old pencil copy of the will, which he had made, in his desk, and a petition was then filed in the probate court for the county of Muskegon to establish this lost will. It was duly certified to the circuit court, where it was brought on trial, and the will established by the verdict of the jury, and judgment entered thereon.

The first group of assignments of error relate to testimony which was received over objection, admitted for the purpose of showing the alleged enmity that Mrs. Keene had in her lifetime toward her husband, the contestant. The will contained the following bequest:

"I give, devise, and bequeath to my husband, Gust Keene, the sum of ten ($10.00) dollars, or the sum of one hundred ($100.00) dollars [the $100 is then scratched out, and ten written above it], and no more, 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."

It is practically undisputed in this case that the will in question was made, and the real question in dispute was whether or not it had ever been revoked. We think that the testimony here objected to was competent as bearing upon the question of the revocation of the will.

The bulk of the property, by the terms of the will, was bequeathed to the children of Frank and Nellie Maynard, to be held in trust by the executor named in the will until said children reached the age of 21 years, if the executor deemed best. John H. Banninga was named as executor, and also was one of the subscribing witnesses thereto.

The trial court denied a request to charge the jury that the bequest in trust to John H. Banninga for the children of Frank and Nellie Maynard was void because he is one of the two subscribing witnesses to the will, and instructed the jury as follows:

"In relation to John H. Banninga having been mentioned in the will, or the copy that is said here, as the executor or as trustee, as far as that is concerned, that does not make any difference, excepting, perhaps, the weight to be given to his testimony. If he actually subscribed the will, and Steiner subscribed the will, and Mrs. Maynard subscribed the will, what effect that may have upon the will is not for the jury."

Reliance is placed by counsel for the appellant upon section 9268, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10981), which provides:

"All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void, unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts, shall not prevent his creditors from being competent witnesses to his will."

We do not think it is necessary at this time to determine whether the vesting of this property in Mr. Banninga as trustee for such a period is such a beneficial interest given by the will as to bring it within the prohibition of the statute above quoted. The questions here for the jury to determine were whether or not such a will had been legally executed, and whether it had been revoked. We agree with the instructions of the trial judge that the question of the validity of this bequest was not a proper matter for the jury to consider in the case before them.

It is the claim of the appellant that a verdict should have been directed for the contestant after the proponents had rested their case, and that no competent testimony was introduced to outweigh the presumption of revocation which arose because of the failure to discover the will. It is without question the rule of law that, where a will cannot be found at the death of the testator upon proper search being made, and especially where the will is not traced out of the possession of

the testator, it is to be presumed that it was destroyed by him animo revocanda. But it is also established in this State that this presumption of revocation can be met by declarations of the testator. It was said in Ewing v. McIntyre, 141 Mich. 506, 517 (104 N. W. 791):

"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 numerous cases].

"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 [77 Am. Dec. 460]; Harring v. Allen, 25 Mich. 505; In re Hope, 48 Mich. 518 [12 N. W. 682]; In re Lambie's Estate, 97 Mich. 50 [56 N. W. 223]; Cheever v. North, 106 Mich. 390 [64 N. W. 455], 37 L. R. A. 561 [58 Am. St. Rep. 499]."

It was also said in Re Foerster's Estate, 177 Mich. 574, on page 585 (143 N. W. 616, on page 620):

"Whether or not the presumption of revocation is rebutted is a question for the jury. Thornton on Lost Wills, § 73, citing cases."

There is evidence in this record to show that from the time that the testatrix executed the will until she lay upon her deathbed, she told her friends and relatives that she had had her affairs so arranged that her brother's children would get the bulk of her property. Mrs. Burress, at whose house she died, testified:

"She said she had things fixed in case anything happened to her, and that it would go to her brother's children, and she spoke especially of Olgy, the oldest one. She seemed to be more in favor of him.

"Q. But she said that it would go to her brother's children?

"A. Yes; her brother's children. She did not speak anything about him or about his wife to me.

"Q. I will ask you whether or not she said that to you the day she died?

"A. Yes; she did.

"Q. And whether or not she said that to you several times before that.

"A. Several times; there was not a day that she did not talk about it."

Considering also her repeated statements concerning her husband, the contestant, which showed a feeling of antipathy on her part toward him, the fact that at the time of her death divorce proceedings were pending, we are of the opinion that the testimony raised a question of fact which we think the trial judge was clearly justified in submitting to the jury.

The counsel for contestant made two motions for a new trial; the second motion being accompanied by various affidavits and supplemental affidavits. Both these motions were denied by the trial judge, and the denials of these motions are assigned as error by proper assignments. Neither the motions for a new trial, nor the orders denying the new trial, nor the affidavits in support of the second motion for a new trial, nor the exceptions to the findings of the court denying a new trial are made a part of the bill of exceptions, but are found in the printed record. The only reference thereto in the bill of exceptions certified to by the trial judge is his statement giving the reasons for the denial of the second motion for a new trial. Counsel for appellee contend that under the decisions of this court the exceptions to the denial of the motion for a new trial, not being in the bill of exceptions as certified to by the trial judge, are not properly a part of the record, and should not now be considered, and attention is called to the statute (section 10504, 3 Comp. Laws) which reads as follows:

"SECTION 1. The people of the State of Michigan enact, That in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a

new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court."

Stevens, in his work on Michigan Practice, says with reference to the preparation of the bill of exceptions (Vol. 2), on page 476:

"The denial of a motion for new trial may, since the statute of 1893, be set forth in a bill of exceptions, for review by the Supreme Court. In such case 'a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial,' may be incorporated. The bill of exceptions should contain: (1) The motion and the affidavits filed in support of and against it; (2) the order denying the motion and the reasons given by the trial judge for its denial; (3) the exceptions taken by appellant to the denial. While all these documents are a part of the records and files of the cause, the statute seems to contemplate that they shall be incorporated in the bill of exceptions.'

See, also, 2 Green's Michigan Practice (3d Ed.), p. 1145.

We are of the opinion that the author has come to the right conclusion in saying that it is apparent from a reading of the statute that the exceptions to the denial of a motion for a new trial and all proceedings with reference thereto should be incorporated in the bill of exceptions. Counsel urge that, because these various papers are printed in the printed record here filed, that is sufficient, because in various decisions of this court the word "record" is used indiscriminately with the words "bill of exceptions" in holding that the reasons for denying a motion for a new trial must be in the record. However, it must be clear that, when