Stormon v. Weiss

v. STORMON WEISS et al. 7285.

No.

Supreme Dakota. North Court

July 1, 1954. July 29,

Rehearing Denied County petition praying

Court of Pierce probate for the sis- will. The three ters of and the children one deceased sisters written filed objections admitting probate. objections Such were filed first two of the sisters and son of one of the deceased objections signed sisters. Such attorneys verified con- one of the for the testants information and belief. Sub- sequently objec- an amended answer and petition probate tions for the will were the three filed sisters of nephews two and two nieces, the children of one of the deceased nephews nieces, remaining sisters. The & children of other Rugby, the deceased sister filed Heringer, Roland A. Sinness objections. no Lake, objections Duffy, Howard Stor- In such and an- Devils and J. Rolla, appellant. it is mon, alleged pur- and swer stated that petitioner for the and ported probate will for the offered is not Sickle, VanM. A. Waldron and Bruce C. deceased, true last will of and testament Minot, El- Finch Arneson and Robert John supposed that at the time of the execution liot, Minn., Jr., Minneapolis, of counsel, purported of will decedent respondents. and contestants of sound disposing and mind but “was of agitation physical

such extreme mental and MORRIS, pain capable making Chief that she was not Justice.1 appeal judgment will”; or undertaking is an from a This make that at the County vacating Court of Pierce time of such District execution will she was County under the annulling a Court restraint and and decree of undue influence County pro- Stormon, will admitting by exercised A. of Pierce that for a John long prior by The will time bate. involved was executed thereto said Stormon had McIntyre IS, July legal Ethol G. advised decedent on and business many matters and she retained him for 9,1948, July Ethol G. died at years attorney, paid legal her him fees Miami, of her Florida. At death for performed, services that .said Stormon prior was, many years and thereto misused and abused influence to such been, County had a resident of Pierce in prevailed extent “that the decedent was no this state. She no children and left will, upon, purported in to disinherit her spouse, husband surviving having died heirs, family, natural members 1930; surviving left three sisters toward whom she cherished natural affec- nephews nieces, and the children and several tion, by said and virtue of dominant and un- By the deceased sisters. terms of of two due influence of said Stormon he himself all will here former wills beneficiary became named of the dece- by said Ethol G. were re- made unjust, unnatural dent to the and unfair voked, by owned her at the time family.” exclusion of decedent’s That bequeathed and her death was devised kept was at all purported will times in the Stormon, the A. husband of one John and office safe said Stormon its contents nieces, and A. said Stormon was John divulged having equal those right appointed to be executor of the will. due provisions. In the A. filed in the its answer County Stormon to know first time John summary participated pre who several 1. The of the facts Christianson many pared on this case. and cited conferences authorities by Judge collected were late A. M. “That said scribed objection alleged: their names and thereto. at the handwriting of time of the execution supposed is not in the of said last will and will decedent, thereto is not testament the said Ethol signature G. and handwriting, disposing memory. and sound and or in her and decedent’s name mind allegations He the name denies the person claiming signed to have answer and objections that supposed signed his di- the decedent of decedent to said restraint, under wit- undue own name as a influence and fraud- rection has written his representations ulent amend- supposed said will.” In the ness to statements on part of alleges and is al- Stormon and objections it said Ethol ed answer and McIntyre, disposed G. subsequent testatrix, leged to the execution of her “that property freely repeat- purported voluntarily decedent will the said accord- ance wih her edly own wishes suggested to A. Stormon and desires and John July purported signed without provisions influence on the revoked; person 15, 1941, changed, whatsoever. so; steps reason to do he took no pleadings issues framed thereof, purported will were to be if said duly county tried and the made find- court operative, A. Stormon would the said John ings of fact and conclusions of law sustain- wrong.” own of his be a trustee ing the petitioner contentions of the signed objections were amended answer and made an order admitting probate the will to of all the one the sisters behalf appointing A. Stormon to be ex- John contestants, it was the verification ecutor of the will and issued testa- letters the answer and is has read stated mentary appealed to him. The contestants objections its and that “knows contents to the district court judgment from the true, except allegations it is as to those county order of the court and the case came belief, made on information and and as to on for trial in the court district and was them she believes it to be true.” jury upon tried to a the pleadings that had in county been filed the court. The trial re- Stormon, petitioner, A. inter- John disagreement sulted in jury. a reply posed or answer to the written an- a motion Thereafter was made in the district objections by swers and filed the contest- appeal court to the county dismiss from the every each wherein he denied al- ants court because of defective proceedings on n legation in such contained answers and appeal the to the district court. Such mo- except qualified. objections or as admitted judgment granted tion was of dismissal Ethol G. He denied that was of duly was rendered and appeal entered. On mentally incompetent unsound mind at judgment to this Court such was reversed any the time executed the will or at pro- and the cause remanded for further alleges that the will offered ceedings. McIntyre’s Estate, In re 78 N.D. probate is the last will and testament of 10,47 527. After N.W.2d the case had been McIntyre. He alleges Ethol G. it was sub- petition- remanded to the district the court by scribed her as and for her last will and change er Stormon moved for place signed testament and that last will said was ground of trial on the that he could not by presence the in the said deceased of J. impartial have a fair and trial in Pierce A. H.W. Adams as witnesses Johnson County. Affidavits were submitted the request thereto who at her subscribed their petitioner support in of the motion and subscribing names as thereto witnesses counter-affidavits were submitted the presence of the the deceased and in the contestants. The trial court denied the mo- presence signature of each other. That the place change tion for the of trial and the will and testament genuine to last is the again jury the case was tried to a of Ethol G. signature made the upon district court the pleadings that had presence of A. and W. H. Adams J. Johnson county been filed in the court. subscribing witnesses thereto who at the deceased, request presence the the A number of witnesses were called parties upon each other and of the deceased sub- the and testified the trial. answer, your case further in to rested their deliberations the contestants'had When question, direct the to to second as whether the the court petitioner moved the procured by influence, the will will validity of was undue sustaining the verdict you will showed but should find that the evidence that grounds question ex- properly is not will of Ethol G. conclusively that the will find, McIntyre, wit- properly you and if do McIntyre, was so from ecuted preponderance evidence, a fair and at- respects executed and in all nessed incompe- law, that she was evidence then there required by tested will, also, you tent make a time of will at the conclusively shows general signing addition to will Mrs. verdict execution of competent effect, special entirely question sign mind and of sound will; you question further submitted to on the the evidence make any competency. undue not under shows that she in fact her influence, that the will was but hand, you “On the if other find that evidence free and deed. own act McIntyre, Ethol G. time of exe- years she lived for seven shows that further will, mentally compe- cuting will and subsequent the execution tent make you then should from at all times free that she was proceed ques- to determine the second influence and duress or undue tion, namely: ‘Was the will in exe- will or said at all times free revoke ” procured by undue influence ?’ express intent one to cute a new any dissatisfaction on there been desire had forms “Two of verdict will be sub- July executed on you, (omitting mitted one reads 1941; con- expressed that she parts): ‘We, duly formal jury, em- de- The trial court firmation will. panelled try sworn the above- all the At the close nied motion. action, entitled do find testimony motion petitioner renewed the question and offered in evidence is not denied court a directed verdict. McIntyre, will of Ethol G. de- was submitted to case motion you pre- ceased.’ If find a fair jury. ponderance of the evidence that time of the execution such will jury the to the In its instructions court Ethol G. was said: competent will, you if to make a preponderance find from a fair of the present- questions are general “Two in question evidence that the will consideration, namely: (1) your ed for procured by undue influence and was testatrix, McIntyre, G. Was Ethol the not, fact, decedent, the will of the competent her will the to make at you then will use this form of verdict ? question executed and you your and sign will have foreman question (2) procured will in Was the and date the same. by undue influence?” the foregoing “In addition to form and de- should first consider “You verdict, submitting the Court to question testa- termine the of whether you special question to be answered competent G. trix Ethol by you, upon touching competency will time she exe- to make her at the McIntyre to of Ethol G. make will same.” cuted the same, the time she executed you prepon- question as “If believe from fair reads follows: ‘Was testatrix, McIntyre, the evidence testa- Ethol G. men- derance of that the tally competent make McIntyre, to her will at the G. at the time trix Ethol will, re- time when executed the same ?’ making her which has been evidence, your duty question testa- It is to answer did not have ceived in irrespective capacity, prob- ‘No’ mentary you go need no ‘Yes’ or then County Pierce enter an order may have be directed to such answer able effect revoking things admitting in all and answered the order be must determined case, to probate purporting them in the the document you find be the facts as evi- the last will G. and testament of Ethol preponderance a fair from deceased, will question McIntyre, appointing be separate This dence. John room, executor, jury cancelling A. Stormon your as you to taken with revoking in the testamentary will insert letters thereto- you it you as answer Judgment or ‘No’ fore issued said ‘Yes’ Stormon. space provided the answer it, pursuant accordingly entered such or- you have so answered and when you petition- der for judgment. it Thereafter sign and date will foreman ver- er A. your Stormon moved the court for into court with return it will John notwithstanding judgment the verdict or dict. for a new-trial. Such motion was denied of verdict reads form “The other peti- the trial Thereafter said court. ‘We, parts) : (omitting the formal tioner, Stormon, appealed A. to this John try duly empanelled and sworn jury, judgment Court from of the district action, find that do the above-entitled court and denying order mo- question ev- and received the will in tion for judgment notwithstanding ver- McIntyre, Ethol is the will of G. idence dict a new trial. If find from the evi- you deceased.’ instructions under these dence and clarify presented In order to the issues competent make her appeal for determination on this should or, was not will in be mentioned that was intro- no evidence influence de- procured undue attempted duced or to be introduced show- the will was that you and that fined ing signature that the to the was not will deceased, you will use this then handwriting “that of the decedent or your you will form verdict subsequent will the execution of the sign and the same.” foreman date A. repeatedly suggested to decedent John provisions pur- Stormon as follows: jury returned a verdict ported 15, 1941, July changed signed question: “Was the Special testatrix allegations These revoked.” competent McIntyre mentally G. Ethol trial; and, said, wholly ignored upon time when she ex- to make a will proof tending there was kind No.” Answer: ecuted the same? support allegations. In his these instruc- jury tions trial court said: “We, jury, duly verdict: General empanelled try and sworn to the above- necessary “With reference to the action, do find that the will in entitled ceremony gone through, form and to be question in evidence is and offered you are instructed that the in evi- will McIntyre, G. Ethol de- the will of dence, 15, 1941, July dated is the valid ceased.” McIntyre if, legal of Ethol G. and will thereof, at the time of the execution Upon return of verdict and capable making of she "was will and the trial special finding court ordered that time, if, pro- at the same it was not entered, be rendered and judgment that the by cured undue influence. question previously to will in and admitted probate McIntyre, the will Ethol is not of G. undisputed “It is that Ethol G. McIn- deceased; and that order decree of the tyre July, died resident of the County admitting County Court of County Pierce Pierce of and State of North probate appointing Dakota, to and will and that she left said A. with- John directing County executor and issu- of Pierce. It in said is further Stormon testamentary parties by him all letters to be in that the dece- ance of conceded vacated, aside; McIntyre on the things evening annulled and set Ethol G. dent duly County July executed will judge Court of that and 15, 1941, hospital Bottineau. evidence, July and the at dated Johnson That they auto, Nerison driv- to whom went Mrs. presence two witnesses ing. rainy and testa- That That will was a afternoon. be her last it declared it to McIntyre they ment, in the Mrs. witnesses became nauseated which said way it go by and in decided presence were better not to the testatrix directly re- go and at the Rolla but to Bottineau. That presence to of each other long will called signed such distance quest the testatrix Dr. Johnson telephone pre- witnesses; will was to be certain that that such Dunseith A. he he pared petitioner Storm- would be that asked by the available arid John attorney on, directly at them to come to his office clinic. who was at said time time the hus- That was at said reached Bottineau about o’clock law and who decedent; that in the evening of the and went to Dr. band of niece Johnson’s posses- into the office or delivered That after he-had examined said will was clinic. hospital McIntyre A. petitioner Stormon Mrs. he called the sion of the John 15, 1941, safe-keeping, hospital. July go directed that she to That posses- gave as she recalls Dr. Mrs. McIn- that said will remained Johnson tyre until was sion Stormon it some medicine at office to ease her A. John pain. That presented probate.” him it was about 11 o’clock that evening McIntyre when reached Mrs. sufficiency of challenge to hospital. is there the verdict to sustain evidence McIntyre Dr. that Mrs. testified sufficiency evi Johnson to fore restricted July came consult him on 1941. That jury finding dence to sustain abdomen, pain she had a in her that she competent make was not the testatrix hospital night, admitted to the mental question And the will. July that on 15th he called to witness an make a competency of the testator being instrument which she executed. On the time of is to determined as shown the will in here he testified Wills, Page execution of the will. that the document was exhibited which pp. ; 416. 68 C. 233-234 J. him was He the one he witnessed. issue of testa- determining sign “In testified he saw Mrs. only question capacity, mentary presence, urged it in his no one competent it, signed sign whether the testator at the time she At- will.” the time the execution and Mr. torney Adams of Bottineau Storm- Law, Ed., Ency. p. present. 2d 28 A. E. on were said it was & requested will and that she and Mr. in Wol- Mrs. owned a home sign subscribing Adams each as a witness. Dakota, County, ford in North Pierce He testified: McIntyre’s sister Mrs. invitation her “Q. husband came Mrs. Nerison There was some evidence of- July, day first week of fered the Wolford the other Mrs. Nerison up there. The Neri- their residence being took reference some medicine living McIntyre, there given I sons believe on day July, Mrs. Nerison testified that July, in the fifteenth to ease her you McIntyre pain. you may became ill and Mrs. Neri- If Mrs. refer to the wish medical, hospital records, McIn- call a doctor Mrs. desired to and son you done and tyre did want this stated that that can tell us whether not or not I anything as this attack blows over am “as soon was administered to Mrs. check-up”; McIntyre up way have a that the any and that would in going Sunday, July worse on pain became and affected her mental alertness even- McIntyre 13th, ing July asked Mrs. Nerison Mrs. the fifteenth? A. She had they pick morphine shortly Rolla where take her to would a small dose of after Rosscup (a McIntyre up niece Mrs. a. m. Mrs. twelve o’clock on the fifteenth. Nerison), go One-eighth then one-eighth of Mrs. and to Dr. of one —or and of a That his tineau. came to Mr. Stormon This was adminis- morphine. grain of evening fol- home in in while Bottineau reaction of some tered on account he gall working yard, Adams in that for was given was dye that lowing the nauseated, accompanied hospital and Stormon partly picture bladder McIntyre’s up at sit- me Mrs. room. That she was called on, nurse and the so ** ting up in bed he introduced to small when was This a time, *. that ** * her, before, that that he had never met her dose. said there that she Dr. was and Johnson one-eighth dose of “Q. aWould Mr. that she wished that Dr. and Johnson some administered morphine, grain will, she Adams would her that witness beforehand, any man- hours eighteen will, signed it it said was her that she at alertness mental her ner affect urged presence, their that no her one There ? A. executed will was time the it, sign signed that and Dr. Johnson the time remaining at was no effect request subscribing it as witnesses at signed.” will was presence presence in her of each and other, was it is that she that his recollection was the that testified Dr. Johnson up sitting in bed when he was introduced physician practice hospital call signed to her when she and was adminis- morphine charge before morphine whether and determine tered Mrs. Nerison that about testified she was testi- He further administered. should be years younger sixteen or than seventeen McIntyre Mrs. the time during fied that McIntyre. McIntyre Mrs. was That Mrs. to visit occasion hospital he had was in the born in 1877 and that Nerison was Mrs. her. That she with frequently talk and born in 1893. That she and Mrs. after refer- any consult him time did McIntyre had was much married there he did and that ailment mental ence to between them and their sisters association ailment, mental not observe possible. frequently helped woman, that at the very bright was a loans, McIntyre Mrs. with small a con- on she carried the will was executed loaned Mrs. $140 Mr. and with with Dr. versation Johnson payment make on her That this took car. perfectly normal Adams, and that it was place in California where Mrs. Nerison intelligent conversation. and her at the time living husband ques- prove by sought to petitioner spending and that Mrs. was that at Dr. propounded to tions winter Mrs. with them. Nerison testified Johnson by her she executed the time McIntyre gave that Mrs. note for the control of her competent in full payment loan funds to make the car. objection There faculties. mental given by She identified another note Mrs. attorneys ground that contestants’ October, 1938, $775 be adduced was testimony sought to payable Rev. Mrs. year Nerison one re- patient-physician privileged -because after date identified a list of checks Dr, lationship between McIntyre totalling sent to Mrs. Johnson $638.50. attorneys made also McIntyre. Petitioner’s She further testified loans re- objec- which the proof to same an offer repaid ferred to were all with the attorneys. by contestants’ tion made exception of an item or two for which prof- was sustained objection against submitted a claim she had testimony was admitted. fered McIntyre. estate of Mrs. Nerison pastor testified husband he is a practising testified Adams Mr. Wilmot, Dakota, church South City of Bottineau has attorney lived at Wilmot more than they there for more than 40 practising twenty years. That moved Wol- subscribing he was one That years. was her husband forced when McIntyre ford will of Mrs. on to the witnesses ill health and that because of resign will was executed That the 194.1. July McIntyre their home they made at Hospital Bot- Joseph’s at at St. room in a presumed just it greater was. She said he was home in Wolford McIntyre going hospital to the on That Mrs. business. time since 1940. apart- upstairs of an gave them use matter, “Q. And, fact, hadn’t rent free and invited her house ment in McIntyre requested you Mrs. that to come. urged them morning to call Stormon Mr. on A., telephone No, sir, to come over? that after Mrs. Mrs. testified Nerison * * * she had not. hospital she McIntyre taken to the was Hotel (Mrs. Nerison) went to the Stone “Q. presume You that he been had hospi- went in Bottineau. That she hospital called presume, I ? A. McIntyre both the 14th tal to Mrs. see but I don’t know. days July. That she was when 15th “Q. Anyway, pre- you what from hospital McIntyre 14th on the Mrs. you sumed or from knew, you what pain something to alleviate given was believed a will had that been at drawn Nerison) (Mrs. does not know that she hospital night? you that Did not? spent considerable what it was. That she ' Well, A. I know don’t other what hospital day that she time at that lawyer business a would have with a hospital. saw Stormon at That Mrs. woman that was lowas as she was.- Mrs. had taken father there Stormon operation for treatment because of that “Q. you granted So took it performed had on his nose sometime that was the business that I was—A. That she left word at before. had sensed—I sensed that that must be the desk at the clinic tell them Stor- (Mrs. case. father) mon Mrs. hospital they “Q. you and after Did at the ask Mrs. they through the clinic came to' if about business or a will had been hospital. July you That on 15th went she to made when next talked with her? hospital morning. before Duffy, 8 o’clock A. Mr. I have better manners counsel, She asked contestants’ than that. your you knowledge

—“Can tell own us of “Q. you You mean that wouldn’t was done to anything whether alleviate your anything ask sister about whether McIntyre’s pain on the 15th?” She she made a will or not? A. I “Well, answered, I saw medication ad- certainly would not. but I ministered don’t know what was.” When asked whether the medication “Q. thought You that Mrs. McIn- give any seemed relief to Mrs. McIn- tyre perfectly competent to take tyre, answered, very drowsy.” “She was care of her own business without Mrs. Nerison go testified she did not suggestions assistance you? hospital night on the of July 15th. No, I A. sir. did not think shortly supper after evening competent. She was too sick a woman * ** Mr. Stormon came to the Stone make a will. Hotel, together talked and that “Q. you thought that, if Then didn’t (Mr. Mrs. Stormon stated that Stor- John obligation you feel under to do hospital mon) going business, anything finding about out from her stayed and that Mrs. Stormon with her was well whether after she or not she returned, until Stormon Mr. which she had made a will or whether or not estimates was sometime between 9 and the will that have made was evening. o’clock On cross-ex- No, sir, one that satisfied her? A. amination she testified: any obligation I did not feel under inquire personal into affairs.”

