"(6) That it does not appear to the court herein that justice requires a revision of the case.

"(7) That there is no error of law appearing on the face of the decree for which a bill of review should be allowed to be filed.

"(8) That the alleged new facts, claimed to have been discovered since the decree was entered in this cause, are not sufficiently material to invoke the discretion of this court to reopen the case and permit the filing of a bill of review therein.

"(9) That it does not appear to the court that it was impossible for the said petitioner to produce the alleged new facts at the time the decree was rendered in this

cause.

"(10) That the alleged newly-discovered evidence was, or might have been by reasonable diligence, known to petitioner and her counsel at the time of the hearing of the original bill.

(11) That the petition for leave to file a bill of review is being used as a substitute for an appeal in this cause."

The second petition for extension of time was denied for the reasons, among others, following:

"(4) That the original cause was carefully and ably tried and fully presented by counsel for petitioner upon the hearing of the cause.

"(5) That the opinion, decision, and the decree based thereon were in accordance with the testimony produced at the hearing.

"(6) That the showing made by petitioner in the application herein is insufficient in matter and form to warrant this court in granting the order asked for.

"(7) That it does not appear to the court herein that justice required a revision of the case.

"(8) That the equities in the matter herein are with the complainant, and not with the defendant petitioner herein, and that the discretion of this court in the matter of this application, under all the facts and circumstances herein, ought to be exercised in favor of the complainant and against the defendant."

Counsel for appellant and relator presented for our examination upon the oral argument, and comment in their briefs upon, testimony and rulings of the court as shown by the stenographer's transcript. The petitions were

not based upon such transcript, and we, therefore, cannot consider it. The power of the court in granting or denying an application for leave to file a bill of review is largely discretionary, and his determination ought only to be overruled where such discretion has been abused. Stockley v. Stockley, 93 Mich. 307 (53 N. W. 523).

The substantial basis for the application for leave to file the bill of review is newly-discovered evidence, and we are satisfied from the affidavits with the correctness of the court's determination that the alleged newly-discovered evidence might have been discovered by the use of reasonable diligence. We also agree with the finding "that the petition for leave to file a bill of review is being used as a substitute for an appeal in this cause."

It was said in Simmons v. Conklin, 129 Mich. 190 (88 N. W. 625):

"It is unfortunate that a party should lose his opportunity to appeal without his own fault, but we cannot relieve, in such a case as this, without practically nullifying the statute. While, as shown in Barnes v. Kent Circuit Judge, 97 Mich. 212 (56 N. W. 599), this petition was seasonably made, it is apparent that it is being used as a substitute for an appeal, and it cannot be granted upon such a ground. The court will be slow to grant a petition for leave to file a bill of review in a case where the time for taking an appeal has been allowed to pass before filing it."

We think there was no abuse of discretion in this matter.

The principal ground for the petition for an extension of time to appeal is the negligence or default of defendants' solicitors in not taking the appeal. While we might not have been disposed to question the exercise of his discretion if the circuit judge had granted this petition on the ground that defendant had been deprived of her appeal because of the default of her solicitors, and without fault on her part (see Merriman v. Jackson Circuit Judge, 96 Mich. 603 [55 N. W. 1021]), it does not follow that the court abused its discretion in denying the appli

cation. Defendant has had her day in court. The circuit judge finds that the case "was carefully and ably tried and fully presented by counsel for petitioner," that justice does not require a revision of the case, and that the equities are with the complainant, and not with the defendants. Mrs. Bousquet left, besides Mrs. Roberge and Mrs. De Lisle, four other adult children, who, under the decree, will share alike in the small estate, which is likely to be dissipated if this litigation continues. The application for an extension of time is addressed to the sound discretion of the court, and we are unable to find any abuse of such discretion. Lake Shore, etc., R. Co. v. Branch Circuit Judge, 116 Mich. 399 (74 N. W. 529); Carrier v. Emmet Circuit Judge, 155 Mich. 344 (119 N. W. 575).

