OSBORN v. CITY OF ANN ARBOR. WATERS-MUNICIPAL CORPORATIONS-RIPARIAN RIGHTS-DIVERTING STREAM-DEMURRER-APPEAL AND ERROR. Upon a bill in chancery to restrain a municipal corporation from diverting water by artesian wells from the neighbor. hood of complainant's wells, an order overruling defendant's demurrer is affirmed in order that proofs may be taken to assist the court in determining the question, because of its great importance in this State. Appeal from Washtenaw; Kinne, J. Submitted October 14, 1915. (Docket No. 82.) Decided December 21, 1915. Bill by Frederick Osborn and another against the city of Ann Arbor and others for an injunction. From a decree overruling defendants' demurrer, complainants appeal. Affirmed. Andrew J. Sawyer (John W. Dwyer and Arthur Brown, of counsel), for complainants. Frank B. De Vine (A. F. Freeman, of counsel), for defendants. PER CURIAM. The bill of complaint in this cause is filed to restrain the defendant city from taking for public use water from property adjoining the property of the complainants. Complainants claim that in doing this it takes water from the complainants' property and the region thereabout, and thus destroys the value of the land, and deprives the owner of the land of the water for domestic and agricultural purposes, without condemnation proceedings, or without compensating the owner for his loss. An appeal is taken to this court from an order overruling the demurrer filed by the defendant. At the hearing of the case before us it was announced by the court that because of the importance of the questions involved we hesitated to decide the question upon the allegations in the bill of complaint, and therefore would sustain the order overruling the demurrer, so that an answer might be filed and proofs taken. The order overruling the demurrer is affirmed. In re KEENE'S ESTATE. MAYNARD v. KEENE. 1. WILLS-ESTATES OF DECEDENTS-EVIDENCE-DECLARATIONS OF DECEDENT. Where decedent, in her will, cut off her husband, against whom she had filed a bill for divorce, with a gift of $10, giving as a reason, "because he robbed me of money from time to time until I fired him out of the house, and I refused to live with him," the instrument having been lost, mislaid or destroyed, testimony tending to show the alleged state of bad feeling between testatrix and her husband was properly admitted to assist the jury in determining the issue, which was whether or not the will had been revoked.1 2. SAME-SUBSCRIBING WITNESS-EFFECT OF BEQUEST TO WITNESS. Where decedent in drafting her will placed certain property in trust for two minor children of her brother, the effect of having the trustee appear as a subscribing witness did not necessarily bear on the issue whether or not the will had been executed and later revoked; nor was the validity of the bequest a question to be submitted to the jury. 'On evidence to establish lost or destroyed will, see note in 38 L. R. A. 433. 189 Mich.-7. 3. SAME-REVOCATION-DESTRUCTION OR LOSS OF INSTRUMENT. If it is shown that after a proper search the will of a testatrix cannot be found and it cannot be traced out of the possession of deceased, the presumption of revocation may be aided by evidence of declarations made by the testatrix. The question becomes an issue of fact for the jury. 4. SAME. Where there was evidence in the record to prove the testatrix had frequently stated to her relatives, prior to her last illness, that she had so arranged her affairs as that her brother's children should receive the bulk of her property, and there was evidence tending to show her antipathy toward her husband, the trial court was justified in submitting to the jury the testimony which had some tendency to disprove revocation as alleged by contestant. 5. APPEAL AND ERROR-NEW TRIAL-EXCEPTIONS-SAVING QUESTIONS FOR REVIEW-RECORD BILL OF EXCEPTIONS. The bill of exceptions in a proceeding to review, in the Supreme Court, by writ of error, the denial of a motion for a new trial, under 3 Comp. Laws, § 10504, should contain all proceedings upon such motion, including the reasons given by the trial court and exceptions taken to the refusal, and failure to do so precluded the review of the finding of the court, although counsel incorporated such exceptions in the printed record. Error to Muskegon; Sullivan, J. Submitted October 15, 1915. (Docket No. 113.) Decided December 21, 1915. Frank Maynard presented for probate the alleged will of Alice Maynard Keene, deceased, and Gust Keene, contestant, appealed to the circuit court. Judgment for proponent and contestant brings error. firmed. Sutherland, Johnson & Sessions, for appellant. Af KUHN, J. The decedent, Alice Maynard Keene, at the time of her death had been a resident of the city of Muskegon for approximately 20 years. During that time she had accumulated considerable real estate, and had been proprietress of several houses of questionable reputation in that city. She had a brother, Frank Maynard, who was married and had three children. She had known the contestant, Gust Keene, her husband, for many years before he came to Muskegon in 1907, and married him in Chicago in 1911. She lived with him until May, 1912, when they separated. In July she filed a bill for divorce against him in the circuit court for the county of Muskegon, which was dismissed in April, 1913, by the trial court after hearing the testimony. In November, 1913, she commenced another suit in the circuit court in the county of Kent against him for divorce, which apparently was pending at the time of her death. In the year 1900 she had a will prepared, by the terms of which her property went to her brother, with certian provisos, and in the fall of 1912 she went to the office of Mr. John H. Banninga, who is the manager of a real estate company in the city of Muskegon, and asked him to prepare a will for her. Mr. Banninga, who had advised her for several years concerning some of her business matters, met her by appointment, and after she produced her old will he took a. blank form of will and made a lead pencil memoran-dum or copy of what she wanted. On the next evening a pen and ink copy was made, and that evening the decedent again came to his office, where the will was read over to her, and while waiting for a person who had been asked to be a witness of the will, she also read it over. Subsequently a Mr. Matthew H. Steiner was called in and, together with Mr. Banninga, witnessed the will, which was signed and executed that evening. The will was then put in an envelope and sealed and locked in a box in a vault of the Wood Real Estate Company, and the old will was at that time de stroyed and put in the stove by the decedent. It appears from the testimony that during these two visits to Mr. Banninga's office she stated that she wanted the property to go to her brother's children, as her brother, Frank Maynard, was the victim of a drug habit, and that her husband had robbed and abused her, and that she had been compelled to file a bill for divorce against him. In November, 1913, she again went to the office of Mr. Banninga and told him that she was going to Waterloo, Iowa, where her brother, Frank Maynard, was living; that she wanted to take the will with her in order to show them how she had disposed of her property, and reiterated her hatred toward her husband. While in Waterloo she read the will over to Mrs. Maynard, who saw it, and whom she told that the children would get practically all the property, and that she wished the children to be sent to a convent. Mrs. Maynard also testified that the decedent was apparently not on friendly terms with Mr. Keene, as she did not speak kindly of him at all, but used profanity when talking about him. The decedent arrived in Waterloo about three weeks before Thanksgiving, and on the Saturday before Thanksgiving she left Waterloo for Chicago, intending to go from Chicago to Grand Rapids. After arriving in Chicago she wrote her brother from a hotel and requested him to send the baggage check for her trunk, which had not left on the same train that she had. This was the last heard of her by her family until a few days later, when Frank Maynard received a telegram from Grand Rapids that she was dead. She died in the home of Mrs. Mamie Burress, where she spent about eight days, and was sick practically all the time she was there. After her death no will was found, and upon petition of Frank Maynard a special administrator was appointed in December, 1913. In June, 1914, Mr. Banninga discovered the |