171 N.W. 101 | N.D. | 1919
Lead Opinion
Appeal from the district court of Mountrail county, North Dakota, Frank E. Fisk, Judge.
The action is one which involves the construction of a will. A full statement of the facts will greatly aid in understanding the case. Herman Fred Gerwien of Mountrail county, North Dakota, died the 24th day of February, 1.916, at Powers Lake, North Dakota. He left a will in writing which was his last will and testament, in which he appointed II. E. Edwardson as executor. His heirs at law were his father, five sisters, two brothers, and a niece. The testator died seised of certain real and personal property. The testator by will divided and bequeathed all his real property to Ruth Gerwien, daughter of Lydia Gerwien, and Lydia Gerwien, by specific bequests as shown by the will, and all of the personal property to Ruth Gerwien. The. petition shows the probable value of the real estate to be $3,500, and the yearly rents, profits, or income of the probable value of $100. It also shows the value of the personal estate to be about $1,600.
Objections were filed to the petition to prove the will by Lydia Ger-wien, Fred W. Gerwien, Fred Gerwien, and Edward H. Gerwien. The cross petition was interposed by Edward II. Gerwein, Lydia Gerwein, Fred W. Gerwien, and Fred Gerwien. The case was first tried in the
The questions presented in this appeal are: First, whether the testator made sufficient publication of his will; second, whether he had sufficient mental capacity at the time of the execution and making of the will to make the same. As to the first question relating to the proper and legal publication of the will, we are fully convinced, after a thorough examination of the evidence and the law relative thereto, that there was a sufficient publication of the will. Subdivision 3 of § 5649, Comp. Laws 1913, reads as follows: “The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will.”
The will was properly executed. The testator properly signed it in the presence of two witnesses, each' of whom witnessed the same in the testator’s presence. What is the signification of the word “declare” as used in the above section? We are of the opinion that the word “declare” as used there signifies any act on the part of the testator which would show or make known to others, such as witnesses to the will or other persons present, that the instrument which the testator signed is his will, and that he understands and intends it as .such. In declaring the same to be his will, the testator is not required to do so by words, but he may by other means than the use of words, such as the use of signs, gestures, or any other means by which the testator can convey and make known to the witnesses or others present that the instrument which he signs is his will. Lane v. Lane, 95 N. Y. 494. The word “declare” as used in our statute does not mean that one must speak. It means to make known, to signify, to show in any manner either by words or acts. This must be true, otherwise there would be many cases where the testator, having capacity to make a will, could not make one if the word “declare” in our statute means what appellant contends, which, in substance, is that the testator must audibly declare by spoken words that the instrument which he signs in the
We pi’oceed to consider the second main question in the case. The appellant very strenuously contends that the testator at tbe time of tbe making of tbe will in question, was without capacity to make it. This, for the reason that the testator is claimed to have been of unsound mind, in this that he was laboring under certain insane delusions, prominent among which, appellants claim, is that be believed that bis, relatives were striving to get bis property away from him, and to starve him, and other alleged insane delusions which testator was claimed to have bad for considerable length of time prior to and including the time of tbe making of bis will. There was considerable testimony introduced at tbe trial for the purpose of proving that tbe testator was possessed of tbe insane delusions referred to. Tbe very serious question
Neither can the court say that the testator was insane at the time he made his will. It must be presumed that he was sane until the contrary
We are fully convinced that the judgment of the District Court should be affirmed, and it is affirmed, with statutory costs.
Concurrence Opinion
(concurring specially). Appellants contend that the will involved in this controversy is invalid: (1) Because there was no sufficient publication thereof; and (2) because the testator was insane and hence incapable of making a will. Both questions were decided against the contentions of the appellants both by the county and the district courts. And, in my opinion, the findings of the trial court are amply sustained by the evidence, and the judgment should be affirmed.