187 N.W. 963 | N.D. | 1922
This appeal involves an order of the district court affirming a similar order made by the county court denying the admission of a will to probate. The facts necessary to be stated are as follows: Christina Peil, the deceased, died on March 9, 1920, afflicted with cancer of the stomach. She left surviving hér two daughters and three sons, aged, respectively, from 32 to 54 years: also six minor children of a deceased son. Her estate consists of about $1,800 in cash and personality. On December 19, 1918, the deceased made a will devising all of her property to a daughter Maria Gugel, excepting the payment of her debts and funeral expenses, and $1 to each of her children and grandchildren. This will was made upon an agreement that such daughter would furnish her with shelter and support for the remainder of her life. The signature of the testatrix to this will is in German script, quite legible. With this daughter she lived during three months. Whether she left by reason of ill treatment or dissatisfaction or to stay elsewhere and to look after her property interests is a matter of dispute in the evidence. In any event, she lived thereafter partly in a small house or shack upon land rented to a tenant and’ formerly owned by her deceased son; partly with a married daughter, Rosina Riedlinger; and partly with a married son, Samuel Feil. While.at Samuel Feil’s place her condition became such that it was deemed advisable to take her to a hospital in Bismarck. Accordingly, in February, 1920, in the company of her brother, Christ Payer, she was brought to such hospital. There she remained about two weeks. The evidence discloses that her physical condition was poor; that her cancerous condition had advanced to such a degree that only a short time remained until the final summons would come. Further, the evidence discloses without contradiction that the testatrix became extremely anxious to leave the hospital. She wanted to go away, to be taken away to the home of one or two of her children. She was willing to even sign her life away, as she stated, as well as her property, if she could be so taken away. She communicated her wishes over and over again to her brother. He had been residing with
The questions involved are questions of fact. Upon appeal to the district court, the parties were entitled to have such questions determined by a jury. Section 8620, C. R. 1913. Instead of so doing, and instead of again submitting evidence to the district court, the evidence submitted