Ross v. Taylor

165 N.W. 1079 | S.D. | 1917

AVERTING, J.

The county court of' Day county denied probate to a writing purporting to be the wi'li of one Ida S. Taylor. Upon appeal to -the circuit court the judgment of the county court was reversed, and the writing admitted to probate. From such judgment of the circuit court this appeal was taken.

Probate of this writing was contested on the ground:

‘“That it was never properly executed or attested by decedent, in the manner provided by law. * * * ”

This writing was executed at Bristol, in this state, and section 1006, C. C., provides, among other things, that:

“Every will, * * * other than an olographic will and a nuncupative will, must be executed and attested as follows: * * *

“3. The testator must, at the time of subscribing or 'acknowledging the same, declare to the attesting witness that the instrument is his will. * * * ”

There are certain propositions which we deem soi well settled as to be without dispute:

[1] A will must be 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 formalties 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. 40 Cyc. 1097; Thompson on Wills, § 440; Schouler on Wills, etc., § 257; In re Walker, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104; In re Hitchler’s Will, 25 Misc. Rep. 365, 55 N. Y. Supp. 642; In re Arneson’s Will, 128 Wis. 112, 107 N. W. 21; In re Abercrombie’s Will, 24 App. Div. 407, 48 N. Y. Supp. 414; In re Noyes’ Estate, 40 Mont. 178, 105 Pac. 1013.

[2] Where publication -or declaration by the testatpr that the “instrument is his will” is required by statute, there must be some declaration by the testator that the instrument is his will, which declaration must be made to each of the 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. 40 Cyc. 1117; Schouler on Wills, etc., § 326; Thompson on Wills, § 445; Remsen v. Brinckerhoff, 26 Wend. (N. Y.) 325, 37 Am. Dec. 251.

[3,] . The burden of proving due execution of the will is on the proponent. 40 Cyc. 1272; In re Arnesoris Will, supra; in re Hitchler’s Will, supra.

[4] When (as in this case) it is proven that the testator •signed the instrument, and that the persons whose names appear as subscribing witnesses signed the usual certificate of attestation setting forth in detail a full compliance with the several statutory provision's in relation to execution, including the fact of publication to such witnesses, there arises a strong presumption that every one of such statutory requisites were complied with. Such presumption does not need the support of the affirmative memory of either subscribing witness; and, in .order to defeat the will, such presumption must be overcome by clear and satisfactory evidence. In re Grant’s Will, 149 Wis. 330, 135 N. W. 833; In re Sears’ Estate, 33 Misc. Rep. 141, 68 N. Y. Supp. 363; Mundy v. Mundy, 15 N. J. Eq. 290.

[5] When an attestation clause is not read by or to a subscribing witness, the recitations in such clause are without weight. In re Hitchler’s Will, supra; Remsen v. Brinckerhoff, supra; In re Nash’s Will, 76 App. Div. 212, 78 N. Y. Supp. 449.

[6, 7] . The writing offered was executed in the year 1900. The trial was bad 13 years after. The subscribing witness testified. One had absolutely no recollection of the occasion when he signed the paper or of what transpired. The other admitted that his memory was hazy as to-some things that occurred at the time he signed this writing; but he appears to have had a definite recollection of the fact that he did sign as a witness and in relation to the circumstances that brought him to1 the place where he signed, the nature of the place, the person who called him to. be a witness, the other persons present, etc. He was a stranger at Bristol and a stranger to all present except the person who called him and to the other subscribing witness. He testified positively that he was not introduced to testatrix; that she did not speak to him nor he to her; that he would not know she was Ida S. Taylor were it not for her name on the will; that he did not read the certificate of attestation; and that the party who called him to witness 'the writing did not tell him- what kind of á paper it was. This witness does not appear to be in any manner interested in -the outcome of this case, and there is nothing in the record that in the slightest inpeaches his veracity. By being called to subscribe such writing he was held forth as one worthy to bear witness as to what occurred in his presence and hearing. 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 testimony of this witness takes away all the force the law would otherwise give to his certificate of attestation; and while a court, is at liberty to1 draw all the inferences which logically and naturally follow from proven facts,. it cannot infer facts not proven. Investment Co. v. Clarson, 21 S. D. 72, 109 N. W. 507. Not a single surrounding or accompanying fact or circumstance was proven from which we could infer -that 'this witness was mistaken, and. that, in some manner, there was published to; 'this witness the fact that the instrument he was subscribing as a witness was a will; and there was certainly no such fact or circumstance proven as would- permit us to infer that Mrs. Taylor, in any manner by the word or act of herself or any other person, published- to this witness the all important fact -that she knew the ¡instrument to purport to be her 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.

Our attention has been called to numerous cases where wills have been 'admitted to -probate regardless of the fact that one or more of the subscribing witnesses have sworn to facts impeaching the -certificate of attestation. But an examination of such, cases reveals that in every one there were some facts or circumstances tending to impeach the mem-o-ry or veracity of such witness or witnesses. In some cases the subscribing witnesses were very old when called to testify. In others the executing and witnessing of the writing was under the direction and charge of some well 'qjualified attorney, or the testator was himself a party who would -be presumed to know,, and therefore to comply with, the statutory requirements. In others, as in Re Grant’s Will, supra, there were facts, having no connection with what actually occurred at-the time of the execution of the will, which were considered by the court -in sustaining the will,. Had this subscribing witness admitted that he was in- the slightest doubt in relation to the lack of- publication by Mrs. Taylor, so that we ha'd anything from which to infer that he had forgotten what actually occurred, we would affirm the judgment of the circuit court. But such is not this case. It does not appear that Mrs. Taylor or the party who- called- the witnesses was-'a person who might be presumed to know what the statute required. There is nothing to show that this instrument was ever in the possession o-f Mrs. Taylor after she executed it, and that she was intention-all}'- preserving it — a fact from- which we might infer that she- knew its- nature and intended -it to -operate as a will. In- fact there is not a -single -circumstance upon which we can lay h-old to- justify us in concluding that Mrs. Taylor knew, and published to both of these subscribing witnesses, that the instrument purported to be and was intended to operate as her will. In' an extensive note found in L. R. A. 1916C, 1219-1245, a vast number of decisions will be found reviewed. A study of same will reveal the correctness -of our conclusions.

The judgment appealed from is reversed.