JANUARY TERM, 1860, AT LANSING.

Julia Beaubien and others v. Mary A. Cicotte and

others.

The averments on the part of the propounder of a will should include everything necessary to constitute it a valid will under the statute, so that a verdict finding the truth of those averments, without more, would bring the will within all the express requirements of the statute. He must, therefore, aver the soundness of mind of the testator at the time of the execution of the will, and the burden of proof is upon him to prove that fact.

But upon questions of evidence, growing out of any presumption of sanity affecting the burden of proof in particular cases, the Court express no opinion.

Heard December 3d, 1859. Decided January 4th.

Case reserved from the Wayne Circuit.

Joseph A. Moross and others, claiming under an instrument purporting to be the last will and testament of Antoine Beaubien, presented the same to the Probate Court for the county of Wayne, for probate and allowance, but on hearing, the same was disallowed. From the order of disallowance they appealed to the Circuit Court, and an issue being there directed to be made up, propounded in writing the averment that the instrument presented "was signed by the said Antoine Beaubien, on the day when it bears date, to wit, the 12th day of January, in the year eighteen hundred and fifty-eight, as and for his last will and testament, and was then and there attested and subscribed in his presence by at least two competent witnesses, and that at the time of the execution thereof the said Antoine Beaubien was of full age."

Micп 8-B

BEAUBIEN v. CICOTTE.

The contestants demurred, assigning for cause that "there is no averment that at the time of the signing of the said instrument, as and for his last will and testament, the said Antoine Beaubien was of sound mind."

On the hearing upon this demurrer, the Circuit Judge reserved for the opinion of this court the question,

Is the burden upon the appellants and propounders of the will, in this case, to aver and prove that, at the time of the execution of said will, the said Antoine Beaubien was of sound mind?

J. M. Howard, for appellant, cited:

2 Greenl. Ev. §689; 1 Ibid. §77; Note to Phelps v. Hartwell, 1 Mass. 71; Buckminster v. Perry, 4 Mass. 593; Brooks v. Barrett, 7 Pick. 94; Atty. Genl. v. Pranther, 3 Bro. Ch. 441; Hix v. Whittemore, 4 Metc. 546; Stewart's Ex. v. Lispenard, 26 Wend. 255, 301, 303.

S. T. Douglass, for respondants, cited:

Barry v. Butlin, 1 Curteis 638; Saukey v. Lilley, Ibid. 397; Ibid. 350; Baker v. Batt, 2 Moore, 317; Browning v. Budd, 6 Moore 430; Parke v. Ollatt, 2 Phill. 323; Harris v. Ingledew, 3 P. Wins. 93; Wallis v. Hodgeson, 2 Atk. 56; Crowninshield v. Crowninshield, 2 Gray 524; Baxter v. Abbott, 7 Gray 71; 32 Me. 441; 34 Me. 162; 6 6 Ga. 324; 10 Ibid. 324; 14 Ibid. 395, Comstock v. Hadlyme, 8 Conn. 254; 13 Ill. .15; Brydges v. King, 3 Eng. Ec. R. 109; Mynn v. Robinson, 4 Ibid. 72, Marsh v. Tyrrill, Ibid. 33, 51; Ingram v. Wyatt, 3 Ibid. 167; Berger v. Hill, 1 Bradf. 360; Weir v. Fitzgerald, 2 Ibid. 42; Ibid. 261, Mowry v. Silber, Ibid. 134; McGuire v. Keen, Ibid. 244; Comp. Laws, § 2825, 2828, 2829, 2832.

CHRISTIANCY J.:

The only question properly reserved for our opinion, in this case, is that raised by the demurrer.