BEAUBIEN v. CICOTTE.

The averments on the part of the propounders of the will, for the purpose of forming an issue upon its validity, should, we think, include every thing necessary to constitute it a valid will under the statute, so that a verdict finding the truth of all those averments, without more, would bring the instrument within all the express requirements of the statute.

The law in case of intestacy, that is, in the absence of a will which is valid under the statute, fixes the descent and distribution of the property of deceased persons. Under certain conditions which the statute has prescribed, and in no other event, it allows the owner to control the disposition of his property after his death, by means a will. The power to make wills, the formalities with which they shall be executed, and their efficiency, depend upon the statute.

statute as compe"of full age and

The only persons recognized by the tent to make a valid will, are persons sound mind." Soundness of mind, then, in the testator, at the time of making the will, is one of the statute requisites to its validity.

But, it is said, the law presumes this soundness of mind till the contrary be proved that soundness of mind is also necessary to the validity of deeds, contracts, and other writings besides wills, and yet that it is never necessary, in pleading such deeds, contracts and other writings, to aver soundness of mind in the parties executing them. This is certainly true in the case of deeds and all ordinary contracts and writings inter vivos, and yet soundness of mind is necessary to their validity. But in these cases. the law only implies the necessity of the fact, without expressly requiring it; and where its necessity rests only upon implication, the presumption of sanity which the law raises without proof, is sufficient to satisfy the implication of its necessity, without averment.

But where the Legislature have not been satisfied to

BEAUBIEN . CICOTTE.

leave the necessity of the existence of the fact to implication, but have thought it necessary to require its existence by express enactment, upon what principle can a pleading, which sets up a right under the statute, leave the same fact to implication which the Legislature were unwil ling to leave to the same implication? Where the statute has expressly required the existence of the fact, the pleader, we think, must expressly aver it.

We will not say here that there can be no presumption under our statute in favor of soundness of mind in the case of a will. The case, as presented by the demurrer, does not call for a decision upon a question as broad as this. But it is manifest from the nature of things, and from common observation and experience, that this presumption is not so strong in the case of wills generally, without special reference to the facts of any particular case, as in the case of deeds and ordinary contracts. Instruments of the latter description are generally executed in the common course of business, while the parties are in full possession of their ordinary physical and mental powers. Wills, on the contrary, are much more frequently, if not in the majority of cases, executed when the testator is in extremis, when the physical powers, at least, are greatly impaired, and the mental faculties much more likely to be weakened or obscured.

We think the statute intended to recognize this obvi ous difference between the two classes of cases when, in defining the persons competent to make a will, it expressly requires soundness of mind in the testator, while it is silent as to that requisite in the case of deeds and other contracts. We can see no other sufficient reason for expressly requir ing it in the one case, and not in the other.

But all wills are not made when the testator is in extremis. They are sometimes executed long before his death, and while in full physical health. In such cases, doubtless, the reasons are just as strong for presuming soundness of

BEAUBIEN v. CICOTTE.

mind, as in the case of deeds or contracts. And while we do not deny, as an abstract question, that there may be, in cases of wills, without reference to the facts of any particular case, a presumption of soundness of mind in the testator; yet, as matter of fact, the force of the presumption must depend much upon the circumstances of each particular case as disclosed by the evidence; and when the question arises only upon a pleading like the present, which discloses none of the circumstances of the case, and is to be decided in the abstract, as a question of pleading under the statute, the presumption, if there be any, is not strong enough, we think, to dispense with the averment of the fact.

We are therefore of opinion the demurrer is well taken; but the parties propounding the will should, of course, be allowed to amend.

It follows from the view we have taken of the pleading, that the burden of proof, as to soundness of mind, rests upon the parties seeking probate of the will. This, we think,

is also to be inferred from the eighteenth and nineteenth sections of chapter 92 Compiled Laws, in reference to the proof of wills by one subscribing witness only, when not contested, as well as where all the witnesses reside out of the state; in both of which cases the statute assumes the necessity of such proof.

But, beyond this, upon any particular question of evidence growing out of the presumption in question, and the burden of proof, we express no opinion, as we could only do so upon hypothetical cases, which might have no bearing upon the case as presented on the trial, and which have not been, and could not be argued in the case as now presented.

Whether, in the absence of all evidence upon the point, the subscribing witness being ignorant respecting it, and nothing appearing to throw doubt upon the sanity of the testator, the legal presumption would be sufficient to sustain the burden of proof till overcome by opposing evidence:

BEAUBIEN v. CICOTTE.

Whether, if the evidence were equally balanced, this presumption should turn the scale in favor of sanity, or whether there must be a preponderance of evidence in its favor independent of the presumption: Whether upon the formal proof, by the subscribing witnesses, of its execution, and the soundness of mind of the testator, the burden of proof changes to the contestants, to prove unsoundness of mind; and which party is entitled to open and close, upon the whole case, or certain branches of the case: - All these are questions upon which there is, perhaps, as painful a conflict of judicial decisions as upon any other questions to be found in the books. See 1 Jarm. on Wills, (3 Am. Ed.) pp. 74, 75, and notes, where the various cases are collected: and see Baxter v. Abbott, 7 Gray 71, and Crowninshield v. Crowninshield, 2 Gray 524.

Many of these questions might depend much upon the precise nature of the issue or issues formed upon the pleadings, and much also, upon the circumstances of each particular case, as disclosed by the evidence. The attempt to lay down rules a priori, upon questions of so much difficulty, would be dangerous in the extreme. We therefore refrain from the intimation of any opinion upon them, until a case shall be presented which may render it necessary.

The other Justices concurred.

The People on the relation of DeWitt C. Holbrook v.

The Treasurer of Detroit.

The owner of an undivided interest in lands in the City of Detroit, may redeem such interest from a sale made of the whole land for taxes assessed thereon for city purposes, since the Charter of 1857, by paying a proportionate amount of the whole tax.

Heard December 9th, 1859. Decided January 5th.

Motion for a mandamus.

The relator being the owner of an undivided interest

PEOPLE. TREASURER OF DETROIT.

in a lot in the city of Detroit, which had been sold for city taxes assessed thereon for the year 1857, applied to the city treasurer to redeem such undivided interest from the sale, and claimed a right to do so on payment of a proportionate amount of the tax assessed upon the whole lot. The treasurer refused to receive a portion only of the tax, and denied the right to redeem any interest in the land except on payment of the whole tax. The relator thereupon applied for a mandamus.

D. C. Holbrook, and S. T. Douglass, for relator.

J. L. Chipman, City Attorney, contra.

CAMPBELL J.:

The only question in this case is, whether an owner of an undivided interest in a piece of property which has been assessed without division, can redeem his share from a sale for city taxes.

The city charter, providing for the assessment of property, is silent as to its details, but as the same roll is the basis of all taxation, the general statutes apply so far as not modified by the charter. Under these, no doubt can exist concerning the right to assess undivided interests. And the law expressly provides for the redemption of any undivided interest whatever.

I think the charter very clearly recognizes the right of owners of part interests, to pay their share of taxes to the collectors before sale, whether separately assessed or not. Section 14 of the charter (L. 1857, p. 144-5) makes the tax a lien upon the property assessed, and renders the owners, occupants, and parties in interest, liable on demand to pay it. The statute could not have intended such an absurdity as that a part owner should be bound to pay the whole tax. Such a construction would avoid the statute, as beyond the power of the Legislature. And in the very next clause provision is made, that in