173 N.W. 161 | S.D. | 1919
Appeal from an order denying probate of an alleged will and from an order denying motion for new trial. The trial court found that the testator, Ole Kittleson, at the time of his death, was aged and infirm and about 94 years of age;
“A will must he executed- in .accordance with the statutory requirements or it is entirely void. Courts cannot supply defects, nor can they hold statutory requirements to be mere formalities which may be waived. The rule that the intention must govern, which rule applies to the interpretation of wills, does not apply to their execution. * * * Where publication or declaration by the testator that the ‘instrument is his will’ is lequired by statute, there must be some declaration.by the testator that the instrument is his will, which -declaration must be made -to each of die witnesses, though the declaration need not be by word, but can be by any act or sign by which such communication can fairly be made. * * * It is a duty imposed upon a testator by the laws of this state to see that his witnesses are advised that they are not mere witnesses to his signature, -but that the instrument he executes is his will. * * * The purpose of this statutory provision is clear; it is to require proof, not -only that a testator executes the writing, but, what is even far more important, that he understands the -nature of the same.”
In this case there is no evidence-whatever, either ¡by statement of the testator himself to the subscribing witness, or otherwise, that the testator knew he was signing a will, or had any knowledge of the contents of the instrument he signed. The'subscribing witness, -Daigle, was not acquainted with' and had never seen the decedent prior to that occasion; could not speak or write the -Norwegian language, and had no communication with him- concerning- the instrument he saw him sign.
Rinding no error in the record, the order and judgment of the trial court are affirmed.