“Q. You knew that Mr. Stormon’s hospital business was with Mrs. testified that Mrs. Nerison she never McIntyre, you did Well, not? A. I asked Mrs. about the business McIntyre transacted at someone things

that she and Mr. Stormon had said to Mrs. evening. she and hospital that That resulted in her toward coolness Mrs. house, occupied Nerison, McIntyre the same McIntyre that that is Mrs. what Mrs. together in the summer- told and were there Mrs. Nerison but “she never stated years after that seven who.” She time for some further testified that in 1947 during that McIntyre transacted. That Mrs. business was wrote list of the names inquiry sisters, nephews, no and of her Nerison made time Mrs. and nieces on the regard- McIntyre made statement back of a twenty- Mrs. There circular. were that one such She testified Mrs. of these ing matter. relatives in McIn- all. Mrs. tyre McIntyre glasses and she had her said wore she would like to have deeded hospital, quarter one, that her glasses with in section of land to each eyes her trouble that she as giving long were as she had indebtedness she hadn’t McIntyre while done so wrote letters Mrs. because she needed the revenue hospital, up to members of her to clear she was in the debts. Mrs. Nerison family. Nerison testified that she testified that Mrs. in 1935 or 1936 McIn- Mrs. tyre, morning July California, who left Bottineau 16th then was in sent her Wolford, olographic an home at and went to her will wherein she left all Friday, July Nerison, to Bottineau on she returned Mrs. that nothing 18th, hospital surgery was left and entered of the other That sisters. is, morning, Saturday, accompanied July the next will was a letter McIntyre McIntyre she and wherein Mrs. were Mrs. 19th. that she stated separate sending in rooms the first week and after was the will because she going- hospital. out they on an shared room the excursion the ocean (Mrs. feeling might That Rev. Nerison Nerison’s hus- that she not come back and brought McIntyre back, that “if I don’t Mrs. from the come band) way this is the I hospital put to her home in it.” Wolford the She told us to want the will in deposit our August, safety my first she continued box husband put slowly. convalesce but our box at She testified: the bank. When Mrs. McIntyre returned the spring my hus- Nerison, “Q. Mrs. Mrs. band went down the bank brought May not recovered until after up house and returned it Yes, is that correct? A. I would to her. The letter which it was said ac- say sometime—she had a fall during companied the will was not introduced in winter which retarded her recov- only evidence and the relating evidence ery.” testimony the will was the of Mrs. Nerison. testified Mrs. Nerison that she recalls In the course of Mrs. Nerison’s testi- McIntyre going Sep- to Duluth in Mrs. mony there was offered in copy evidence a tember, to attend funeral of of a letter which she testified inwas Henry Middaugh. That there was some handwriting of Mrs. and had estrangement between her coolness been written by her to the Collector of McIntyre after she and her husband Internal Revenue. The letter is addressed to Wolford came back that she to the Collector of Internal Revenue at coming that their understood Mrs. Mc- Fargo May dated 1942. In that jealousy, had caused some Intyre’s home letter said: there were those who tried to make them and trouble between succeeded for “Illness has caused an last hour rush That in the winter a short time. of 1944 ' my income report tax husband) and her (she manag- —The ‘blank’ is some what confusing per- apartment house Beach Long ing — haps yet because I am very clear wrote them in thinking.- my I forgive briefly asked them to her for 1944 and possible explain the begged hurt she had caused them and situation. back, I a widow come that she understood 1st am them to land, Rugby, worked Harold Nelson at that had property is farm B. he McIntyre period known on basis. com- tenants the 50-50 Mrs. for also, crops mencing years prior sold five to the income from about execu- Total tion Parity & of the That he with the Government Conservation will. $8,828.00. Company Rugby. Gronvold That total Motor payments McIntyre income.” Mrs. transacted considerable I have no other in company with such business and was ex- follows a statement of various There place Rugby quite their business at fre- payments deductions penses and for which quently period during that That time. made, taxes, interest on such as he she opportunity had an see whether Land indebt- Bank loans and other Federal intelligent woman, was an he alert and that expenditures edness, incident and various very thought she was much inso transact- taxes, operations ex- farming such as ing her business. That she exercised seed, threshing, insurance penditures for up- judgment rely own and did entirely upon the state- is laid repairs. Stress persuasiveness on salesman confusing ment, what “The ‘blank’ some doing whoever was business with her, that yet I clear —perhaps because am very McIntyre was regular Mrs. cus- one that this my thinking.” It is contended in Company, tomers of the Gronvold Motor testator on the ais declaration quite often, that-she in there once incompetency lack of indicating mental month or year so. the last he saw testamentary capacity. her was in 1941or 1942. introduced in a will evidence Contestants Lutz testified that he had employed McIntyre, September by Mrs. executed by the Gronvold Motor Company for about prepared Rugby will at twenty-five years, that he knew Mrs. McIn- lawyer Nelson, practising then a B. Harold tyre, signed that he as attesting one of the city and now one of the district in that September 7, witnesses on the will made that The will judges of State. directed that were in Mr. Nelson’s office soon named as after the executor will at the will was signed, time the that he had testator, conveniently as the decease McIntyre known Mrs. since about be, pay just all her debts and funeral might she that did business with the Gronvold expenses. expressly It revoked former Company from time, Motor time to dispo- testamentary wills, other codicils up until thereabouts, continued 1947 or provid- theretofore made her and sitions bright, intelligent was a woman and was estate descend her lawful ed that her, that all. time that he knew according to the law of succession heirs carrying her business transactions stated, “this of North It the State Dakota. independent exercised her own judgment express purpose is made for the instrument very capable. and seemed That during the wills, revoking all former codicils and time she lived Wolford she was at over dispositions testamentary heretofore made Rugby.for service her car and matters of appointing me,” and an executor for the quite regularly, that kind probably once appointed She such executor as estate. every three two or weeks. Nelson, attorney had B. who Harold repre- prepared George will who also Nerison testified that he litigation Nerison, involving estate husband of Ina sented he knew Mrs. about twenty-five deceased husband. The contestants years subscribing witnesses witness- during called and her sisters Gronvold, friendly Lutz both resi- were on terms. That es to he has visit- McIntyre’s testified Rugby. Gronvold that he many ed at Mrs. home on dents occa- Rugby all his That he he was in had lived life. sions. That the Veterans’ Hos- Minneapolis pital many years witnessed knew September family which was ex- when and his executed had to move him, signed Wilmot, Dakota, that he and Lutz South hibited their former home, attesting witnesses in office came to him same see McIntyre, like and sometimes “George, I would Mrs. visited hospital said: and boys stayed in That she her home at you and Ina and Wolford. very much for McIntyre I am hos- know knew that Mrs. in the my place. You was up to to move pital July, like at and talked and I would Bottineau in big house in that alone there.” up with her after That you move she home. have returned very much to previously, up August, there this was about the first had been That summertime; she nev- that 1941. Hart met Mrs. Mrs. testified she especially the farms McIntyre her manage “how street and asked her him to asked er relating to she felt matters and so forth” that McIn- about and Mrs. asked repair tyre work up did some asked her have That he to the house to farms. in town. especially one lunch with and buildings up her so she went and her ad- she asked McIntyre instances there for That Mrs. That certain awhile. opera- farming things with talked over with Hart’s hus- in connection Mrs. vice band, the funeral pastor at That he was seemed to be and interested tions. John- Wolford, last ny (Mrs. pro- at son) held for services Hart’s and asked what Rugby him, being (Mrs. conducted vision she Hart) had made for services That Mrs. Rolla. that Mrs. Hart minister told her and Mrs. regularly and corresponded agreed (Mrs. that Hart) right. and her sisters she and to each other letters robin round She testified sent further: up friendly to relations maintained “Q. you say And then what did to in 1947 Mrs. her death. time of her? you A. ‘What have done about Florida, wired inwas McIntyre, who then yours ?’ down; that come Nerison) to (Rev. him very much and wished car there “Q. say she had And what did in re- she Dakota because to North back sponse speak bring to that? to A. She didn’t might be incurred. liability that ‘Well, said, for a minute and then she to use it wanted house guest up papers guests I fixed some with Stor- John any accident responsible felt and she mon that I think will take care of me anxious happen so she was might get until I made.’ care to drive alone but didn’t it back get “Q. And was that all that said traffic, so “she through all far particular time about that sub- and, course, paid down me to come wired No, ject? A. I asked her what kind I went to Miami expenses.” my all of paper. of a was in the This in her car. back we drove Oh, say “Q. yes. up got I would A. part August 1947. And first made person who and asked me if I have would some McIntyre was Mrs. say was a woman who She friendships quickly more coffee. didn’t much quickly. it, answering trust about then placed her she went sometimes sum- invited Stormon’s the kitchen.” were all we Upsilon day for a but she Lake home at mer When asked if im- lake, “Now, up got we said before pressionable woman, answered, “I stay overnight, you want you if folks that, say couldn’t but she sometimes asked you come back for I will do so questions regard to the farms and me do no circumstances tomorrow, but, under I never had a business transaction with under stay overnight I want McIntyre. I never borrowed nor None of us Stormons.” obligation money, I think you, if loaned she liked my except son. We are overnight stayed you.” she would do a lot for McIntyre home at Wolford at living in “Q. you And do know also wheth- called that home time. We present subject er or not she was to firsthand since n is, impressions; quickly did she did; friends? A. I as a witness make think she called Hart was Julia easy very make friends.” testified that she knew She contestants. prac- I I have and wrote the will in accordance A. testified: Stormon John thirty-four respect paragraph County directions. ticed law in With Rolette authority years. acquainted gives McIn- I with Mrs. the executor cash, tyre. prepared in mat- sell I contracts for her and convert into joint tenaricy prepared unpaid some stated that encum- ters taxes during the last two might contracts for deed brances on land that it the were such hurry in years Cooper necessary life. In the estate in her sell some a land McIntyre redemption were which Mrs. and her sisters to make a that reason she so for allowing prepared 'provision I the order wanted I wrote interested in the will. portable typewriter the account and final decree of distri- on my the the will in the hospital bution and citation the final served the for office. I written After had the prepared hearing the I I McIntyre’s for administrator. will I took toit Mrs. room. gave instrument marked Exhibit and she read will. Dur- McIntyre of Mrs. July ing away made on 1941. I bring the time was Mr. 14th, day before, July On the McIntyre. that is on Adams the will was with Mrs. suppertime by my My about I was informed judgment best would be I gone that was McIntyre wife that hos- 15 present Mrs. was in the about I in to minutes. was pital at My Bottineau. wife been over the McIntyre signed room when Mrs. hospital day at the with her father will and when Adams Dr. Mr. and John- (Rosscup) signed who received some medical son attesting as July witnesses. On 15, 1941, treatment there. There was discussion lawyers there were four myself Bottineau, my going City between wife and about being one Mr. Adams. McIntyre over to Bottineau I Rosscup, my present to see Mrs. that was married to Eva day wife, October, nor was there such talk in the fore- in McIntyre Mrs. em- July ployed noon of About 15th. 4:30 o’clock B.' Rugby Harold Nelson of attorney July probate afternoon of 15th I received the estate of her hus- telephone band, telling McIntyre. call from Bottineau me H. McIntyre Mrs. John McIntyre McIntyre’s Mrs. an going to have Mr. filed will and later another operation asked that I and come over will filed and there was a contest and prepare original Mrs. I will. Stormon and will McIntyre filed Mrs. probate. left Bottineau around was admitted to somewhere I not did have envelope o’clock with me approximately there at Bottineau I reached brought Rolla, the will back my office brought my o’clock. I C. me L. placed a notation on the envelope and then portable typewriter Smith-Corona placed the will therein and sealed it. Later legal blank of a I did carry will. placed envelope I containing the will standard machine with legal me. I used the papers with other belonging to Mrs. McIn- will-; in writing blank We first went tyre in larger envelope. papers The other hospital and Mrs. I Stormon and principally were Savings United States up both went McIntyre. to see Mrs. Mrs. Bonds that I received from time to time McIntyre said: and I have some “John they were to me or sent me delivered to my business to attend to” and then wife papers her. kept These were in a metal up left and went town. I knew she was safekeeping my box the vault in office going down to the hotel see Mrs. Neri- years During practiced Rolla. I have glasses son. Mrs. had her on at Rolla I a good many drawn have wills evening during and I think she had them many of them have left with me not, on when I walked into room. If placed safekeeping, 'be in the vault. lying were on the I bedside table. quite present I a number at the time. my went to portable automobile for the My guess neighborhood would be case, typewriter my I brief at no time fifty. advised or' urged Mrs. to make plan I did will. the will. Mr. Stormon testified that Mrs. McIn- provisions dictated tyre’s property thereof will at the $4,500 resi- payable; July made so of the bonds consisted

