189 N.W. 690 | N.D. | 1922
Lead Opinion
This is an appeal from a judgment of the district court of Ward county admitting a will to probate. The facts necessary to a proper understanding of the questions presented on the
There is no question that Joseph Reichert was a very sick man both at the time he executed the first and the second will. He had received the last sacrament before he executed the first will. After he had made the first will be asked one of his attending physicians to write the respondent, and in compliance with this request, the physician, on February 23d, 1920, wrote her as follows: “Minot, N. D. Feb. 23, 1920. Miss Keller: Joe Reichert is very sick with pneumonia and he wants you to come on first train. He is in St. Joseph’s hospital in Minot, (signed) Dr. A. Carr.”
Thereafter on February 24th, 1920, at his request the following telegram was sent to her: “Joseph Reichert seriously ill at St. Joseph’s hospital, Come at once. St. Joseph’s Hospital.”
She received both the telegram and the letter on the morning of February 24th, 1920, and took the first train to Minot. The train was late and she did not arrive until about 4 o’clock in the afternoon. She at once went to Reichert’s room in the hospital. He informed her that he had made a will, and according to her testimony, stated that he wanted to change the will which he had made, and she, in accordance
It is further contended that the testimony of the respondent was incompetent under § 5680, Comp. Laws, 1913, which provides that “all beneficial devices, legacies, or gifts whatever made or given in any will to a subscribing witness thereto are void unless there arc two other competent subscribing witnesses to the same.” It is further contended that the respondent failed to sustain the burden of proof; that this court should say as a matter of law that the testator was without mental capacity to make a will, 'and that there was no legal publication of the will. These propositions will be considered in the order stated.
The first question presented for determination is whether § 7871, Comp. Laws, 1913, inhibited the respondent Mary Keller, from testifying with respect to the preparation, signing and publication of the will in question. That section so far as material here reads as follows : “No person offered as a witness in any action or proceeding in
After a careful consideration of this question, we are of the opinion that this statute did not render Miss Keller’s testimony inadmissible. The general policy of the statute is to make all persons competent witnesses in all actions and proceedings in any of the courts of this state. There are certain exceptions to this general policy which are enumerated in the statute. The only way in which we can ascertain the scope of the exceptions is to look beyond such language, and enlarge the exception which the lawmakers have prescribed, St. John v. Lolland, 5 N. D. 140, 143, 64 N. W. 930. The statute by its express terms applies only to a “civil action or proceeding by or against executors, administrators, heirs at law, or next of kin in which judgment may be rendered or ordered for or against them.” Mowry v. Gold Stabeek Co. 48 N. D. 764, 186 N. W. 865. The probate of a will clearly does not come within the terms of the statute; That is not a claim or demand which arose out of any transaction with the testator during his lifetime, existing at his death, and which might be enforced against him if living, and which his executors, administrators, heirs at law, or next of kin are compelled to prosecute or defend in his place. That is a judicial inquiry whether the instrument before the court is the last will and testament of the deceased, and en
Much of wbat bas been said with respect to § 7871, supra, is also applicable to § 5680, Comp. Laws, 1913. That section by its terms applies only to “a subscribing witness” to tbe will. Tbe respondent, 'Mary Keller, was not a subscribing witness. Hence, tbe section does not apply. Sellards v. Kirby, 82 Kan. 291, 28 L.R.A.(N.S.) 270, 136 Am. St. Rep. 110, 108 Pac. 73, 20 Ann. Cas. 214. See also Mackin v. Mackin, 37 N. J. Eq. 528.
