and mortgages. The notes and mortgages, together with the money, were placed in the safe in Bosworth's store across the street. The majority of the papers were not examined at all. No search was made for a will. They were looking for money. Immediately after the funeral on Wednesday, Harold hurriedly took all the papers out of the drawers, pigeon holes, etc., in the desk, stuffed them in pillow cases, and placed them in a telescope. Together with his Uncle Delos, he left for New York State that night, taking the telescope and papers with them, where they remained until Thursday or Friday of the following week. Harold McIntyre testifies:

"Uncle and I left Sand Hill about 7 o'clock that night; I think 7 or 8 o'clock. I carried this grip full of papers. I did not take with me any of the papers which had been placed in Mr. Bosworth's safe and afterwards placed in the Wayne County deposit box. I had the key to that deposit box. I traveled with my uncle to Evanston, N. Y., and his home was four miles below there, and I left him at Leonardsville. My uncle had the telescope with these old papers."

Dr. Holcomb testified that the bills in the long pocketbook in the desk

"Looked as though they had been handled in some way. They were not out smooth. They were crinkled up apparently. That was easy to be discerned. Looked as though they had been handled by somebody, and after they were straightened out they were put back in the pocketbook."

If the declarations of the testator were admissible as evidence, then we think the case should have been submitted to the jury. Here was a very large estate, in the eyes of the parties interested, and the desire to possess it would furnish a powerful motive for suppressing a will which would divert it entirely into other channels. Both immediately before and after the death of Mr. McIntyre, his papers came into the hands and were under the control of those who had this powerful motive, and, without having made any specific search for a will, they immediately after

the funeral removed the vast majority of the papers from the State of Michigan and left them in charge of the brother whom Harold was afraid to send for. The secreting of the testator's money by Harold was also a suspicious circumstance, which the jury were entitled to consider in determining whether he would be likely to take advantage of his opportunities to secrete a will, if one existed. The inveterate hostility of the testator towards his brothers, which was in large part the cause of his making the will, in order that they might get none of his property, might also give rise to a legitimate inference that the brothers, whose motive would lead them to destroy the will, actually did destroy it, rather than the man whose motive would lead him to preserve it.

But counsel for contestants contend that the declarations of the testator were not competent evidence to rebut the presumption of revocation, and that the great weight of current authority is to that effect, citing Throckmorton v. Holt, 180 U. S. 552; In re Kennedy, 167 N. Y. 163; Clark v. Turner, 50 Neb. 290 (38 L. R. A. 433); Mercer's Adm'r v. Mackin, 14 Bush (Ky.), 434; Lane v. Moore, 151 Mass. 87; Meeker v. Boylan, 28 N. J. Law, 274; Walton v. Kendrick, 122 Mo. 504 (25 L. R. A. 701); Hayes v. West, 37 Ind. 21; Couch v. Eastham, 27 W. Va. 796; Gordon's Case, 50 N. J. Eq. 397; Leslie v. McMurtry, 60 Ark. 301; Gibson v. Gibson, 24 Mo. 227.

We do not deem it necessary to enter upon a discussion of the authorities, to determine on which side the weight of authority lies, since the rule has been established in this State against contestants' contention. Lawyer v. Smith, 8 Mich. 412; Harring v. Allen, 25 Mich. 505; In re Hope, 48 Mich. 518; In re Lambie's Estate, 97 Mich. 50; Cheever v. North, 106 Mich. 390 (37 L. R. A. 561).

The Throckmorton and Kennedy Cases, supra, repudiate the doctrine of Sugden v. Lord St. Leonards, L. R. 1 Prob. Div. 154. That case is cited with approval in the Lambie Case, supra, by this court. See, also, in

support of the rule as adopted in Michigan, Patten v. Poulton, 1 Swab. & Trist. 55; Morris v. Swaney, 7 Heisk. (Tenn.) 591; Southworth v. Adams, 11 Biss. (U. S.) 267; Gardner v. Gardner, 177 Pa. 218; Gavitt v. Moulton, 119 Wis. 35; In re Page, 118 Ill. 576; McDonald v. McDonald, 142 Ind. 55.

