(dissenting). I cannot agree with the conclusion reached by Mr. Justice Bird that there was no evidence of either mental incapacity or undue influence to submit to the jury. The evidence is certainly no more favorable to proponent, in fact, I think it is less so, than on the former trial. We then held that there was' competent proof to carry both the question of incompetency and undue influence to the jury. It seems to me that in considering this evidence undue weight is attached to the trouble which deceased had with certain of his children. A little of the family history is instructive. As stated in the former opinion:
“His wife was the active manager of their business affairs on account of his being illiterate and not familiar with the English language.”
It may also be said that her management was due to her superior business intelligence. She rented the farm when they moved on it. She negotiated the purchase of the lots in Detroit. The work on the buildings erected on them was largely done by the sons, except Henry, who was married and had a home of his own. When they moved into Detroit in 1907, the mother attended to all business matters, collected the rentals, paid the interest and taxes and provided for the home. After her death in 1909, a daughter, Adele, then 20 years old, took charge of such matters at her father’s request. She opened a bank account in his name. There is testimony that the father at this time was drinking intoxicating liquors somewhat to excess and that the children were concerned about it. At a family meeting at which all were present, he requested the eldest son, Henry, to take charge of his business affairs. In September, 1909, he executed a power of attorney to Henry, authorizing him to do so. No friction developed until *430the spring of 1912, when the deceased first met the proponent in Detroit soon after her arrival from Belgium. She was an aunt of his late wife. She was then about 40 years of age and unmarried. He saw her frequently at parties and at the place where she was working and became fond of her. His son August and his wife were then living with him in his home. He expressed dissatisfaction about his meals and treatment generally and in June left his home and went to live with Mr. Van Derplanke. In the summer of 1912, he visited Belgium. On his return he lived with his son Camille for some months. At his request Henry got the tenant of one of his houses to vacate and he went there to live. His close association with proponent was continued. In the spring of 1913 he demanded the return of his power of attorney and papers. Henry filed a petition for and was appointed guardian of his father. Deceased soon after made application to vacate this order and such action was had on August 26th, there having been no opposition thereto. Proponent admits that deceased first spoke to her about working for him in the spring of 1913 “because he said that his children were not good to him and he wants somebody to take care of him;” that for a few months she worked for him mornings and evenings, staying at his home nights, and about September 1st she began keeping house for him at 349 Fisher avenue, which he owned. It was a single house, with seven rooms, all the sleeping rooms being upstairs.
These occurrences and their dates are to me very significant. The deceased was apparently content to permit Henry to continue looking after his business affairs until his intimacy with proponent had developed to the extent that she was doing his work for him and as soon as he had regained the control of his *431property she' went to live with him. The first will was made in April, 1914, about seven months thereafter. It is said that he was annoyed because his children did not more frequently visit him thereafter. We think no explanation was needed as to why they did not do so, but, if so, it is given in what his old friend, Mr. VanSlembrouck, said to him, hereinafter quoted. His eldest daughter, Emma Warnez, also testified that he said to her:
“Louise don’t care much for youse, and you better not come. Whenever I want to see you I come and see you myself.”
Stress is laid upon the fact that his properties were greatly improved after 1914 and the rental values thereof much increased. It is apparent that proponent superintended such work. Several who did work on the properties testified that she made the arrangements therefor, and I think it may fairly be said from the record that she took Henry’s place as the manager of his business affairs. She testified that he wanted her—
“to take care of his business and take care of making his meals and attend to all what have to be done.”
That she was an able, competent, business woman, there can' be no doubt. She had been engaged in the creamery business with one of her sisters for six years before coming to Detroit. She opened a bank account in January, 1914, in her own name and deposited the money of the deceased as well as her own in it. Her reason for doing so is thus stated by her:
“Because he did not want no bank account; he did not want to bother him to go up and down to the bank and he said he wanted me to put it in my bank book, to go myself to draw it out when we needed it.”
In answer to questions concerning particular deposits she said:
*432“I deposited the money when we got too much money and kept it for to pay bills.”
At his death there was to her credit in the bank $305.73. She testified it was all hers and that he also owed her money at that time. She held his note for $1,200, executed on May 15, 1916.
These facts, and I think it may be said that they are undisputed, were all placed before the jury, and the testimony submitted as to the mental competency of the deceased at the time he executed the will in question and the undue influence exercised over him by proponent in procuring its execution was considered by them with such facts in mind.
The will practically disinherited all his children, most of whom had contributed largely of their time after attaining their majority to the acquisition of his property, as will hereafter be pointed out. That he had no reason for doing so prior to the time when he came under the influence of proponent is clearly apparent. That she was kind to him, looked after his affairs, and rendered him valuable service also admits of no doubt. But that, if mentally competent and free from undue influence, he would have recompensed her by bestowing upon her substantially all of his property, worth, as stated by Mr. Justice Bird, between $13,000 and $14,000 (there is (proof that its value was much greater), may well be doubted.
Let us now examine the proofs, bearing in mind the familiar rule that when a motion is made for a directed verdict it must be viewed in the light most favorable to the other party. The length of this opinion precludes but a few quotations from it, all of which was admitted without objection.