There is some conflict in tbe authorities as to tbe force of tbe implication resulting from tbe fact that one who is a beneficiary under tbe will is active in procuring tbe execution thereof. Tbe various authorities dealing with this question are collated in a note appended to Kirby v. Sellards, 28 L.R.A.(N.S.) 270. See also 28 R. C. L. 144. It is unnecessary to determine which line of authorities should be followed in this state, for tbe court in its instructions herein in effect stated that Mary Keller bad tbe burden of proving that tbe will was not executed by tbe testator as a result of fraud or undue influence on her part. Hence, tbe instructions given were as favorable to tbe appellants as they were entitled to under any of tbe legal theories ap* plicable where tbe beneficiary under a will is also active in the preparation thereof. Tbe jury guided by these instructions, in answer to specific questions, said that no fraud or undue influence bad been exercised. They, also, said that tbe will was prepared in accordance with instructions given by tbe testator on tbe afternoon of February 24th, 1920; that at tbe time be gave such instructions be fully understood wbat be was doing and knew wbat property be possessed and to whom be desired to leave it under bis will; that be knew and understood tbe nature of tbe business in which he was engaged; that the will in suit was prepared in accordance with and pursuant to tbe instructions be so gave; that it was read over, and tbe contents thereof fully' explained, to him an hour before be signed it; that at tbe time be signed it or immediately prior thereto or thereafter be declared to the two attesting witnesses that it was bis last will and testament, and be signed tbe same in the presence of such two subscribing witnesses, and that they thereupon in bis presence and in tbe presence of each other signed their names thereto as subscribing witnesses.
“Minot, N. D. Feb. 24, 1920. My dear Mary: Will write you a line to let you know that I am considered to be quite low. I got a private room now. Well, Mary, I wish you could come up and spend a few days. I have got all the sacraments. Well must close. Tour true love. Joseph Reichert. Room 1 on 2 Floor.”
The evidence further shows that during the night preceding the execution of the will, that is during the night intervening February 23d and February 24th, 1920, he caused his nurse to telephone the various hotels to ascertain if Mary Keller had arrived. And the Mother Superior, whose testimony otherwise was not favorable to Mary Keller, stated that when she was in Reichert’s room on February 24th, 1920, he told her that he was waiting for Miss Keller and expected her to arrive. The evidence further shows that at the time he executed the first will he stated to the attorney who prepared it that he might want to change the will and that he particularly indicated that he might want to eliminate one of the sisters entirely as she had not written to him for a long time. The evidence shows that after Miss Keller arrived he suggested to her that they get married at once and that this plan was abandoned because it was found that
“This instrument was on the day of the date thereof, signed, published and declared by said testator Joseph H'. Reichert to be his last will and testament in our presence, who at his request have subscribed our names thereto as witnesses in his presence and in the presence of each other. A. Carr, of Minot, N. D. Frank E. Wheelon, of Minot, N. D.”
In short there is no dispute in the evidence but that the testator signed the will himself, holding the pen in his own hand, without any assistance except on the part of the nurse who held a magazine or some other hard substance under the document when he signed it. According to the testimony of Mary Keller, there was a specific declaration by the testator that this was his last will and testament and a request by him that the two physicians sign the same as subscribing
Concurrence Opinion
(concurring specially). On February 24, 1920, at the Catholic Hospital, in Minot, Joseph Keichert, aged thirty-three,, died of pneumonia. He left land worth $15,000, personal property, $6,000. For two years prior to his decease he was engaged to Mary Keller. He loved her very sincerely and regarded her as his wife. Yet, on February 23, he made a will leaving Mary Keller, $200, to the church, $1,100, to his four married sisters, the rest of his property, $20,000. Then, next day, February 24, he made a second will leaving to Mary Keller all the land, $15,000, to his four sisters, the personal property, $6,000, to his priest, $100. The last will is contested on the ground of undue influence and lack of mental capacity. On the trial in the district court of Ward county the jury found a verdict in favor of Mary Keller. Judgment was duly entered and contestants appeal. It is certain the verdict is well sustained by the evidence. It is certain the first will was made under undue influence,, and that after making it Joseph Keichert had no peace of mind until he met his affianced and made the will in her favor and received her last kiss of love. Then he was happy, as he gave up the struggle for life and expired in a few minutes. After malting the first will he at once caused Dr. Carr to write for Mary, who was at Carrington, North Dakota. Then he sent her a telegram to come at once, and with the greatest impatience he watched and waited for her coming during the long night of February 23 and 24, and in the night sent his nurse
“This instrument was on the day of the date thereof, signed, published and declared by said testator Joseph H. Keichert to be his last will and testament in our presence, who at his request have subscribed our names thereto as witnesses in his presence and in the presence of each other.
A. Carr, of Minot, N. D.
Frank E. Wheelon of Minot, N. D.”