As said by Chief Justice Appleton in Collagan v. Burns, 57 Me. 449:

"The declarations of the testator may have been false and uttered to deceive; or, being true, they may have been misunderstood, in whole or in part, from inattention. They may have been misrecollected from forgetfulness or misreported from design. But all this affects the degree of credit to be given the testimony, not its admissibility. It shows that caution should be used in weighing it, not that it should be excluded. The exclusion of evidence, relevant and material, from the fear that it may not receive its just degree of credence, is the rude resort of barbarism. Civilization hears, weighs, examines, compares, and then decides."

But one other question remains for consideration: The trial judge excluded a certain paper alleged to be the original draft of the alleged will, and upon this ruling error is assigned. It was proved by the testimony of two of the scrivener's sons that the draft or memorandum was undoubtedly in their father's handwriting. The draft agrees in most respects with the oral testimony as to the contents of the will and the expressed intentions of the testator. There was evidence from which the jury might legitimately find that Mr. Smith, the scrivener, read the will over to testator and it was then executed by the testator and witnesses, without change; that in the evening of the same day the draft was found upon the floor of the same room and near the same table at which the will was executed; and that the draft was in the same condition as then. this paper actually was the draft from which the will was drawn, and the will had been destroyed, the draft was manifestly the best evidence in existence of its contents. The testimony indicates that this was the only will which

If

Mr. Smith had ever prepared for Mr. McIntyre, and we think the question should have been submitted to the jury whether the paper was the preliminary draft from which the will was drawn. If it was, it was admissible in evidence.

The judgment is reversed, and a new trial granted. CARPENTER, GRANT, MONTGOMERY, and OSTRANDER, JJ., concurred.

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27

NEAL v. GILMORE.

1. HIGHWAYS-OBSTRUCTIONS-REMOVAL.

Act No. 243, Pub. Acts 1881, relating to obstructions and encroachments on highways and the removal thereof, does not abrogate the common-law remedy of abatement of nuisances by the mere act of individuals.

An unauthorized obstruction across a public street is a public nuisance which any citizen desiring to travel along the street may abate.

3. SAME-ABATEMENT-SPECIAL INTEREST.

If a special grievance on the part of an individual abating an ob-
struction in a highway be necessary, such grievance exists in
the case of the highway commissioner by virtue of his office.

4. SAME-ACCEPTANCE OR USER-QUESTION FOR JURY.
Evidence of the acceptance of a highway by doing work thereon
and of its use by the public considered, and held, sufficiently
in conflict to make the question one for the jury.

5. SAME-OPENING AND WORKING.

The fact that no part of a highway was opened and worked within four years after being laid out, as required by section 4063. 2 Comp. Laws, does not prevent the establishment of the

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145 2435

highway by user under section 4061, but would merely require a user of ten years, instead of eight.

6. SAME.

It is not essential that every part of a highway should be worked, in order to show the intention of the public authorities to accept the entire highway.

7. TRESPASS-TRIAL-INSTRUCTIONS.

In trespass for removing fences from premises claimed by plaintiff, and alleged by defendant to be a highway, the court instructed that "on the part of plaintiff, * ** who has the burden of proof to show that a wrong has been committed against him, the issue becoming one as to whether this was a public and lawful way, the plaintiff claims that it was not, and that he had a right to inclose the strip of land." In a subsequent part of the charge the jury were told that they must find for plaintiff, unless they found that the road was established as claimed by defendant. Held, that, taking the charge as a whole, plaintiff could not complain that the burden was cast on him to show that the alleged highway was not a lawful road.

Error to Tuscola; Beach, J. Submitted June 20, 1905. (Docket No. 38.) Decided October 2, 1905.

Trespass quare clausum fregit. by John W. Neal against John Gilmore and others. There was judgment for defendants, and plaintiff brings error. Affirmed.

Porter & Haffey (Simonson, Gillett & Clark, of counsel), for appellant.

B. L. Ransford (Quinn & Wixson, of counsel), for appellees.

BLAIR, J. Plaintiff is the owner of the N. E. of the N. E. of section 28, and the S. E. of the S. E. of section 21, in township 14 N., of range 7 E. Plaintiff purchased his north 40 in 1875, and constructed a fence on the south side thereof, about two rods distant from the east and west section line between sections 21 and 28. In 1877 plaintiff circulated a petition for the laying out and establishing of a highway commencing at the State road,