made on purchased County $1,000 pay- in Pierce were made so in Wolford dence Counties. able. Mr. Pierce Stormon Mc- in Rolette and testified farm lands Intyre acres approximately 3800 to his came office in the forenoon in all There were ,'November 9, 1946, quarter in Rolette One and asked him lands. farm such prop- figure approximately out division of cash value County to her came envelope one the bonds. Cooper and title to took the con- Estate he erty in the County taining and the bonds from the quarters in Pierce or two vault, envelope opened death of metal box in the Mr. the time of name at the land laid the the rest of contents out where Mclntrye. Title to table sitting the final decree of on one and she by virtue of side on the came to her husband, of her other. That she asked tele- the estate Stormon to distribution phone president the time the will of the Rolette Mclntrye. At Coun- H. John was ty against mortgages State Bank ascertain if could were there she executed re- bring There were over some wanted both counties. bonds she to in the lands he in That answered in the affirma- against the lands deem. mortgages of record Bank tive and that she took the bonds to the Land or Land to the Federal Rolette County Bank totalling $10,500and a Rolette State about a block Bank Commissioner $1192.00, away and this at Traynor for cashed them. That was Tillie mortgage to back in record time she was North Dakota mortgages three there were complete to some funds to County totalling Pierce obtain needed against in the lands purchase guest in Flor- unpaid against house $12,300. taxes There were He ida. testified further that Mc- counties. In Rolette Mrs. in both lands Intyre adjustment him the of 1946that she told in fall County a contract for there was $10,000 sis- taxes, N.D.1937, getting was a loan of from her delinquent Laws Ch. Hong. That he had seen claim $2,100. ter approximately Mrs. 240, in the amount Hong against which es- unpaid. has filed The total Mrs. were also The 1940taxes tate executor the estate County and as he has unpaid on the Rolette due taxes McIntyre $2,424 that Mrs. ac- verified fact to without interest amounted lands knowledged obligation. That the first had The Federal Land Bank penalty. he had of the death of Mc- notice Mrs. 1939 on the lands paid taxes Intyre July 9th, re- on when he was There also a it had a loan. was on which telegram ceived a to that effect from her adjustment delinquent contract Hong, County sister Mrs. on the home and in Pierce taxes lands in Pierce and farm lots in Wolford Moffatt testified that he is cashier W. $3,300. County something over aggregating J. Bank at had Rugby of Merchants Mc- in testified that 1942Mrs. Mr. S'tormon capacity in working for the bank that been Government Intyre brought me certain acquainted he had 1928. That since de- the first bonds were I think bonds. McIntyre years. for about fifteen with Mrs. to me on the street. Other bonds livered time she during banking That that did busi- delivered to me at the subsequently were Bank, is, at the Merchants that ness bought in also additional bonds She office. patron banking of that bank was for about 1943,1944, brought which were and 1945 years. purchased put That she big all in fifteen United The bonds were me. kept. envelope Savings bank, in which the will was through Bonds brown States McIntyre purchased by purchased they directly Mrs. bonds were either Of the that bank or came in from by through to and one of so delivered held in that maturity the various bond drives were conducted in value contained Stormon $300 country. produced He joint payee throughout either name Stormon’s offered in evidence records of him in case of death of there was payable were purchased by McIntyre purchased Mrs. bonds in bonds which McIntyre; of the Mrs. duplicates maturity in effect of the bonds were made so were in value $700 These been issued. records purchased in had showed the bonds payable; stay I at July issued to with had been her. On of the bonds some connec- large Bottineau in McIntyre personally but that Dr. clinic at Mrs. Johnson’s my her and father issued to tion sometreatment number of had been them Stor- I received A. receive and while I was there payable on her death John hos- McIntyre had these records He testified that word that Mrs. mon. girl the pital. the bank since nurse or the been in the It was either the hands us clinic that told bonds Moffatt testified at the desk were issued. up see look us came to the bank desired hospital I father and Susie after her own affairs. That he oc- so and my hospital. She Rosscup up some of matters went casion to take care of bed, up. carried personally. slightly sitting loans. That she made several She others That he me and the she made loans which conversation with times asking personally. present. handled That transacted who were remember I us the tests business with Mrs. how felt and she told quite going through. My he one he made father was recalls loan which apartment kept at the time she at the bought picking restless and adhesive tape bandage He nose Florida. recalls a conversation with that held him joking saying connection with She I remember that transaction. large picking far She asked for a loan the bank was was too old to be his nose. appeared bright did at the intelligent unable to make but he make her loan to be and which for on. going he believes was The con- time and understood what was $500. respects her these as she bright versation that had with at that time In she was as normally McIntyre very intelligent was on an level. Mrs. That Mi*.Stor- was. was a bright mon never came to the bank in connection woman. the death of her hus- Since McIntyre’s during managed with affairs her band she had Mrs. considerable lifetime. Moffatt testified that he in amount of farm land in Pierce Rolette was and practically hospital the bank all the in again time. That he I was on Counties. husband, July. my that a the name of Park- the l'5th of told recalled man When I Stormon, employedby Mclntyrq man was Mrs. suppertime at one on the 14th John McIntyre anything time but he does not know hospital about that Mrs. we was McIntyre plans whether.Mrs. turned to Park- go over made see her to Bottineau to day. man blank checks to filled next in him. She did advise me when going operation. she was to have the She Eva I am Stormon testified: know, wife did not she was still tests. taking Stormon. We were married in 1917 On the 15th Mr. Stormon came and told me John and lived at have Rolla since we were mar- that he had had a call from Aunt Ethol to mother, My Rosscup, ried. Rosa was a sis- come and make her directly will. We went McIntyre, ter of Mrs. Mrs. Nerison and hospital at Bottineau. Stormon Mr. Hong. McIntyre Mrs. I have known Mrs. I and went to her in hospital room the to- I girl. ever since awas little also was I gether. She an carried on intelligent con- acquainted They well with her husband. versation with us. I asked her how she frequently Rosscup visited at the home when feeling was and she told me having about I girl was a little and also Stormon go operation through and that Dr. I home after and Stormon Mr. were mar- told her that she need have no Johnson McIntyre very ried. good to me. fear and asked how we had gotten she home I through- visited her and she visited me my with dad. She asked if sister-in-law years. out the She called me when her hus- I and would come to hospital and be be with through band died to her her with before she took the ether and also years have been we back and coming forth. she was Mr. after out of the ether be- McIntyre in died 1930. He died in his her home cause someone had people told that said in She called me the morning Wolford. peculiar things when such going were saying she he died alone said, and would I After talk under. she “John please go come be with her. I did a little business I have to take care of.” I the room to leave matters arising an invitation in connection with hus- took Hotel, estate, making the Stone