The attestation is short and regular and it is signed by intelligent professional gentlemen. It is fair to assume that they did not subscribe to a false statement. The will is very brief. It is in all respects duly executed. It was drafted in accordance with the directions of the testator by his lawyer, who read the will to him and left it with him two hours before his decease. The testator read the will himself and put it under his pillow. Though his mind was failing, his every thought was on his Mary and on the will. Well might he have said to her:
“One feeling alone to my bosom was true;
Need I say dearest Mary ’twas centered on you.”
Here is a copy of his last letter, mailed at Minot, February 24, at 2:30 p. M., as shown by the clear stamp of the postoffi.ee. It is in his •own handwriting:
“Minot., N. D., Feb. 24, 1920.
My dear Mary:
Will write you a line to let you know that I am considered to be quite low. I got a private room now. Well, Mary, I wish you could*86 come up and spend a few days. I have got all the sacraments. Well must close.
Tour true lover,
Joseph Reichert.
Room 1 ou 2 Floor.”
While the will in question was executed somewhat in extremis, it was read to him and by him and approved in strength and when he . clearly understood it. And he did understand it at the time of signing. The jury found specifically that the will was prepared in accordance with instructions given by Joseph Reichert when he fully understood what property he possessed and to whom he desired to leave it. Certain it is there was no complication. The matter was entirely simple. There was no deception nor undue influence. Aside from the very convincing testimony of Mary, the circumstantial and other evidence do show a valid execution of the will.
Objection was made to her testimony as incompetent under this statute:
Section 7871, Comp. Laws, “In civil actions or proceedings by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them,, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate unless called to testify thereto by the opposite party, etc. . . .”
Such a disqualifying statute should be given a literal and strict construction. This is an action to prove a will. It is not an action against any person. It is in the nature of an action in rem. 40 Cyc. 2266, with citations from twenty states; 28 R. C. L. 510. The minority rule to the contrary shows the natural tendency of some courts to^ adhere to old rules and disqualifications, even though the effect be to suppress the truth and to do a great injustice. This case shows the superior wisdom and justice of the majority rule, because the circumstantial and the direct evidence submitted shows beyond doubt that, the judgment is correct and right.
Dissenting Opinion
(dissenting). The majority opinion finds the testimony of the legatee, Mary Keller, covering conversations with the deceased, admissible; that a proceeding contesting the probate of a wilt
In the pending matter, the estate of the deceased is directly involved. The relationship stated in the statute is affected. The parties are parties only by reason of such relationship.
The statute states “in civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them.” In the original act the statute read in the plural, namely, “in civil actions or proceedings” etc. The contest concerning the probate of a will is a special proceeding. It is so designated by statute. Comp. Laws, 1913, § 8634; Rev. Code 1895, § 6289, art. 2. In the county court the contestant is termed the plaintiff and the contestee, the heirs at law or next of kin, the defendants. The contest is tried like an action. Findings are made and a judgment rendered. Comp. Laws 1913, § 8579. The proceeding falls within the statutory classification of remedies either as actions or as special proceedings. Comp. Laws,
Rehearing
On petition for rehearing.
Appellants have petitioned for a rehearing. They contend: (1) that the testimony of Mary Keller was inadmissible under subdivision 2 of § 7871, Comp. Laws, 1913, and that this court erred in its former opinion in holding to the contrary; and (2) that the testimony of Mary Keller is untrue, should be so considered by this court, and the verdict returned in this case set aside on the ground that it is unsupported by the evidence. We will consider these propositions in the order stated.
We have again considered the statute and axe entirely satisfied that the construction placed thereon in the former opinion to the effect
“We do not think the statute quoted applies to this case. The contest is not between the estate, or the representative of the estate, and the proponent. . . . The application for the probate of this will is made neither by an executor named in the will, nor by any one acting as the legal representative of the estate of the deceased. This contest is between two persons who claim an interest in the estate, and, as to the estate proper, are third persons, and represent no one but themselves. In that regard they stand in no different situation from what they would had a creditor made application for the probate of the will. The only questions involved in this application are: Did the*90 deceased in Ms lifetime make tbis will, and was he of sound mind and memory at the time? The disposition made of the property therein is of no consequence except as it may throw some light upon the fact whether he was of sound mind when he made it. The will does not in•crease or decrease the estate. The object of this statute is to prevent fraud and false swearing whereby estates became unjustly depleted in cases where no person on the part of the estate, except the deceased, has any knowledge of the facts necessary to sustain the claim in favor of the estate, or to make good the defense of the estate, when unjust claims are attempted to be enforced against it, and wo see no occasion for extending the scope of the statute by judicial construction. It is limited in its reason and spirit by fair construction to contests on litigation upon claims between other persons and the deceased, existing prior to his death; to such suits and proceedings as the deceased would have been, if living, a necessary party, and since which his heirs, dev-isees, and legatees, personal representatives, or assigns, are compelled to prosecute or defend for him in his place; ” Brown v. Bell, supra. This opinion was concurred in by all of the then judges of the Michigan court including the celebrated jurist Judge Cooley. And the principle therein announced was reaffirmed in the subsequent decision cited above.
