184 N.W. 1 | S.D. | 1921
Lead Opinion
In this case it appears that the testatrix was German, who could not speak or understand the English language. The will was drawn up and executed in the office of her attorney, who called the subscribing witnesses. After the will was prepared, one of the subscribing witnesses, one Mittelstaedt, who spoke both German and English, read over the instrument, and then read and interpreted the substance thereof in German to decedent, and then and there in German explained to her the disposing parts of said will, explaining to her what was in the instrument, and the manner in which she was disposing of her property, and that she then and there said in German that that was according to her wishes, and nodded her assent thereto, and she then and there signed and executed the instrument in the presence of both the subscribing witnesses. Thereafter Mittelstaedt signed the said instrument as a subscribing witness. Thereafter McKenna, then an employee in the office of the attorney who
“There was no very satisfactory evidence that at the time of its execution the deceased made an express declaration to the subscribing witnesses that the document executed was her will, or expressly requested them to attest it. But an express declaration and request are not absolutely necessaiw. It is sufficient if, at the time, she did, by words or conduct, convey to -them the information that the instrument was her will, and that she desired them to attest it as witnesses.”
In the case of Brengle v. Tucker, 114 Md. 597, 80 Atl. 224, among other things the court said:
“The statute requires that the testator shall request the subscribing witnesses to attest his will; but it is not necessary that he should in terms ask them to sign, as other facts may constitute a legal request on his part.”
See Gross v. Burneston, 91 Md. 383, 46 Atl. 993; Craig v. Trotter, 252 Ill. 228, 96 N. E. 1003; 7 Words and Phrases, First Series, 6121.
Finding no error in the record, the judgment and order appealed from are affirmed.
Dissenting Opinion
(dissenting.) I can find no evidence showing that Mittelstaedt ever read the whole will himself or translated