47 Minn. 171 | Minn. | 1891
Upon the 8th day of January, 1887, one James Burns, of the city of St. Paul, duly executed and published his last will and testament, whereby he devised his estate, consisting of a lot in the city of St. Paul, with buildings thereon, to his two daughters, who are the parties to this action. Upon his decease Mrs. Burch, the defendant, who is named as executrix in the will, petitioned the probate court for its allowance. Her application was denied, and an .•appeal taken by the executrix to the district court, where, upon a.full hearing, the court reversed the decision of the probate court, and directed the will to be admitted to probate.
The legal questions involved in the case arise chiefly upon the following facts found by the district court: After the execution of the will, the decedent demanded of Mrs. Burch, who had custody of the will, that it be delivered to him to be destroyed. Upon its delivery to him, he placed it, inclosed in an envelope, in a stove, with kin-dlings not yet ignited, with the intention of destroying the will by burning when the fire should be lighted. The facts were found by the court as follows: (1) “This was done in the presence of said Bridget F. Burch, and-with the express and actual intention on the part of said decedent to destroy said will by burning when said fire should be lighted. Said decedent then stepped for a moment out of the room, and thereupon said proponent Burch, fraudulently, and with the purpose of thwarting the said intention of decedent, and without his knowledge or consent, took the will out of the envelope, and secreted it, leaving the envelope in the stove to all appearances as though it still .contained the will. Within two hours thereafter the
The statutory provisions in respect to the revocation of wills areas follows. Gen. St. 1878, c. 47, § 9: “No will, or any part thereof, shall be revoked unless by burning, tearing, cancelling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some will, codicil, or other writing, signed, attested, and subscribed in the-manner provided for the execution of a will; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.”' In this case the purpose of the testator to burn his will is clearly shown, but the will remains intact. It was not scorched or mutilated in any degree. The testator did not persist in carrying out his expressed purpose, nor see to it that it was actually burned, wholly or partially. The acts which the statute declares shall constitute an express revocation were none of them done. If in any case, in the-absence of any of the acts specified in the statute, the fraud of the devisee could be held to supply the place of such acts, the record before
2. Under the clause saving revocations, “implied by law from subsequent changes in the condition or circumstances of the testator,” it is claimed that the conveyance to Mrs. Burch above referred to, and which was set aside by the court on the ground of undue influence, must be construed as an implied revocation of the will in question. Of course, a sale of the estate devised must operate as a revocation, for the will cannot thereafter take effect, on it; and it is admitted that, if the deed had been valid and effectual to convey the premises, it would have worked a revocation; but the respondent insists that the rule is not applicable to a deed adjudged invalid, and not the deed of the grantor, for fraud or undue influence. If, in opposition to the allowance of a will in probate proceedings, a
In this case the court found that the decedent was old and feeble, in ill health, and addicted to the habitual use of intoxicating liquors, though not of unsound mind, and that the deed was set aside
3. It is further insisted that, by reason of the fraud and misconduct of the defendant in preventing the revocation of the will, the court should have adjudged her not entitled to take her distributive share, or that she should be declared a trustee ex maleficio, and that it should have been so determined on the appeal in the district court, which, sitting as a court of equity, had full jurisdiction to try and determine the issue. This is an erroneous view of the jurisdiction of the probate court in proceedings for the proof and allowance of a will.- The question was considered and determined in Greenwood v. Murray, 26 Minn. 259, (2 N. W. Rep. 945,) in which it is held that “the probate court has exclusive jurisdiction, in the first instance, to take proof of wills of real and personal estate. The decree of that court establishing a will is, unless reversed on appeal, conclusive that it was duly executed by the person whose will it purports to be, and that such person had legal capacity to execute it. But the probate decides nothing beyond this. The legal effect of the will or of its various provisions, its construction and operation, do not come in question, and cannot be passed upon, on an application to admit the will to probate. The probate court does not assume to'
Judgment affirmed.