Andrews v. Lavery

Grant, J.

(after stating the facts). 1. The record in this case was made by a copy of the stenographer’s minutes of the testimony taken in open court, including all the colloquies between counsel and the court, and attaching to it the certificate of the judge. Such testimony makes a record of more than 200 pages. The issues in *31 volved require an examination of all the testimony. A record thus made up for a chancery appeal to this court is very easy for counsel and the trial court, but it imposes a needless amount of labor upon the appellate court. The statute (3 Comp. Laws, § 10188) provides for settling a case—

“ Setting forth in substance all the evidence taken or read at the hearing, following as far as practicable the making of cases for review at law before the judge who tried the same, at such time and in such manner as is now provided by rule for the settlement of bills of exceptions in cases at law.”

Following this statute, this record could easily have been condensed into one-third its present size with a saving of labor to the appellate court and expense to litigants. This practice in making up records is to be condemned. There is no occasion for making up a record of questions and answers except where, in the opinion of the trial court, it is essential for a proper understanding of the evidence, and to show the manner of eliciting the testimony.

2. As above stated, we assume that the trial court held that the complainant had failed to establish a case of incompetency iu Mr. Cole to execute the transfer of the policy. He took the policy of insurance to his attorney, Mr. Shepard, who is the solicitor for the defendants in this case and their witness also, and told him what he wanted to do. According to this witness, he desired to make the change because he did not want the money to “go into> the control of the Kelleys and her.” The witness testified that Mr. Cole further said that, “He didn’t want them (the Kelleys) to have any of it, neither did his wife.” He seemed to understand and fully comprehend what he was doing. Without extending the evidence, we are constrained to hold that Mr. Cole was not at that time incompetent to execute the paper.

3. The question of undue influence rests upon a different basis. We said in Rivard v. Rivard, 109 Mich. 98 ( 66 N. W. 681 , 63 Am. St. Rep. 566 ):

*32 “ Undue influence is not exercised openly. Like crime, it seeks secrecy in which to accomplish its poisonous work. It is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.”

Tested by this rule, it is quite apparent that some influence must have induced Mr. Cole not to leave his wife, who was then confined in an insane asylum, a dollar of his property for her support. His only child was married, and, so far as this record shows, to one who was able, and whose duty it was, to support her and who was supporting her. Mr. Cole was under no legal obligation to her. He was under both a legal and moral obligation to provide for his wife. He, however, attempted, not only to deprive her of any interest in his property, but also to impose upon her small estate the cost of her support in the hospitals and asylums, an expense which the law imposed upon him. Such conduct is unnatural. Mr. Cole, then about 58 years of age, was enfeebled by long continued and severe disease. His legs were swollen by the malady from which he was suffering. He was away from the influence of his wife. His constant companions were his daughter and her husband. He died a little over a month after the change in the policy was made. The relations between him and his wife had always been pleasant. There is no evidence of any unkind words or ill feeling between them. Under these circumstances, clearly some improper influence must have operated on him. No other influence can be suggested than that of his daughter or her husband, or both, who had the opportunity to influence him to take the action he did. If such a case were submitted to a jury, and they should find a verdict of undue influence, the courts would not set it aside. Whether the circuit judge so found or not we do not know. We think the circumstances are sufficient to justify a finding of undue influence, and we so hold.

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4. The antenuptial agreement, though resting in parol, was valid, having been executed by Mr. Cole, and his wife having tendered him the execution upon her part. Phillips v. Phillips, 83 Mich. 259 ( 47 N. W. 110 ). In that case the agreement rested in parol, the husband agreeing to convey to his wife by deed a piece of land, she agreeing to give him back a life lease. He executed the deed to her. She, contrary to the case now before us, refused to execute the contract. He then filed a bill to set aside the deed. The court affirmed the transaction, refused to set aside the deed, and compelled her to execute the life lease. See, also, Manke v. Manke, 75 Mich. 435 ( 42 N. W. 958 ); Houghton v. Houghton, 14 Ind. 505 ( 77 Am. Dec. 69 ). The excuse given by him that he declined to accept the will because of her supposed mental condition, and because he did not want the property to go to her relatives, is not valid. When he made the contract, he knew that, if executed, the policy passed irrevocably to her, and that, if she performed her part by executing the will, his death before hers would cause a lapse of the legacy. Rood on Wills, § 668. She had never refused to execute a will, had always expressed a willingness to do so, but had delayed doing it. When she offered to execute it, she had not been found to be insane by anyone, and had not even been sent to the hospital in Bay City for treatment. There is no evidence of her incompetency to make a will. On the contrary, there was probative evidence that she was competent. Mr. Lavery testified:

“Q. When did you first notice anything peculiar on her part that looked as though she were crazy ?

“A. That was a short few days possibly before the doctors examined her.”

Not only by virtue of her marriage, but by virtue of his guardianship, Mr. Cole occupied the position of a most sacred trust towards his wife. It did not lie in his mouth *34 or power to annul a contract executed by him, and ready to be executed by her, by which he had agreed to transfer to her the policy in question.

The decree is affirmed, with costs.

Blair, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.