroh cussion." Fraser v. Jennison, 42 Mich. at page 211, 3 N. W. at page 884.

Contestants cite the case of Yonkus v. McKay, 186 Mich. 203, 152 N. W. 1031. In that case, it appeared that different judgments might be entered. This court said:

"All of the defendants are not liable to the same extent, or for the same reason, or in the same manner."

Therefore it was held that separate challenges were proper. We think the case readily distinguishable from the instant case, and that the court did not err in this ruling. [2] 2. Revocation. This presents the principal question in the case in our judgment. The question here presented, when applied to a duplicate will, is a most interesting one and appears to be a new question in this state. Does the same rule apply as in the case of a single will? Counsel for proponents concede that in case of a single will which has been traced to testator's possession, and is missing at his death, the law raises a presumption that he destroyed it, and that he did so with intent to revoke it. The authorities upon the subject are not numerous, but they all seem to be to the effect that the same rule applies in the case of a duplicate will.

In 1 Jarman on Wills (6th Ed.) at star page 123, that author says:

"Sometimes a testator for greater security executes his will in duplicate, retaining one part, and committing the other to the custody tee); and questions have not unfrequently arisen of another person (usually an executor or trusas to the effect of his subsequently destroying one of such papers, leaving the duplicate entire. In these cases, the presumption generally is that the testator means by the destruction of one part to revoke the will, but the strength of the presumption depends much upon circumstances." See, also, Thornton on Lost Wills, § 68. But this presumption of revocation may be rebutted, the same as in other cases. While there is much force in the argument that the reason why a will is made in duplicate is that if one becomes lost, mislaid, or destroy

fect, yet the uniform rule seems to be as above stated.

[1] It should be borne in mind that the is-ed, the other will be found and put into efsue here was, will or no will. No matter how many different persons appeal in a will case, they can only raise one issue, and there can be but one trial of that issue, which is to determine the question of will or no will. The rule seems to be that where the issue was

a single one, and where there could be but one verdict, it was as though there was but one party before the court; but where there were different issues and different parties, and there could be different judgments against the various parties, that the rule is different. Stroh v. Hinchman, 37 Mich. 490. This doc

The last expression of this court upon the subject of lost wills is In re Keene's Estate, 189 Mich. 97, 155 N. W. 514. There Justice Kuhn said:

where a will cannot be found at the death of the "It is without question the rule of law that, testator 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 revothat this presumption of revocation can be met canda. But it is also established in this state by declarations of the testator. It was said in