Paul DeBeake, also a Belgian, lived quite near to deceased the last few years of his life. He testified that deceased had a couch in the basement of the four-*433family flat in which he lived and he saw him there three or four times a week. On being asked what deceased was doing in the basement, he answered:
“Well, he would keep that furnace going, and he would lay down. He was kind of sickly and feeble; if I went down to talk to him often I could only speak a word or two; he wanted me to go away like he was feeble and childish like; you could not get no conversation for the last couple of years, it was wonderful, I pity the old man.”
He further testified:
“Q. Will you state whether or not he ever talked about Henry?
“A. Oh, yes, often, he always talked ever since he came over from the old country; he think the world about Henry and his children all of them; it would be Henry, Henry did lots of work forddm and the children worked hard for him, all the time, and was nice to him.
“Q. Will you state whether or not during the last couple of years of his life he was always able to understand you when you talked to him?
“A. Well, yes, he could understand some words if you talk to him, you know, and sometimes he act like if he don’t care about talking to you, you know, he was sickly, you know., and feeble-like.
“Q. And what kind of answers did he make to what you said to him sometimes; were they sensible answers or not?
“A. Well, he can’t hardly answer, like you talk about the work, if you meet a man like that, childish, you ain’t going to answer him no questions to bother him about anything; you know, because he was feeble and childish like for the last two years, you could get no conversation from him at all. * * *
“Q. Well, he used to come over there and you always used to play cards together at the place you spoke of?
“A. Yes, that is for the last two years he did not play no more cards; he could not hold them in his • hands.
*434“Q. His hands trembled a little bit?
“A. Yes, and he could not count; he could not keep track no more.
“Q. Did he complain to you about his children never coming to see him?
“A. He never say nothing around about his children; of course, he told me that Louise don’t want his children around there; he always told me not to say anything because he 'got to live with her and she don’t want them.”
Elizabeth Wayoff, who occupied a part of the house in which deceased lived, moving in about the time the last will was made, and who could speak the Flemish language, testified:
“Q. And what, if anything, have you seen him doing?
A. Well, I seen him often working down in the basement and I seen him often crying down there too.
“Q. Will you state whether or not anything had happened at or about the time you saw him crying in the basement?
“A. It was mostly after he had an argument, or I don’t know if it was an argument, or a loud talk with this lady, with Miss Billiet.
“Q. With — loud talking with Miss Billiet?
“A. Yes.
“Q. Will you state whether or not you recognized the character, or anything of the nature of the remarks she made to him' oh these occasions?
“A. Well, I .thought she was quarreling with him, and she swore at him often and then slammed the door and left him alone.
“Q. And it was after she swore at him that he would cry?
“A. Yes.
“Q. About how many occasions would you say you have seen him crying in the basement?
“A. Oh, well, I don’t know, I guess about four or five times in the time that I was over there.
“Q. Did you talk to him when you saw him crying there?
“A. Yes, I did.
*435“Q. And what did you say to him?
“A. I went down and my husband did, too, and we asked him if we could do something for him, and he said ‘no,’ he wanted to be left alone.”
She also testified that deceased used to work at night in the basement and that on two occasions she saw him making cement sidewalks about 1 or 2 o’clock in the morning; that she spoke to proponent about it:
“Q. And what did she say?
“A. She told me not to mind him because the old gentleman was half of the time out of his mind; he did not know what he was doing.
“Q. Did she say anything else about him?
“A. Well, she said: ‘You see he is out of his mind because he got lost once in a while and not long ago a policeman had to bring him home.’ ”
And as to another occasion:
“Well, my husband and I, we went to pay the rent and she was sitting rather close to him.
“Q. To the old gentleman?
“A. Yes, and when she came up to the house my husband made the remark and asked her; he said: ‘Well, there must be something more about it than being a housekeeper for him,’ and she said: ‘No, don’t you believe it, there is nothing to it, I am just a plain housekeeper to him; I get good pay for him and I have a good home/
“Q. She said she got good pay for it?
“A. Yes, she said even how much she got.
“Q. How much did she say she got?
“A. $30 a month.
“Q. How much?
“A. $30 a month.
“Q. $30 a month. Will you state whether or not the old gentleman ever did anything else unusual that you have not told us about?
“A. I don’t know, besides working in the basement nights, he often came and brought his cat along and talked to his cat for an hour or so.
“Mr. Bowles: His what?
*436“Q. To his cat?
“A. Yes, his cat.
“Q. He talked to his cat for an hour or so?
“A. Yes, right under our bedroom.”
August Ver Vaecke, the youngest son of deceased and with whom his relations had ■ apparently always been pleasant, testified that once he met his father in a saloon and—
“Father told me, he says: ‘You don’t know what I am here for?’ I says: ‘What is the matter now?’ ‘Why,’ he says, ‘Louise has always been bothering me now for the last few weeks for making a will and I ran away from her.’ That was the fore part. of June, 1917. I met him once before at the corner of Sheridan and Kercheval.
“Q. What was said between you and he at this place at Sheridan and Kercheval ?