The orders of the circuit court are affirmed.

GRANT, MONTGOMERY, MCALVAY, and BROOKE, JJ., concurred.

In re POPPLETON'S ESTATE.

APPEAL OF POPPLETON.

1. NEW TRIAL-WEIGHT OF EVIDENCE.

The verdict sustaining the validity of a last will and testament of an aged woman of 92 years is held not to be against the weight of the evidence.

2. WILLS — VALIDITY — MOTIVE — UNREASONABLE DISPOSITION OF ESTATE.

A will which disinherits a daughter who had received from the testator and other sources an equal amount with her brothers, is not an unnatural or unreasonable disposition of the estate.

3. SAME-MOTIVE-UNDUE INFLUENCE-INCOMPETENCY. It is not error prejudicial to the contestant to instruct the jury that they might find a motive for excluding a daughter from a share in the property of her mother in the fact that the daughter removed property from her mother's home without permission, or in the fact that she used unkind language in an interview with the mother; no motive being necessary to warrant the testatrix in disposing of her property as she might see fit.

4. TRIAL WILLS-UNDUE INFLUENCE.

Argumentative statements by the trial court to the jury that proponent has no such interest in the will as his brother, who was a beneficiary, accompanied by statements to the effect that proponent had on certain occasions, not shown by the testimony, conducted himself laudably, were prejudicial error upon an issue of undue influence and mental incompetency, where the proponent had been his testator's confidential adviser and had failed to take the stand to rebut the presumption of undue influence.

Error to Oakland; Smith, J.

Submitted June 17,

1909. (Docket No. 12.) Decided July 15, 1909.

Herbert A. Poppleton presented for probate the last will and testament of Sarah Poppleton, deceased. The will was allowed in the probate court, and Ella Poppleton appealed to the circuit court. A judgment for proponent is reviewed by contestant on writ of error.

Robert M. Brownson, for appellant.

Reversed.

John H. Patterson and Beaumont, Smith & Harris, for appellees.

BLAIR, C. J. Sarah Poppleton died at her home in the village of Birmingham, Oakland county, on June 3, 1907, at the age of 92 years. She left a will, executed March 4, 1891, to which had been added three codicils. By the will testatrix gave one-fourth of her estate to her son, Edgar Poppleton, in trust, to pay the net income thereof to the contestant, her daughter Ella, during her lifetime; the principal, after Ella's death, to go to Edgar

and his brother, Herbert. The remaining three-fourths of her estate she willed to Edgar and Herbert equally. The first codicil, executed February 5, 1895, reads as follows:

"Up to this date I have given my son Edgar C. that portion of my estate which I wish him to have. What is left he will report faithfully, and that part I wish divided according to the full terms of this will among the other two children. But this is not intended to deprive said son Edgar C. from heirship right, in case of the death of Herbert or Ella."

The second codicil, executed December 26, 1896, provided, in substance, that if Ella or Herbert should contest the will or codicils, or if Ella should attempt to remove the trustee named therein, their share or shares thereunder should be revoked and go to others. December 1, 1904, testatrix executed a third codicil containing the following provisions:

"First. I hereby revoke such provisions of my said last will and testament as gives to my daughter, Ella, any share or portion of my property and I hereby leave her nothing by my last will and testament.

"Second. All the property which my daughter, Ella, would have been entitled to at my death under the provisions made for her in my said last will and testament, if the same were not hereby revoked, I give and bequeath to my sons, Edgar C. Poppleton and Herbert A. Poppleton, in equal shares.

"Third. I have already delivered my securities to Edgar C. Poppleton with instructions to make such a division between himself and my son Herbert A. Popple

ton.

"Fourth. I request that my said sons pay to my said daughter, Ella, such a sum of money annually as each may deem best, on or about the first of January of each year during her life, but this is a request merely and it is not obligatory upon my said sons nor a condition of this instrument."

At the time of her death testatrix's estate amounted to about $80,000, and was handled, and had been for many years, by Edgar as her confidential adviser and