An instrument dated July 30, 1940, purporting to be the last will and testament of Frank Frazee, deceased, was offered and admitted as such by the probate court of Kent county. On appeal by contestants and trial by jury in the circuit court, the will was again allowed. Contestants have appealed.
The validity of the will is attacked on the grounds that the testator was mentally incompetent, and in the making of the alleged will was subjected to fraud, coercion and undue influence, and further that the will, which proponent asserts was executed by the testator placing his mark thereon, was in fact and law not validly executed by him.
Among other errors alleged by appellants is the following, as stated in their brief:
"The trial court erred in instructing the jury that the burden of proof was on the contestants, *Page 166 and in refusing to instruct the jury as requested by the contestants, that the burden of proof was on the proponent to show lawful execution of the purported will, but upon the contestants to show lack of testamentary capacity or the exertion of fraud or undue influence."
Contestants submitted the following request to charge:
"In this case the burden of proof is on Sophia Dornbos, the proponent, to show by the preponderance of the evidence that Frank Frazee placed his mark on the purported will; that he expressly directed Rel K. Branch to write the name `Frank Frazee' on that document, and that at that time Mr. Frazee knew and understood that the document so marked and signed purported to be his last will and testament."
The trial court did not give the above request nor did he cover it in substance in the charge given to the jury. Instead, immediately following a paragraph in which the court outlined to the jury the legal requisites for the execution of a will, the court charged the jury: "In this case the burden of proof is upon the contestants of the will." Considerably later in the charge and practically at the conclusion thereof the jury was instructed:
"In conclusion, if you are satisfied from the testimony that you have heard and bearing in mind what I have tried to give you as the law involved in this case, if you are satisfied by a preponderance of the evidence that at the time of the alleged execution of this purported will Mr. Frazee did not consciously make his mark intending it to be a signature to his will, or * * * [if the testator did not possess testamentary capacity in particulars outlined by the court] your verdict will be that this is not the will of Frank Frazee." *Page 167
This record does not present a case wherein there was merely an inadvertent misstatement of law which was clearly and emphatically corrected elsewhere in the charge, and under circumstances that excluded any probability of the jury having been misled. And further, the issue of fact to which contestants' requested charge was pertinent was sharply controverted. Lack of legal execution of the will was urged and relied upon by contestants; and if decided against proponent would have been controlling. The record does not sustain appellee's contention that: "No testimony was offered or received * * * contradicting or attempting to contradict or dispute the facts with reference to executing and proving the will in accordance with the elements required by statute." The charge to the jury that: "In this case the burden of proof is upon contestants of the will," as applied to the execution of the will was clearly erroneous and necessitates reversal. By necessary implication the governing statutory provision places upon the proponent of a will the burden of proving its due execution. Act No. 288, chap. 2, § 5, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 [5], Stat. Ann. 1941 Cum. Supp. § 27.3178 [75]).
We are mindful that appellants also urged there was error on the part of the trial court in denying their motion for a directed verdict and their subsequent motion for judgment notwithstanding the verdict; but on the record before us we are disposed to hold, the question being extremely close, that this contention of appellants should not be sustained. Nor are we in accord with appellants' contention that the trial court erred "in receiving testimony * * * as to the paternity of * * * residuary legatee." Because there is no likelihood of a similar record being made upon a retrial of the case, it *Page 168 is not necessary to pass upon appellants' contention that proponent's counsel in repeatedly asking improper hypothetical questions was guilty of conduct which should be held to have resulted in prejudicial error.
The judgment entered below is reversed for the reason first above noted and a new trial granted. Appellants will have costs of this Court.
CHANDLER, C.J., and BOYLES, STARR, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred. WIEST, J., did not sit.