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It is ap

in the circumstances of a particular instance.

parent that every subject of law has its presumptions, even the subject of wills29.

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A presumption that a will was destroyed with the intent of cancellation is raised by the proof of the fact that the will was kept in the custody of the testator and could not be found after his death30. Under the maxim "Omnia praesumuntur in odium spoliatoris, a legal presumption

29. A presumption arises on proof of the signature of the deceased that he knew and approved of the contents and effect of the instrument he signed.

A presumption arises that the testator approved of the contents of the will where proof can be furnished that, prior to the execution of the will by heirs, it was either read over to him, or otherwise brought specially to his attention.

A presumption arises, when several sheets of paper constituting a connected disposal of property, are found together, the last only being duly signed and attested as a will, in the absence of fraud of direct proof, and even in spite of partial inconsistencies in some of the provisions, that each of the sheets so found formed a part of the will at the time of its execution.

A presumption arises in favor of attestation that, if the testator might have seen, he did see the witnesses subscribe their names, and the fact of his being in the same room with them is prima facie evidence of their attestation in his presence.

A presumption arises, in the absence of any evidence to the contrary, that all attestations interlineations, or erasures, which appear on the face of the will, are made after execution of a codicil thereto.

A presumption arises where a will, traced to the possession of the testator, and last seen in his custody, be not forthcoming on his death, that it has been destroyed by himself, aninus cancellando, and this presumption which is obviously founded on good sense, must prevail, unless there be sufficient evidence to rebut it.

A presumption arises, in absence of any distinct intimation to the contrary, that every testator considers his estate sufficient to answer the purposes to which he has devoted it by his will and consequently, in the event of any deficiency arising in the assets, all animosities and legacies will, prima facie be held to abate ratably.

30. Cheever V. North, 106 Mich. 390, 37 L. R. A. 561, 58 Am. Rep. 497, 64 N. W. 455.

may arise that it was legally drawn and executed from the proof of admissions, establishing the fact of revocation which had been fraudulently suppressed or destroyed31. The presumption from keeping a will uncancelled is that its execution was not procured against the will of the testator or against his intelligent consent32. There is no legal presumption against the validity of any provision which a husband may make in favor of his wife33.

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The presumption of sanity cannot have the force of an independent fact to serve as a substantial make-weight against counter proof34. All presumptions of undue influence over a person of sound mind are excluded by rule of law35. It is apparent that the presumption of undue influence arising from a will being drafted by a beneficiary, or by one in confidential relations, may be overcome by showing that it was executed freely and under circumstances which rebut the inference of undue influences. There is no presumption that undue influence has been exercised in a case where by common consent the person of the testator has been committed to the care of him who is charged with the exercise of undue influence37. No presumption of undue influence is raised where a testator fails to give all his property to his near relatives, with some of whom he was not on good terms38.

31. In re Lambie's Estate, 97 Mich. 49, 56 N. W. 223.

32. Pierce v. Pierce, 38 Mich. 412.

33. Latham v. Udell, 38 Mich. 238.

34. McGinniss v. Kempsey, 27 Mich. 363.

35. In re Shepardson's Estate, 53 Mich. 106, 18 N. W. 575.

36. In re Bromley's Estate, 113 Mich. 53, 71 N. W. 523.

37. Severance v. Severance, 90 Mich. 417, 52 N. W. 292.

38. In. re Merriman's appeal, 108 Mich. 454, 66 N. W. 372.

§348. Illustration. Issue. Order of Proof.

By direction of the trial court an issue is made in that court to determine in a particular case39 the following facts: First, the domicile of the testator at the time of his death;

Second, whether the alleged will was his last will and testament;

Third, whether he was of a sound and disposing mind at the time same was made and was not under the undue influence of a certain person or some other person at the time.

The course or order of submitting evidence in a particular case1o, upon the question of capacity, is in compliance with the rule11 where introduced as follows:

First, the proponents introduce the subscribing witnesses, to prove the execution of the will, and make the formal or prima facie proof of the soundness of the testator's mind, without going into particulars of the testator's sickness or its effect upon his mind, and rested.

Second, the contestants then go fully into their case to show the incompetency of the testator, introducing a number of witnesses, some of whom have seen and observed the testator during his sickness, who, after stating the facts, give their opinions as to the condition of his mind and others, who are physicians, giving their opinions upon the state of facts shown by those, who spoke from observation, and upon the hypothesis that such facts are true.

39. White v. Bailey, 10 Mich. 155.

40. Kempsey v. McGinniss, 21 Mich. 123.

41. Kempsey v. McGinniss, 21 Mich. 123. Aiken v. Weckerly, 19 Mich. 482; Taff v. Hosmer, 14 Mich. 309.

Nearly all this testimony tends to show the incapacity of the testator.

Third, the proponents, after the contestants rest, introduce evidence in reply, and go fully into the question of the competency of the testator, his previous habits of life and state of health, his feelings toward his relations, his sickness and its effects, mental and physical, the state of his mind, and degree of intelligence at the time, introducing, among other evidence, the opinion of several medical witnesses based upon a hypothetical state of facts shown mainly by their witnesses who have spoken from personal observation; and which differed, to some great extent, from the state of facts shown by the contestants, and upon the assumption of which their professional witnesses have given their opinion.

The proponents then rest.

$349. Relevancy.

Relevancy is that which conduces to the proof of a pertinent hypothesis42. Any facts or circumstances to be relevant must stand in such a relation to the issue that its connection tested by logical reasoning is apparent unless interferred with by some formal rule of law pertinent to the matter in issue through which the logical sequence is broken. In other words relevant, it has been said, means that any two facts to which it is applied are so related to each other, that, according to the common course of events, one, taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other. In general it may be said that

42. Bl. Com. 321.

the relevancy of the evidence depends upon the issue to be tried43. It is axiomatic that some cases require a larger scope of inquiry and investigation than others. The issue being the motive of a person for doing something out of the ordinary course of events, it follows that under the main issue, all the surrounding circumstances and influences that might contribute or cause such motive may be made the subject of inquiry44.

§350. Admissibility. Execution.

The test of the admissibility of evidence is the rule of relevancy. The questions, put to a subscribing witness, where he was called to prove a will upwards of thirty years after the date of execution, and testified that he signed it as a witness, but that he had no distinct recollection of seeing the testatrix sign it by looking at the attestation clauses, whether he had any doubts she signed it in his presence, whether he ever witnessed an instrument in that form form without knowing what it was, and whether he had any doubt that the persons whose names were appended to it were present at

43. White v. Bailey, 10 Mich.

155.

44. White v. Bailey, 10 Mich. 155.

45. The general rule, which governs the production of testimony, is that the evidence must be confined to the points in issue. This rule not only precludes the litigant parties from proving any facts not distinctly controverted by the pleadings, but it limits the mode of proving even the issues themselves.

Facts so intimately connected

with the facts in issue as to form part of the same transaction or subject matter must be deemed relevant to it.

Facts not directly in issue, but pertinent thereto are relevant.

Facts showing probable cause for existence or non-existence of fact in issue, are relevant.

Facts showing animus as well as similar occurrences showing intention are relevant.

Facts explanatory of pertinent facts are relevant.

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