and I did leave. I went to band’s also reasons for num- for the problems asked her will 1931and I went the desk and called room, up I went negotiating for the loan she was ber Nerison’s of Mrs. purchasing She writing letters. that was time she was Mrs. Nerison surprised guest and I told to see me house in That carried seemed Florida. she called Aunt Mr. had been conversations and those interviews as Stormon business, person and intelligent Ethol to over on a little That he saw Mrs. come would. up down during went walked at various times we outside and and looked on the We went over at 1940 and and that at she street. all times in- flowers Mrs. carried on conversations and business Dr. Johnson’s Johnson 'garden. an intelligent person look at her I as would us to come and do. she vited appeared entirely competent having conversation with Mrs. to be to handle remember reference to her will in 1947. business. my home at Rolla. I discussion Hong, Mc- Ada testified that she is Mrs. lunch getting, kitchen Miami, Intyre’s sister, was in at the kitchen came and sat down table. McIntyre’s Florida, at time Mrs. said, “Eva, I this is the last time will She July death 1948. That Mrs. McIn- Miami, you before I and there see leave tyre years was 72 old when she died. That tell I left something you. I want to Wolford, had a home at you considerable, my realize af- but I Dakota, lived North where she had that it a man to handle fairs takes men. many years (guest had a also that she house administrator, you my but I want John see to it that Howard and Dean Miami, Florida, house) bought (sons there six (the in 1946. That sisters get Stormon) Mr. and Mrs. each the thou- Cooper is, four sisters other sisters) sand dollars Uncle wished them to John McIntyre Hong. Mrs. That than Mrs. said, “Ethol, girls I the have.” after 1920 all the had left sisters North Why like that. done well. Catherine has except Rosscup (Mrs. Mrs. Dakota Stor- your you do for administra- her iñother) McIntyre; (It ap- mon’s and Mrs. answered, tor?” She “I do not want Cath- pears McIntyre that Mrs. in the record said, erine.” She “Catherine Ada have 1894). her husband in were married Mrs. plenty worry much to about al- and too Hong marriage testified that after their ready.” McIntyre usually Mrs. and her husband went for testified that he is at to Florida or the Isle of Pines the Harold B. Nelson they spent That winter. sixteen win- judges some district of present one of the ters on Isle That Mrs. Mc- Pines. being before elevated to that state. That Intyre correspondence took a course in Law. practiced law position Rugby in he since McIntyre in That Mr. died 1930 and that he at- during that time was an That 1916. McIntyre after death Mrs. his took over McIntyre torney for Mrs. and acted her management farms that Mr. Mc- attorney involving proceeding in the Intyre owned in North Dakota at the time involving her will wills hus- probate of a or death but that she at time one em- estate, personally he That handled band’s ployed one Mr. Parkman aid in such probate proceedings. substantially management. Hong up- Mrs. testified attorney for Mrs. Mc- he acted as That also McIntyre Mrs. on the death of she wired probate subsequent to the of her hus- Intyre informing him prepared Stormon her death. That a will for estate. band’s John McIntyre always also testified Mrs. That he assisted her with She had in 1931. those dates in case her death to in 1946 between she told her wire her loan a notify attorney matters. Mr. Stormon him on various That him. in That consulted McIntyre McIntyre did with Mrs. Mrs. not tell her contacts he would the various happened her affairs if anything handled business look after personally affairs. she many but that she tell with him times to her did her that he she discussed That agreement provides she was the event farms while in would look after Hong testified loss guest of the house is made at a Mrs. sale away, for instance. purchased $5,000 McIntyre over Hong then Mrs. is to receive that after Mrs. requested that $10,000 agree- of the she and above in lieu house in Miami guest in money go profits. first ment made for one-half of the Hong some loan her Mrs. guest presented house. agreements Such with the purchase in are with her support Mrs. note in November of the claim filed Mrs. That in October or McIntyre $10,000. county against in the Es- Hong court Hong loaned Mrs. $60,000 prop- McIntyre. for the McIntyre paid tate of Mrs. Mrs. propositions erty, various that she made Hong July, Mrs. testified that in sharing in the Hong Mrs. relative Domberg one Mrs. who at that time was she did not profits guest house guest guest paying in the house offered to disposition other than arrive at final manage guest take over and house until $10,000 gave Hong a note that she Mrs. McIntyre (who Mrs. about That that ob- amount the loan. for the trip to leave and did leave North on a Hong Mrs. owing and that ligation is still Dakota) came back to Dom- Florida. Mrs. Mrs. a claim the estate of against has filed did berg manage so take over and guest owing money McIntyre amount of until house Mrs. returned from n on such

to her note. trip to North about Dakota Thanks- giving Hong testified that photostatic copy A of the note was of- December 1947 Mrs. wrote and part evidence as fered received asked her to return that did return testimony Hong. of Mrs. The note December, 1947, and again as- payable bears date November sumed of assisting duties Mrs. McIn- on demand and bears interest the rate tyre operation guest house. annum, per per payable ten cent interest again That she was called home to Minne- semi-annually. There was also offered May, sota in and returned Miami evidence of the testi- received about the middle 1948and June mony photostatic Hong copy of Mrs. aof again assisted Mrs. in managing contract dated on the same date as the note. guest house from the time she returned handwriting This entire contract McIntyre’s until Mrs. death. Mrs. June McIntyre, refers to the loan Hong testified also that while she (Mrs. promissory provides to the note and that gone Hong) Minnesota Mrs. Mc- Hong may Mrs. elect use the note or the Intyre whereby closed the deal Hong Mrs. acquire monies therefrom to a one-sixth in- house, bought located about two blocks guest payment terest in the house in of lieu guest from the house. note and in event of such election she is a one-sixth entitléd receive Hong interest Mrs'. concerning testified Mc- Mrs. proceeds Intyre’s in the net and in last physician the event of the illness and the who performed attended her Hong, $10,000 death and operation. Mrs. and accumu- McIntyre She testified profits lated interest that Mrs. and or both shall be had been paid to her taking children. treatment from a chiroprac- There also of- firm of and consisting fered received tors evidence as husband and and wife testimony they Hong of Mrs. agree- another had advised her to consult a cer- May 1, 1947, ment dated tain doctor in written Miami and by Mrs. that when this be- McIntyre, referring to the fact McIntyre’s that Mrs. came known to friend, Mrs. Mr. $10,000 Hong had Davis, furnished used stop in the he tried to it. That she (Mrs. purchase guest urged house that her Hong) get and that sister said the best guest $5,500 house is listed for possible. sale at care medical That Mr. and Davis paid hospital excess of the amount she to the for it went but stating Hong and that Mrs. McIntyre further that promised Mrs. to walk the was unable stairs and Mrs. that Mr. $10,000 Hong logical and in was the urge addition thereto Davis one one- her to profits sale, care, half any; get (Mrs. she if better Hong) such had a 49á “Q. at- carry who And did an intelli- physician she with conversation performed gent McIntyre you conversation with at time ?