The Michigan case was followed and approved by. the supreme court of Nebraska in McCoy v. Conrad, 64 Neb. 150, 89 N. W. 665. See also Williams v. Miles, 68 Neb. 463, 62 L.R.A. 383, 110 Am. St. Rep. 431, 94 N. W. 705, 96 N. W. 151, 4 Ann. Gas. 306.
Arkansas has a statute, in all matters material here, identical with our own. The Arkansas statute, Kirby’s Digest, § 3093, provides that “in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify by the opposite party.” In construing this statute the Arkansas supreme court said: “This statute has no application in a case involving a contest over the probate of a will. It was intended to protect the estates of deceased persons from the attacks of persons who had, or claimed to have had, business transactions with the deceased prior to his death, and who are seeking to establish claims against his
The supreme court of Utah originally held the statute of that state applicable to a will contest. Re Atwood, 14 Utah, 1, 60 Am. St. Rep. 878, 45 Pac. 1036. Subsequently the Utah court overruled the decision in the Atwood’s Case, and held the statute inapplicable to a will •contest. Re Miller, 31 Utah, 415, 88 Pac. 338. In the last cited •case the Utah court said:
“The statute in this regard is intended to protect the estates of deceased persons from assaults, ‘and relates to proceedings, wherein the decision sought by the party so testifying would tend to reduce or impair the estate, and does not relate to the relative rights of the heirs or devisees as to the'distribution of an estate in a proceeding by which the estate itself is in no event to be reduced or impaired.’ Citation of Oases. These authorities, and others which can be cited, hold that the controversy such as here is between living parties, who, on the one side, are the devisees or legatees under the will, and on the other, the heirs at law of the testator. The former claim to take the estate under the will, the latter, under the statute regulating the descent of estates, insisting that the alleged will is a nullity. The act of the testator in making the alleged will is the only subject-matter of the investigation. The estate of the testator is not interested. The interests of these claiming to succeed to it either by operation of law or by operation of the will are alone involved. The estate remains intact and undiminished whatever may be the result of the controversy, and the subject-matter of the investigation is not a transaction with nor a statement by the decedent. As to such an investigation, the parties to*92 the suit and those interested in the result thereof are upon terms of equality in regard to the opportunity of given testimony. Our conclusion, therefore, is that all the parties interested are competent to testify to any fact which is'relevant and material to the issue involved, and that the court erred in excluding the proffered testimony. We are aware of some cases which hold contrary to this ruling, and that the conclusion reached by us is in conflict with the case of He Atwood, supra, where the statute was given application in the contest of a will. But the question as to its application in such a case was not there discussed nor considered. The only question considered was whether the witnesses claimed to be disqualified were such persons as are named in the statute. However, the Atwood Case, so far as in conflict with the holding in this case, is overruled.”
The language and reasoning of the Michigan, Arkansas, and Utah courts are, in our opinion, applicable to our statute. See also Re Anderson, 114 Wash. 591, 195 Pac. 994; State v. Nieuwenhuis, 48 S. D. 198, 178 N. W. 976; Lamb v. Lamb, 105 Ind. 456, 5 N. E. 171.
So far as the sufficiency of the evidence is concerned, little or-nothing can be added to what was said in the former opinion. Upon this proposition there has been no difference of opinion among the members of this court. The difference of opinion has been and is solely as to the admissibility of the testimony of Mary Keller. Upon that question the views expressed by the different members in the former opinions remain unchanged. The members of the court who signed the majority opinion herein adhere to all the views therein expressed.
Behearing denied.