191 N.W. 343 | N.D. | 1922
Lead Opinion
Statement.
This is a proceeding contesting the probate of a will. The county court, after extended hearings, allowed the will. Upon
The facts are: Peter Larson, the deceased, of Swedish nationality, settled in Burleigh county, some thirty-five years ago, upon a homestead; there, as a bachelor, he lived and died in October, 1919; the Erickson family were his neighbors; the will in question is dated Jan. 29th, 1900; it was written with pen and ink by the beneficiary, and was signed by her mother and her brother as witnesses; it is in the Swedish language. Translated, it reads as follows: “I, the undersigned, bequeath all my property to Miss Ánnetta I. E. Erickson, daughter of Mr. N. Erickson of Grass Lake township, Slaughter, Bur-leigh county, North Dakota, which she shall be heir to after my death,”' In county court, the special administrator objected to the allowance of the will upon grounds of fraud, undue influence, and that the will was not the will of the deceased. The heirs objected upon grounds of fraud and undue influence. The county court found that the deceased was a citizen of Burleigh county and of the United States for twenty years prior to his death. That he was on friendly terms with the petitioner’s family; that he was of sound and disposing mind up to and including the time of making the will; that he lived alone during the last fifteen years of his life; that he received friendly assistance in his farm labor and housekeeping from the plaintiff and her brothers, and was very friendly to the plaintiff; that at the time of making the will he was entertaining the firm belief that his sisters in the old country had divided up the property left by his father and mother and had given him no portion thereof; that at the time of the execution of the will it was his intention not to give his relatives in Sweden any portion of his property; that the will was duly executed by deceased, free from fraud or undue influence.
At the trial in the district court it was stipulated that a jury be waived and the proceeding tried to the court; that the testimony of any witness taken in tire county court might be offered and received in evidence in the district court in lieu of the oral testimony of the witnesses; that, further, if either party desired to further cross-examine
Opinion.
This appeal is not triable de novo in this court. It is before this court with the presumptions that attach to the findings of the trial court with a jury waived. Such findings are presumed to be correct unless clearly opposed to the preponderance of the testimony. Riedlinger v. Feil, 48 N. D. 908, 187 N. W. 963, and cases cited. Upon a review of the entire record which is voluminous, we are unable to find that the findings of the trial court are clearly opposed to the preponderance of the testimony. The sole question involved is whether the signature to the will is a forgery. The banker, with whom the deceased did his business, pronounces it genuine. Likewise, two other bankers so agreed. The Erickson family, including the petitioner, testify directly that the deceased signed such will at their home and detail circumstances concerning the wishes and desires of the deceased to give his property to the plaintiff. Three other witnesses including a doctor who had been the physician of the deceased during his lifetime, testified to conversations with the deceased wherein he had declared
In a dissenting opinion, it is stated that it is the duty of this court to try the case anew; yet the author of such dissent signed the opinion in Riedlinger v. Feil, 48 N. D. 908, 187 N. W. 964, where this court unanimously and specifically held that a will contest is not triable-anew in this court. The dissenter departs from the record in building up an individual theory that the signature of the testator was valid, but. that the contents of the will was written over the genuine signature. There is neither any issue, nor any testimony in the record in this regard. The parties do not even suggest in their briefs such matter. The dissenter states that there was neither claim nor proof that the deceased was under any special obligation to the beneficiary, or to her brother,, or her mother. The record is voluminous. No attempt will be made to set forth the evidence at length. Suffice it to say that the record discloses evidence prior to, and ever since the making of the will that the Erickson family sustained very friendly relations with the deceased; that they furnished to him help and assistance. Particularly was the deceased friendly to beneficiary, ever since her childhood. In his loneliness he was comforted by them. There is evidence 'that the deceased felt a debt of gratitude towards the Erickson family. There is not even one letter in the record to show that his relatives had any solicitude-whatever for him. As stated before three witnesses gave evidence that deceased had stated that he had made a will in behalf of the beneficiary.
Dissenting Opinion
(dissenting). This is an appeal from a judgment allowing a purported will in favor of "Miss Erickson. The case was properly tried before the court without a jury and the duty of tbis court is to try the case anew. In any event, we may not wash our hands and sanction a wrong. The will is a manifest forgery. It is written over the genuine signature of the alleged testator. It is written on a thin scrap of paper about 4x6 inches. It is written by the beneficiary and witnessed by her mother and her brother, who is likewise a beneficiary, though not named as such in the will. If sustained, each witness receives several thousand dollars, a big reward for testimony which, whether true or false, was given with perfect safety. The testimony has no convincing force because of its inherent improbability and because in this age men and women have little or no fear of God or Devil. Eor much less than a thousand dollars men will testify to most anything when they can do it with perfect safety. In this case there áre probabilities which far outweigh the oral testimony. The plaintiff had living brothers and sisters, and blood is thicker than water. A man does not give away a good property to a stranger unless he has some special reason. There is no claim or proof that the deceased was under any special obligations to either the beneficiary named in the will, the person who wrote it, or to her brother, who signed it as a witness, or to her mother. She was not his affianced wife, his common-law wife, or even his lady friend. There were no ties or obligations of love, either hallowed or unhallowed. There was not even a shade of romaneo, and when the poor man died within almost a stone’s throw of these beneficiaries. They did not discover his- remains for several days, until the cats had eaten a large part of his body.