tended Mrs. words, a doctor In other back and urged him to she conversed operation and you to do so. refused forth with he discussed things, consultation right? death Mrs. after A. No. She testified and at- Dakota to North McIntyre went she “Q. say you, What did she if shortly exercises, that funeral tended anything? Well, A. telling she was living the other she and funeral after the me wasn’t feeling good, she she had to Neri- McIntyre Mrs. of Mrs. sisters doctor, see and— home at Mr. Stormon’s met son’s husband will and read the Rolla, that Stormon “Q. anything Was there that was learned time she the first that that not normal as far as conversation the will. provisions you? was concerned that she had with Oh, pretty tough. at times felt A. she as called Hjelmer Orvedal who Mrs. She couldn’t visit like she to. used testi- contestants in behalf witness “Q. you, But she talked to didn’t about lived at Wolford has fied that she she? A. Yes. land from rented years. her husband That the same McIntyre and farmed Mrs. “Q. And there anything wasn’t ab- during That years. some normal about her conversation with great McIntyre a with Mrs. in contact you, was there? A. Not at that time. during such time That time. deal of the knows, was, McIntyre as far as Mrs. “Q. After she came out of the hos- far and as as her sisters friendly with pital, you say good, her condition was friendly with all relations onwas observed Well, is that correct? A. after an family. That she oc- the members operation your good condition isn’t too them casual conver- casionally mentioned time, she wasn’t either. kindly man- of them in a spoke sations “Q. I right mean f eeling she was McIntyre friendly was a Mrs. That ner. you Well, far as as could see ? A. employed That she one time woman. good expected.” felt way That in a Parkman. named man That at one manager of farms. Hjelmer Orvedal as a called witness McIntyre in blank signed checks time Mrs. the contestants I live testified: at Wolford Parkman fill them out in and allowed lived years. and have there for 29 I was operations. farming connection acquainted with Mrs. ever since the time about she saw I came Wolford. I farmed lands for her hospital to the in Bottineau in she went years spring of 1940acted days or four July, That some three farming opera- as overseer some of her hospital went before I In 1935 tions. saw a man named Park- her her at That Mrs. Mc- she saw home. represented McIntyre who man Mrs. on Intyre feeling very not well. That she relating to her matters lands. Mr. Park- McIntyre she came saw Mrs. after out also some man had checks that had signed McIntyre That hospital. Mrs. and McIntyre by Mrs. with the name of the back and visited forth. That she her sisters payee and the amount left blank. He came McIntyre’s in Mrs. never house when relating crop to see me to settlement for the McIntyre was writing letters to her Mrs. I on had land farmed. He filled by reason of what Mrs. McIn- bub sisters my gave amount name me the tyre different times she knows that said at couple he check. I think had a more blank correspond with That them. she she did at the time. I hap- checks did not see this McIntyre except Mrs. two or three pen on that visited one occasion. As far as hospital. McIntyre’s went she She know Mrs. relations days before I with her always friendly. testified: sisters were I do think further any say anything against paid when I ever heard her she me for had a conver- it we in her home in Wol- quarter her sisters. I was sation. She offered me to sell a quite Mc- ford a few times and saw Mrs. section of land. I was not interested and Intyre Nerison fre- buy her Mrs. did not sister the land. She said she had no quently together I children visiting downstairs. but it was her intention to leave any riendly property between her never saw unf relations to her equally. sisters She them. said she leaving property her to her many sisters. She did not how sisters say Mundy testified as Robert was called and she had or thing a about I it and did not He testified a witness for the contestants. any questions. ask say She did not wheth- Minneapolis he since has lived in 1918. er she any- had or made a will or That his were mother and thing of that. That is about all the con- sisters. That he and his aunt Mrs. Mc- sell, versation we had. She wanted to Intyre always That good terms. land I buy and did not want to it and I told strong family loyalty between there was a my response. inso Cooper (of which Mrs. McIn- sisters W. Greer was O. called as a witness they robin tyre one). That round wrote the contestants. He testified that he lives corresponded back each other and letters to Miami, Florida, in north engaged McIntyre visited his That Mrs. forth. the real estate business there. That he frequently mailed a and once mother acquainted first became with Mrs. go to enable her to to California ticket winter season of 1930. That visit her sister Catherine. stayed at she the hotel which Greer and Mr. wife were operating. his than That she a Knutsen called as witness A. O. One frequently opinion asked his and would act testified that he resides for the contestants accepted on his That advice. she also California, formerly he lived at in“ strangers. advice of That about 1930 or acquainted with Wolford and became staying 1931 a man at the hotel interested in 1910. That between her in a roulette wheel plan and some for occasionally. corresponded they playing winning game. That he did not anx- she in 1937and was was California really know how much it cost but she said ious that some cleaner which had com- money lost some on it. That she asked pounded should be success because she thought him what about it he and he said money make some so she could wanted to did not think it could he be done. That he because, sisters it to her did not leave spend did not think she any money should think she would ever be able to make guest or time on That she bought it. money from her North Dakota farms. That in Miami. That she ask house did not sisters, her attitude toward her nieces and advice that and he did not know she was very nephews always favorable and buy planning to it. That she wanted many told him times (Knutsen) that she small house any- could not find very good had been to her her, thing bought and later she day them to that some she wanted paid $60,000 guest house. She said she everything anything and she had. That That the was listed it. with his last time he saw and talked to $50,000 company at but he understands that never was in 1937. made state- She Keyes people (a real estate broker in after 1937. ments to him $67,500. Miami) took it at That he did not $60,000, Clarence E. Follman was called wit- as a think it a sound investment was at compared the contestants and I ness with other values at the testified: time it vicinity years. in lived the Wolford some 45 was not worth much. On the 'market McIntyre $45,000 I Mrs. and her late met husband. that time been a good at would have McIntyre I imagine price I knew Mrs. for That about for it. he understands the fur- years. knew who she I was when I niture was sale. That in 1933 her, spring that is all. In the considering taking long met of 1946 was she time barley bought she some seed from buildings me and lease on two and she wanted him easy cases, her yes; told it some It was That he some no.” for her. manage it to people She get undertaking might for to make friends with her. and big was too usually accepted people her “I their value. He to at face said of trouble. a lot her into infatuated, you you” very the deal She would become with and go into refuse to say. might months later At a time when she was a few through. That dropped long trying hotel to sell her a taking a there was a man consideration she under had repair- great He was a roulette wheel. schemer building and on another lease always books some selling and was some and he That wife his ing a hotel. it into something scheme or and he came in one matters two In these of it. her out talked day wheel and with this miniature roulette into before going him with she consulted play this they nights around and would sit advising her ad- his and deal me telling got roulette wheel and then she judgment and versely abided she they system it. about had a that would beat That he would transactions. abandoned They It was make rich. went going to them very nice McIntyre was say Mrs. places to Beach where out Miami and woman. trying put thing to over. In the by the con- as a witness spring called for North Greer she started Dakota Mrs. McIntyre way check- changed that Mrs. her testified somehow she ticket testants 1930 and the fall of up hotel in another route and to ed into their took went from that off and on me got knew She told it when she that she her Reno. about Mc- That Mrs. when It not a I do her death. success. not know time until back. deep any money. trouble put she was Intyre came whether she There were contesting her her about people projects told them came with like num- she streets, she with her That bering will. I believe she invested some husband’s money stop- the five winters that during but I know. We don’t considerable learned ped many That she doing things the hotel. her she was at wanted she poor judgment. affairs her her business to do because it was She much about went, McIntyre pur- back to plans. my That Mrs. me and husband discussed with purchase back to just came of real estate North Dakota chase before guest bought guest to in 1945 and house. She said she wanted Miami sister, Hong, up who buy That Ada me go a small house. She asked to house. guest trailers, for running days house Mrs. look at with and two purchased guest sick and Mrs. we before house she park told her Greer and she wanted to the trailer went down look called her, trailers, and that she house into town next guest and she came sell pay able to morning nothing that she would said with Mr. Greer. She answered house, guest $60,000 talking for a that Mrs. Mc- guest about the house. She away going buying sister Intyre leasing said about one that time not guest purchase on the house with- she carry could one. She did not discuss help. That she guest out her or someone owed with before buying house me it. $15,000 and that without about sister After death Mrs. I had bought place Domberg, could not that she with conversation it was it, I’ll you said, “If consider make said and she “You about will be a it, you Stormon, own because what I want is you?” able won’t witness John life,” my said, anything here rest of know just and I “I don’t about it.” a home “Well, said, know plenty you And Mrs. Mc- left “There will she said: b.e very competent Intyre was a woman” and I’m fight gone, over when and I them know that. I don’t about Mrs. Dom- I said place.” take you to want operating guest I berg is now house. person go very and would trusting awas employed by the curator heard that she persons she became go would out and do so. strangers with, on a busi- even acquainted witness con- “Q. Then she of Davis called as a was a Bruce ness venture. es- Well, is in the real in testified he or not? A. testants nature suspicious than her had known less he knew before death she tat-e in That business Miami. enjoy a not days. and ten That the doctor does of 1926 part from the latter people he very reputation good among she re- for her in transacted business he of Mrs. was from knew posed last time knows. That what That the trust him. quick say he would that she was out some lots in 1926 when she sold being accept everyone’s Gables, ex- to intentions county she of Coral section good. North was á man the name she left for the deeds before There ecuted matters Currier lived across from them who closing Dakota left the and contacts Coral some Up he had Gables borrowed with until 1941 him. her, money from him that she had known while her husband with her. In 1926 only very alive, Mc- a time. He borrowed and his wife and Mrs. short Davis buy apart- money buy he adjoining to a boat and never did Intyre her had husband easily. very the boat. The amount of the loan friends made ments. She $1,500. he been conre Davis testified has times would There were when.she real estate people told her which business on off since 1931. things him with had That he was in the hotel entirely she ac- business before of line which out for year the last has in both 1934 she came cepted as fact. In 1933 or a hotel and real Mc- a roulette estate business. Mrs. with miniature to the house Intyre easily accepted people’s purchased some- other state- wheel that she had in- being wheel ments as She was system playing for correct. one a lose, had clined to discredit them. From the ex- you she could not sys- perience knowledge he with her and many test the had his the wheel times to used he system she of her thinks she was less was OK. and more or and the tem advantage by per- the vulnerable to her to be taken go him out with one wanted unscrupulous sons inclined to than places she would furnish business gambling average person. playing. years he has money and he was to do the Over say great on his known her he would she of a trust- talking it a deal of That took ing part there was no such nature. The characteristics he de- her has convince present during wheel he system play the roulette scribed were thing a purchase knew her. He go did with her because he knew and he never guest in it. That the man who house Miami. not believe did living them, At the time she proposed her was a to sell this wheel with had she his looking told wife she was a for knowledge her he stranger. From his Sep- small five-room house. That was in say very trusting was a woman. would she October, tember first 1946. He quite religious a He She was woman. does working arranged at the hotel he so paid know much she man for how for her use one of the chauffeurs an- wheel, couple dollars the roulette a hundred got swer some she paper. ads out of the opinion had value at least. at night when name she home she told quickly He she stran- all. thinks received bought him guest she had a house for gers and them. a relied on She had cor- $60,000 and day wanted him go next poration They cleaning sold Florida. quite surprise and look it. This was compound. His father was working as he did not know she had intentions time, they attempted at the her several making purchase kind. When put get times to this business on go by he inspected did next day and they thought paying basis, what would be a property, he told her he thought had it, way and businesslike to handle she was paid it, much money too for and that she very operations. lax about business replied wanted, that is what she easily. if She made friends She one much, why, paid too she still manager time a business wanted the farm's in Dakota, who, him, property. North This told took ad- was listed with the Keyes forty vantage Company of her several occasions and thousand dollars money. He cost considerable The doctor some time that. testified before performed operation shortly who wife went and his to North Dakota and going with Mrs. Mc- and traveled back Florida she never told him she was fact, in Intyre. $6,000 with her she she had remember him in That her will. years she had from wheat never last few checks that received discussed it. In the That her getting that had sold from her farms. seemed be rather memory they camp at stopped overnight talking tourist bad in sometimes re- at a and she would Dodge City, peat the next That morn- He recall that that Kansas. herself. does not McIntyre 1940’s, ing say the room oc- in in Mrs. came to existed back 1940. cupied by Mr. and Davis and said Mrs. Domberg called as wit- Mrs. Christina money. someone stolen her had That she petitioner ness that she first testified large going had a through suitcase in and acquainted McIntyre became in with Mrs. that the checks were found. She had the Domberg’s at that Mrs. 1947. That time in checks the suitcase the time and husband, who is a commercial traveler and pocketbook. thought had them she in her Orlando, had was been transferred from very things She was careless about of that operated by staying guest Mrs. house kind. He never met Mr. Stormon. She Domberg McIntyre Miami. That Mrs. told him several times he that was attor- spend went to Miami several times week- ney. The last time was when she went ends with her husband thus became ac- and north get she money and said she quainted McIntyre. July, with Mrs. That in attorney would complete have to see her McIntyre Mrs. told her she was purchase only the house. That is the going to Dakota and asked Mrs. North except instance he recalls the fact for that Domberg manage guest house while 'Cooper (in Mr. Miami) and Mr. Nelson gone. Domberg agreed she Mrs. (at attorneys. used to Rugby) be her He agreed to do and it was between them had heard talk of times. them She paid Domberg that Mrs. for never discussed her him will with and she percent services a week and five $18 never discussed with him her relations gross during the time she income served. her sisters whether and or not she wanted McIntyre’s That it was intention to be Mrs. to remember them in her will. He heard only weeks, gone for about six Mrs. and say around 1933 and 1934that she Domberg testified that conversation up. was hard He heard financial McIntyre proposed regarding with Mrs. picture improved after the advent of the trip her that “I told she didn’t have to be improvement war price and the of farm back the end of the six if she weeks products farm land. trend in the needed time to more take care her busi- Miami beginning real estate market ness, in 1945 days a few more aor week or so continuing say up, through 1947 me, any wouldn’t make difference to was the most radicial increase real es- to take of all her care affairs she was while tate values that have observed here there this time so that if she want didn’t trip since 1925 year real estate market to make the the next wouldn’t she very high to, that was true with re- have was in that conversation spect improved unimproved ‘Well,’ to both that she mentioned her will. she property. will,’ In the spring said, you my says, of 1946 mean she T restrictions ‘if ” years placed ago.’ building made that several That Mrs. so that one ex- cept priority return from North the GI someone who had did Dakota just building Thanksgiving. That could obtain material. until before The man again purchased manage- her return she over the took whom reputable house Mrs. guest Domberg identified with a ment of the reliable real corporation having and her into their estate been in husband moved own business years. waiting had been or 30 home which for Miami for them The lots September. which he sold west first of from the Mrs. Dom- Miami, reposed McIntyre’s the trust him in berg sister testified predicated upon was not in Miami at (Mrs. transaction was Hong) friend- years. promised time that Mrs. ship during of some was in She never and that anything him North Dakota never favors did for her met