“A. Why, he says that Louise always was after him, that she wanted to get married to him. He said he would not marry another woman on a bet.
“Q. Will you state what he said, if anything, as to what she wanted in addition to marrying him?
“A. He said that she wanted all the property when she married him.”
He further testified that on one occasion he saw his father at his home. Proponent was present.
“A. Louise says, in the presence of me and my father: ‘Yes, he is getting rather childish, I have got to be watching him wherever he goes; he will say he will go over there and he will go down in the basement.’
“Q. Did your father say anything or make any objection to that statement?
“A. No.”
Albert Oliver, an electrical contractor, testified that he did some work in the houses owned by deceased-in the spring of 1917; that proponent always made the arrangements with him and paid him for the work done, although deceased was present at times; that *437after the death of deceased proponent asked him “to make some receipts over again, I think, in Mr. VerVaecke’s name,” and that he told her he “could not do it.”
Henry B. VanSlembrouck, a compatriot of the deceased, who had lived in Detroit for 25 years, having been deputy county clerk, deputy county treasurer, deputy sheriff, and for six years Belgian vice-consul in Detroit, a friend of the deceased for many years and a personal friend of the proponent, testified that deceased came to him several times in 1913 and 1914 and asked him to prepare his will; that he declined to do so for the reason, among others:
“I stated to him that on account of his advanced age and the peculiar circumstances under which he was living, that I would not feel justified to draw the will because I did not think that he realized what he was doing.”
In view of this testimony, and there is much other of the same character, I do not think it can be said, as a matter of law, that there was no evidence to submit to the jury on the question of the mental incompetency of the deceased or the undue influence exercised over him by the proponent. She accompanied deceased to Mr. Powell’s office at the time the will in question was drawn. It appears, however, that she was not in the room with them when it was prepared or executed.
It is admitted that the only' property which, passed to his children under the residuary clause in the third paragraph was the Van Dyke avenue property. The only testimony I find as to its value fixed it at $6,000. This bequest alone was subject to any indebtedness he had, not specified in the will itself. The bequests to proponent were specific. The testimony shows that at the time of his death proponent held his unsecured note in the sum of $1,200; that he was in*438debted to the American State Bank in the sum of $600, to Robert Trombley in the sum of $1,500, and to Mrs. Robert Trombley in the sum of $2,700. The bequest to his children therefore carried nothing of value.
When properly presented, it is our duty under the statute to examine the proof submitted and, if we find the verdict to be contrary to the great weight of the evidence, to order a new trial. Two juries have decided in contestants’ favor. Two trial judges have denied motions for new trials, based on the claim that the verdicts were against the weight of the evidence. These juries and judges saw the witnesses and heard them testify. In stating his reasons for denying the motion, Judge Webster said, in part:
“Twenty-four men have now decided in favor of the contestants and two circuit judges have decided that the verdict of the two juries was not against the weight of evidence. I believe there is a vast difference between reading testimony in cold type and seeing witnesses upon the witness stand and hearing them testify, being able to observe their features, their demeanor and conduct upon the stand you are bound to get a different and a better impression and one more near the truth than you could possibly get by sitting afterwards some distance away and reading in cold type what that witness said. You have then before you nothing but the plain language. You have not the witness, the witness’ face, features, conduct and demeanor upon the stand, and many other various little things that happen as a witness is testifying by which you may decide whether or not the witness is testifying to the truth. It is impossible to put those things in print and some of them it would be impossible even to describe, because I think it has been the experience of all of us that sometimes there is something about a witness while testifying from which you decide whether or not that witness is telling the truth and that sometimes, I say, that 'something’ is not even describable. For instance, the Supreme *439Court says that the testimony, reciting certain parts of it, shows that he (the testator) had been wronged by his children. I gain no such impression. My impression is entirely the opposite and, as I say, I have the advantage in having seen all of these witnesses and heard them testifying and watched them while they were testifying. I am satisfied that these children did not wrong their father and never had any intention of wronging him. On the other hand, I am satisfied that he had a delusion upon this point. He justified his own conduct by blaming his children. This is quite usual under similar circumstances. When a woman comes into a man’s life, especially at his age, and who has lost his first wife, and who has children, and there is some feeling between the children and the new woman, it is quite ordinary and customary for the man, in order to justify himself for his conduct in reference to the new woman, to blame the entire situation upon the children. When this plaintiff got this hold over the testator that she evidently did get, the children were helpless. There was nothing they could do and they did not know what to do to stop it. In fact experience has shown there is no way to stop it when an old man of his age becomes infatuated with a new woman, after losing his wife, there is nothing the children can do, they might as well give up.
“I am satisfied this plaintiff was the cause of all the trouble and the reason for his condition of mind and the feeling that he had toward his children and his action in making this will.. I am satisfied of all this from the testimony and from the action and demeanor and conduct of the various witnesses upon the stand while giving that testimony.”
The conclusions reached by these judges should have much weight. Satisfied, as I am, and as we before held, that the proponent was not entitled to a directed verdict, I am persuaded that the case should not go back for a new trial.
The judgment should be affirmed.