| N.D. | Jun 8, 1921
Lead Opinion
This is an appeal from an order overruling a demurrer to a petition for the probate of an alleged will of William J. Morgridge. The will is dated September 19, 1916. A subsequent will, dated November 23, 1917, was held void for want of mental capacity. Prescott v. Merrick, 179 N.W. 693" court="N.D." date_filed="1920-09-28" href="https://app.midpage.ai/document/prescott-v-merrick-6739287?utm_source=webapp" opinion_id="6739287">179 N. W. 693. The will in question was destroyed by the parties who secured the will that was held void.
The case above cited shows that in December 1915, Morgridge suffered a stroke of paralysis from the effects of which he never recovered. After that he lived in the General Hospital at Devils Lake. The deceased left property valued at approximately $80,000. The will provides for bequests as follows: $100 to Delia F. Morgridge,' of Boston, Mass., a sister of deceased; to a nephew, Ralph Waldo Prescott, $10,000; to one Clara Allen, of Boston, $100; to Stella Merrick, of Oregon, wife of F. E. Merrick, his former business partner, $5,000; to Ruth Canfield, of Oregon City, Or., daughter of F. E. and Stella Merrick, $1,000; to Walter D. and Emerson P. Merrick, sons of F. E. and Stella Merrick, of Medford, Or., $1,000 each. The balance of the property was devised to the above-named persons in proportion to the amounts bequeathed in the will.
The will now in question bears the same general character as the other will. It leaves the bulk of the property to Merrick and his family though the Merricks are no relations of the testator.
The petition for probate is signed and sworn to by Fred E. Merrick. He avers that on the 23d day of November, 1917, the testator made a will,
To the petition there was filed a demurrer on two grounds: (1) That the facts stated in the petition are not sufficient to constitute a petition as provided by law for the probate of a will. (2) That the facts stated do not show a fraudulent destruction of the will.
The petition for probate was drafted in view of the statute which provides as follows:
“No will shall be provided as a lost or destroyed will unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed” during his lifetime. Comp. Laws, § 8643.
The manifest purpose of the petition was to show that the will had been fraudulently destroyed during the lifetime of the testator, and at the same time to excuse the destruction by showing that it was done in good faith. In this case Merrick, the petitioner, is put in a dilemma. If the facts stated do not show a fraudulent destruction of the will, then it cannot be admitted to probate. If the facts stated do show, as they do, that Merrick was a party to the destruction of the will, then his petition must be denied because of the salutory maxim: “No one can take advantage of his own wrong.” Fred Merrick cannot plead his own wrong as a reason for the allowance of a will giving a large estate to him and his family, none of whom are heirs of the deceased. Hence the demurrer must be, and it is, sustained, and the petition dismissed.
Reversed.
Concurrence Opinion
(concurring specially). This is a proceeding for the probate of a will alleged to have been fraudulently destroyed during the lifetime of the testator. § 8643, C. L. 1913, provides:
“No will shall be proved as a lost or destroyed will unless the same is proved to have been in existence at the death of the testator, or is shown to have been fraudulently destroyed” during his lifetime.
In construing a provision identical in language, the Supreme Court of California ruled:
“Where a will is alleged to have been fraudulently destroyed, the petition for probate of such will must state the facts and circumstances showing such fraud.” Estate of Kidder, 66 Cal. 487" court="Cal." date_filed="1885-03-12" href="https://app.midpage.ai/document/estate-of-kidder-5442014?utm_source=webapp" opinion_id="5442014">66 Cal. 487, 6 Pac. 326.
The petition in this proceeding attempts to comply with this rule, and purports to set forth the facts and circumstances which it is alleged constitutes the fraud. In my opinion, however, the facts and circumstances set forth not only fail to constitute fraud, but show affirmatively that the will which it is sought to have admitted to probate was not fraudulently destroyed during the lifetime of the testator. See Estate of Kidder, 57 Cal. 282" court="Cal." date_filed="1881-07-01" href="https://app.midpage.ai/document/in-re-estate-of-kidder-5440134?utm_source=webapp" opinion_id="5440134">57 Cal. 282; Estate of Johnson, 134 Cal. 662" court="Cal." date_filed="1901-12-04" href="https://app.midpage.ai/document/in-re-estate-of-johnson-3308342?utm_source=webapp" opinion_id="3308342">134 Cal. 662, 66 Pac. 847.
The respondent relies upon the decision of the New York Court of Appeals in Schultz v. Schultz, 35 N.Y. 653" court="NY" date_filed="1866-09-05" href="https://app.midpage.ai/document/schultz-v--schultz-3590968?utm_source=webapp" opinion_id="3590968">35 N. Y. 653, 91 Am. Dec. 88. That was an action in equity to establish a lost or destroyed will. It appears from the opinion in that case that New York (in addition to a statute like § 8643, supra) had a statute which provided:
“Whenever any will of real or personal estate shall be lost or destroyed, by accident or design, the supreme court shall have power to take proof of the execution and validity of such will, and to establish the same as in the case of lost deeds.” 35 N. Y. 654, 91 Am. Dec. 88.
No such provision exists in this state.
I agree that the order appealed from should be reversed, and the proceeding dismissed.