
    
      In re BRINK ESTATE DESTRAMPE v. MITCHELL
    1. Appeal and Error — Review—Directed Verdict — Inferences— Testimony — Question op Pact.
    An appellate court, in reviewing a directed verdiet granted by a trial court, will consider the testimony and all legitimate inferences in the light most favorable to the non-moving party.
    2. Wills — Undue Influence — Evidence — Sufficiency — Question of Pact — Directed Verdict — Propriety.
    Evidence that testatrix signed her will as the result of undue influence, fraud and misrepresentation, was sufficient to preclude a directed verdiet in favor of proponent of the will on the issue of undue influence.
    3. Wills — Mental Capacity — Evidence — Sufficiency — Directed Verdict — Propriety.
    A lack of any evidence in the record showing that a testatrix was mentally incapacitated at the time that she executed her will warranted a directed verdiet in favor of proponent of the will on the issue of testamentary capability.
    4. Trial Evidence — Instructions to Jury — Waiver of Objections.
    Objections to trial court instructions to the jury are waived when a party fails to make a timely objection and expressly accepts those instructions.
    References for Points in Headnotes
    [1' 5 Am Jur 2d, Appeal and Error § 886.
    
      2' 57 Am Jur, Wills § 453.
    57 Am Jur, Wills § 928.
    :4: 53 Am Jur, Trial § 827.
    
      5' 39 Am Jur, New Trial §§ 107,117.
    
      5. Trial — Courts — Instructions — Judicial Misinterpretation —New Trial.
    A party’s acquiescence in a trial court’s accidental misinterpretation of the contents of jury instructions should not work to that party’s detriment; consequently, where plaintiff requested an instruction that the jury could draw any reasonable inferences from the facts and the testimony and the court responded that such an instruction had already been given but the record indicated otherwise, plaintiff was entitled to a new trial.
    Appeal from Wayne, Edward S. Piggins, J.
    Submitted Division 1 February 6, 1970, at Detroit.
    (Docket No. 6,637.)
    Decided March 30, 1970.
    Complaint by Alexina Destrampe, Rosemarie Econom, and Geraldine Black against Blanche M. Mitchell proponent of the will of Jewel L. Brink, deceased, contesting the validity of that will. Directed verdict for proponent. Plaintiff Black appeals.
    Reversed and remanded.
    
      Bain & Shapero, for plaintiffs on appeal.
    
      Bussell Q. Marsden, for defendant on appeal.
    Before: Levin, P. J., and J. H. Gillis and Bronson, JJ.
   Per Curiam.

This is an appeal by plaintiff from a directed verdict in a will contest entered by a Wayne County circuit judge after the jury had deadlocked. The facts of this case are amply set forth in In re Brink Estate (1968), 11 Mich App 413.

The issues on appeal can be summarized as follows :

I. Whether the trial court erred by granting the directed verdict?

II. Whether the trial court’s instructions to the jury were erroneous because:

(a) They were confusing;

(b) Proper instructions were not given with regard to the fiduciary duty that arose between the testatrix, her attorney, and her guardian;

(c) The effect of the probate court guardianship proceedings was not correctly explained ; and

(d) The jury was not instructed that they could draw any reasonable inferences from the facts and testimony presented.

I.

Plaintiff’s argument basically is that a directed verdict was improper because the evidence when viewed in the light most favorable to plaintiff, the non-moving party, established that the testatrix’ signing of her will was the result of undue influence and fraud and misrepresentation and, further, that the testatrix lacked testamentary capability.

At trial, testimony was adduced which stated the following: The deceased told witness LePine that the attorney has his hands out for money. The testatrix wrote her brother that the attorney was taking her for all he could. Testatrix told witness Le-Pine that the attorney and her own brothers and sisters told her that if she made out a will the way they wanted they would see that she got out of the convalescent home. Witness Econom was present when deceased’s brother made a similar statement. Testatrix did not like the home. There is testimony that deceased was told that plaintiff had instituted the competency proceedings. We feel that the statements and testimony resulted in a question of fact. In reviewing the ability of the trial court to grant a directed verdict, we will view the testimony and all legitimate inferences therefrom in a light most favorable to the plaintiff. In re Lewandowski’s Estate (1926), 236 Mich 136. Viewed in its most favorable light, the testimony supportive of plaintiff is sufficient to preclude a directed verdict. In re Wood Estate (1965), 374 Mich 278. As this Court stated in Patrick v. Pulte-Strang, Inc. (1967), 8 Mich App 487, 493, 494:

“In a jury trial the jurors are the conclusion-drawers, and the conclusion they reach decides the case if there is any evidence reasonably supporting it. * * * Appellees put selected pieces of the evidentiary puzzle together in a way that would show the absence of negligence; but the question rather is, whether on a favorable view to appellants it is reasonably possible to put them together' otherwise. Appellants on their part find the record ‘overwhelmingly convincing to establish fault.’ It is enough for us to find that it clearly presents a jury question.”

A review of the record as demonstrated by plaintiff’s references to the transcript establishes that the application of such a rule precludes a directed verdict on the question of undue influence. Sufficient testimony existed, such that if taken favorably to plaintiff was supportive of plaintiff’s position. We find further, however, that a review of the record does not reveal any evidence negating the mental capacity of the deceased at the critical time she executed the will. As far as that fact is concerned, a directed verdict was not improper.

II.

An analysis of the first three aspects of this issue establish that no appealable error occurred. Any objections that plaintiff had were waived by her failure to make timely objection and by her express acceptance of instructions. At trial the following occurred:

“Court (after concluding the instructions): Are there any other suggestions or questions, gentlemen?

“Mr. Gallagher: Let the record show proponents are satisfied with the court’s charge.

“Mr. MacWilliams: Your Honor, just one request, that the jury be instructed that any reasonable inference they draw from any facts they should find would be permissible.”

As to the fourth stated objection, (d), plaintiff did request an instruction regarding reasonable inferences. The court responded: “I think I have already told them that.” However, a reading of the transcript establishes that the trial judge had not “already told them that.” Plaintiff’s acquiescence in the trial court’s accidental misinterpretation should not work to her detriment.

Reversed and remanded. 
      
       Por further background information see LaForest v. Black (1964), 373 Mich 86.
     
      
       See LaForest v. Black (1964), supra.
      
     
      
       See LaForest v. Black, supra.
      
     
      
       See 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 530, authors’ notes.
     
      
       What the court did say was:
      “In determining what the facts are, I charge you, members of the jury, not to go outside the record in this case. Both counsel have told you that arguments of counsel are proper. They have a right to draw from the testimony whatever reasonable inferences they may wish to draw and present them to you but the arguments are not testimony. You are to arrive at the facts in this case by weighing the testimony as it came from the witness stand. That is the record in this case. The testimony that was allowed by the court and the exhibits that were allowed in evidence here.”
     