499 her Henry who were Middaugh to and returned Mrs. after she Hong until Mrs. neighbors Lakewood, of Devils Mrs. at a suburb 1947. Thanksgiving, Miami after Lake, they to visit when drove to Bottineau Mrs. Domberg during the time testified that McIntyre Mrs. when she was hos- (Mrs. McIntyre McIn- in Miami she was pital en- guest Middaugh That there. Mr. actively charge of in tyre) Duluth, practice gaged in of law incident matters house and looked after going That to Duluth Mrs. Mc- Minnesota. That before carrying on the business. to practiced years he had for number of and han- law Intyre very was a smart woman Middaughs Domberg Devils Lake. That tes- her well. Mrs. dled affairs nearby Grinaker’s had home Miss had Dombergs tified that moved after up home at kept Middaugh her Lakewood. That Mr. Domberg their into home Mrs. September, died in two McIntyre, they some months talk- with that contact Mrs. accompanied by telephone, after he and his wife that she each went ed to other Miss Grinaker had Mrs. McIn- McIntyre and that visited Mrs. over visited home, tyre hospital their Bottineau. That Mrs. McIntyre at times came to Mrs. Buttz, McIntyre, iff Mrs. the wife the dist- McIntyre left car that Mrs. had Lake, judge trict at Devils Grin- frequently and Miss she went North Dakota Duluth, Minnesota, by aker to them, they drove car riding at times ate with Middaugh’s attend Mr. After the together in some funeral. meals restaurant. Middaugh death of her husband Mrs. re- McIntyre discussing her affairs with Mrs. up turned to Devils Lake leaving any and took her resi- them stated that she dence at Lakewood. money Domberg That in Mrs. Mc- Mrs. sisters. Intyre came to Devils Lake and May McIntyre visited 1948 Mrs. testified that in Lakewood; Middaugh Mrs. at her away home at plans going had for stated she that she also visited Miss Grinaker. Miss requested Mrs. for the summer she Grinaker testified that in the manage course of a Domberg back and to come previous conversation she then had with Mrs. guest as she house done McIntyre, McIntyre in referring Mrs. Domberg Mrs. testified that the summer. provision what she intended to make operation who as performed the Mrs. doctor, disposition property of her in the event McIntyre duodenal ulcer one stated, my of her death “I specialists intend to performing in Miami in leave property to type. Stormon.” When operation testified that asked of that She John if accompanied she recalled more of con- Mrs. doc- up versation which led McIntyre’s to Mrs. day tor’s office the before she entered the what going statement as to she was to do hospital. She testified that Mrs. with her on her death Miss Grin- expected hospital leave the come answered, might aker “it have been on ac- day the next home a thrombosis count of Middaugh’s probating developed during night which caused husband’s estate.” present That she her death. hospital pointed out, when died. As has the trial court only determined that there ques- two Ann Grinaker was called as a witness tions to be submitted jury, namely: petitioner. testified that she came She question (1) testamentary capacity, in 1904 and has to Devils Lake lived (2) undue influence. in- The court or its immediate vicinity Lake con- jury Devils structed the up- it was incumbent exception tinually of the times that question on them to determine first the parts testamentary capacity nursing has been other and if found public county. That she attended the that the testatrix testamentary lacked ca- Lake peti- of Devils and that the pacity schools that this would end their delibera- unnecessary would-be Stormon also tions and it attended them tioner such John question consider or determine the at the same time. That of un- schools is a Upon graduated there due influence. trial was no nurse registered such in attempt indicate that the accompanied 1941 she evidence That in Mr. Estate, was offered Scherrer’s received N.W.2d was offered and Wis. testa- specific incompetency 848. And that mental to make bearing question clear, upon by a will mentary capacity or “must be established con- course, and, of the vincing satisfactory some and In re undue influence evidence.” questions. Estate, 265, Sawall’s bearing both 240 N.W.2d had a Wis. 3 evidence 373, See, also, we 375. Hence, summarizing the evidence In re in Olson’s Guardian- ship, 301, attempt 24; restrict or sum- 236 Wis. 295 Will have made no N.W. Grosse, only pertinent supra; Will, or relat- In re marize evidence McLeish’s su- capacity pra. testamentary ing and all that has been offered evidence state, The laws of this in force at the summarized. received has been time of the execution of' the inwill con- troversy, provided: law in this state It is the settled ground “Every person on the age where will is contested eight- over the years have sufficient mental een may by testator did not of sound mind last capacity dispose estate, to make a will the contestant has will of all his real and ** by competent personal establishing C.L.1913, the burden of evi 5640; § 1943, that at the time the will was made dence NDRC 56-0201. testamentary the testator did not have ca “Every estate and interest real Smith, 109, pacity. 224 Black N.D. v. 58 personal heirs, property hus- Gerwien, 915; v. 41 N.W. Edwardson N.D. band, widow or might next suc- of kin 506, 171 N.W. 101. While there are au C.L, disposed ceed by of will.” adopted thorities to the the rule contrary 1913, 5643; 1943, NDRC 56-0204. § adopted many this state has been states supported by many and is decisions testamentary “A disposition may be Burr, 510, courts. Leach v. 188 U.S. 23 S. tp any person capable made by law of 393, 567; Ct. 47 L.Ed. Brosnan v. taking disposed of, so ex- Brosnan, 345, 117, 263 44 U.S. S.Ct. cept corporation that no can take under 332; Mayo Jones, 68 L.Ed. v. 78 N.C. will, expressly unless by authorized Will, 402; 336, In re Burns’ 121 N.C. C.L.1913, 5644; statute so to take.” § 519; Will, 28 S.E. In re Brown’s 200 N.C. 1943, NDRC 56-0205. 440, 420; Estate, In 157 S.E. re Sexton’s will, “Every nuncupa- other than a 759, 778; Cal. 199 251 P. re Smith’s Es in writing; every tive must be tate, 505, 254; 53 Ariz. 91 P.2d In re Han will, other olographic than an will and Estate, 207, 256; sen’s 50 Utah 167 P. In re nuncupative will, must be executed Estate, 274, 947; 40 Greene’s Ariz. 11 P.2d and attested as follows: Estate, 1356, In re Heller’s 233 Iowa 11 N. It “1. must be subscribed at the end 586; Hayer's Estate, W.2d In re 230 Iowa thereof himself, 880, testator or some 431; Bryan’s 299 N.W. Estate, In re person presence in his .by his direc- 82 602; Utah 25 P.2d In re McLeish’s tion must subscribe his Will, name thereto. 209 245 Wis. 197; N.W. In re Grosse, Will 208 Wis. 243 N. subscription “2. The must be made also, W. 465. See, 2 Page Wills, Life presence in the of the attesting wit- edition, Sec. authorities col nesses, or be acknowledged the tes- 3; pp. lated Notes 447-448 tator to them to have made by C.J. him and authorities collated in Notes 43 'authority. “3. The testator must the time of subscribing or acknowledging the same Supreme 'Court of Wisconsin has declare the attesting witnesses that parties alleging held that that a testator did will; and, instrument is his capacity mental not have sufficient to make a con-, clear, proof, by the burden of will “4. There must be two attesting wit- vincing, satisfactory nesses, evidence. In re each of whom must sign his carefully has ex of this the will member Court at the end a witness name as on the will signature the testatrix’ in his amined request and the testator’s compared with her admitted same C.L.1913, S649; NDRC presence.” § prior executed on the will signatures 56-0302. 56-0301 Sections checks, signatures let in 1931 and proceeding involved will offered other exhibits ters and section with the conformity executed signatures in evidence. Those and received quoted. The last above code signatures of the to be the are admitted presence by the testatrix subscribed signatures of ante testatrix. Some these sub- signed as who persons the two of the will and some dated the execution of of sub- At the time scribing witnesses. subsequent to made on different dates were instrument that the scribing declared signature the the execution of will the and re- testament will and her last in testatrix to will here the the of signed as at- who persons two quested the normal, every respect natural is the in names as sign their testing witnesses of testatrix. signature the characteristic sign their did they witnesses such signature affixedon line that The is presence in the attesting witnesses as names provided signature for the of the testatrix. presence of each and in the the testatrix of firm, It in natural hand. There was affixed a its by court in the trial was said other. As or nothing to indicate weakness jury: instructions part difficulty of the testatrix in on the writing her name. No nervousness or undisputed G. Mc- that Ethol “It is apparent. signature trembling is 1948, July, of Intyre in a resident died clearly firmly. It has been said made County State of of Pierce and by signature testator or that a normal Dakota, prop- that she left North the case be to dis testatrix “tends erty County of said within Pierce. It prove physical mental and weakness.” 57 by parties is further conceded Wills, 109, p. Am.Juris., 108; In re Sec. G. on the the decedent Ethol 430, Keen’s Estate, 737; 299 A. Pa. 1941, duly July executed evening of Simpson, v. 358 Mo. S. Adams evidence, July in the will dated 908; Estate, 16 In re Arnold’s Cal. W.2d two presence in of witnesses to 573, 107 P.2d 25. 2d declared it to be last whom she testament, pointed has out the of As been laws and which said wit- will and at the presence in force time the execution in the of the state nesses testatrix provided controversy presence of the will in other and in each nuncupative every will other than will request signed the testatrix writing every must be and that will other such witnesses.” will as nuncupative olographic and a than an will Upon by the trial the will was identified must at the will be subscribed end thereof subscribing himself, the two witnesses as will person by the or some testator by the July by executed testatrix on presence his his direction must sub- 15, 1941, then affixed scribe his name thereto. That such sub- signatures attesting their presence The scribing witnesses. had in the of the must be will was offered and received in evidence attesting acknowledged by be witnesses or appeal. and is by the record on this by been made him or the testator The record contains many authority. other instru- That the testator at the time his testatrix, signed ments most of which subscribing acknowledging same were offered evidence attesting contestants must declare to witnesses that including will; which the testatrix made is his the instrument that there must n in 1931 and certain letters and writ- attesting checks two witnesses each whom signed by ten and her at sign different name the end times. of the will at must will in this request presence. involved action and in his was writ- the testator’s upon legal C.L.1913, 5649; 1943, 56-0301, ten blank containing a line NDRC § signature Every testatrix. The will involved in this 56-0302. contro- her- versy purpose testatrix “The legislature re- was subscribed presence attesting two quiring self witnesses to attest and sub- subscribing undoubtedly and at the scribe the to de- witnesses to the at- something instrument the testatrix declared mand more than the mere upon writing instrument act testing their names witnesses requested attesting ‘witness,’ two word will. The and the word namely, witnesses, physician imply attending ‘attesting* both witness attorney knowledge Dr. and Mr. Adams at must have some the facts Johnson law, attesting their sign concerning names as wit- the execution the will.” Wills, They Edition, Page pp. did sign so their names and Lifetime nesses. 622-623, appeared both of these witnesses and tes- Sec. 344. person tified the trial the district Jurisprudence (57 In American Am.Juris. They court. cross examined 302, p. 232) Sec. it is said:

attorneys for the and their contestants tes- timony has summarized above. The hold, excep- “The rare cases impeached witnesses were not or their tes- tions, it the an duty attesting that is of timony Johnson, contradicted. Dr. the at- subscribing or witness a will to to ob- tending physician, that during testified the judge capacity of serve and the mental hospital the was in he testator, of satisfy the and himself of' frequently had occasion to visit her and talk the existence thereof. Such is- duty her, he with that did not observe men- said, corollary, duty it is to see to his ailment, very tal that she was a bright signed the will or to ascertain other- that woman and at the time the will was ex- signature wise that affixed is the carried ecuted on a conversation with signature of the testator.” Dr. with Mr. Adams and that Johnson See, also, 79; Annotations 35 A.L.R. perfectly it was a normal intelligent Estate, re Mitchell’s 41 Wash.2d conversation. P.2d 395. laws Under the of an attesting this state Corpus (68 says: 673) Juris a will C.J. witness to knows that he is acting attesting as such He witness. is not in the very applica- of general “It is a rule dark as to the nature of the instrument only tion that witnesses attest not the- which he his subscribes name an attest- by of execution due the tes- He ing witness. has heard the testator or tator, capacity but also his mental to- testatrix declare that it his or her is will as will make at the a valid time of the ex- the case be. signs ecution thereof. One who his name to a will as witness thereof assigned de- Courts different reasons mentally clares that the testator purpose requirement ca- that a pable will, making by certainly of attested will must be witnesses. 57 Am. Wills, person no credible intelligence of Juris., p. seems, Sec. would- It however, an obvious, knew, attest such instrument if he that under a statute like believe, specifically had reasonable requires ours cause to which capacity testamentary wanting. testator declare If' instrument is his the witnesses think the will must be testator lacking subscribed the testator capacity in will, to make a presence they in should attesting witnesses they their attestation.” refuse must attest will in the presence of the testator in presence Lincoln, 236-237, In Chase v. 3 Mass. the- purpose of each object other Massachusetts-, Supreme Court of Judicial attesting something more than to mere- said: ly the execution witness of a document and proof to furnish signature legislature, “the three requiring sub- of the identity testator scribing will, instru- witnesses to a did not ment attested. contemplate the formality mere sign-- might do make himself an attesting .An idiot witness their names. ing placed will; round are and it is do declared a fraud so to These witnesses this. when judge has ascertain and witness doubts on testa- the testator * * capacity.” capacity, tor’s Custer, Pa. v. In Werstler testimony Reference is made to the Pennsylvania said: Supreme Court Knutsen, Mr. Follman, Neri- Mr. and Mrs. say relating son which they statements subscribing wit- duty of “It is the McIntyre, were made them testator’s be satisfied of the nesses is argued shows that she did not know of instru- subscribe before sanity existence involved subscribe man will honest ment. No proceeding. Mr. Knutsen testified he any other instru- to a a witness formerly in California; resides that he man, an insane an executed ment acquainted resided Wolford became idiot, manifest- imbecile, person or a with Mrs. in 1910. He testifies per- any reason incompetent for ly deposition taken November 1949. ques- effect, form, the act legal He states that in 1937Mrs. witness duty attaches tion. A California. She then told witness that competency satisfy himself compounded she had a cleaner which she his name lends party before very anxious should be a success be- the act.” to attest cause she wanted money to make some so 67, Leonard, 154 Ind. 56 In Stevens v. she could leave it her sisters because 446, Am.St.Rep. Court 27, 31, 77 N.E. didn’t think she would ever be able make any money said: from her North Dakota farm sisters, land. Her attitude toward her possible thought cannot be "It nieces, nephews very favorable. man, ordinary intelligence, honest very She said good had all been to her a witness his name as subscribe would day and that some she wanted them person by a executed instrument to an everything have that she had. of unsound he believed be whom constraint. under coercion or mind or Mr. Follman testified he lived voluntarily a man The fact that such forty-five in the Wolford vicinity for some himself with transaction identifies years and had known Mrs. is an indication that a witness as thirty-five years. about He said: “I knew person opinion executing her, who she was when I met all.” that’s competent to do so. The is instrument spring bought of 1946she In some seed to attest must be understood witness barley him and he had conversation signing, act of but also merely the paid with her when she for it. She offered capacity of testator to mental quarter to sell him a section of land sign.” children, had no said she but was it property intention leave her Will, Sur., 139 re N.Y.S. In Schmidt’s equally; leaving sisters that she was 477, 464, Court said: say sisters. She did not required “Attesting many witnesses are how sisters she had or whether seeing, purpose the first for the made a she had will. The will instance, 15, the testator was in such July was executed 1941. conversa him to as enabled make his a condition tion with Mr. Knutsen was some four will; and next that executed years execution last before the conformity and in free conditions Follman under that with Mr. was more than four testamentary regulating years the law its execution. with after Both these point dispositions. attesting If an witness are conversations of time. remote Testimony score allegedly doubt testa- as oral statements has competency, persons he has generally no business to deceased tor’s made re- 504 * * Estate,

garded kind of evidence In as the weakest re Lekos’ 109 Cal. C.J.S., scrutiny. App.2d 42, 387, subject 31 240 to the closest P.2d 389. Estate, Evidence, In Re Carlson’s 266. § respect to of incom With the issue 963, 965, the 81, Ill.App. 2 N.E.2d 286 petency we start the fundamental with court said: principle sanity testamentary ca “ very unwilling ear ‘courts lend pacity presumed. Smith, are 58 Black v. dead men to statements of what 109, 915; N.D. 224 N.W. Hedderich v. Am.Juris., Sec. said.’” 57 Wills Hedderich, ; 488, 18 N.D. 123 N.W. 276 Gerwien, Edwardson v. 171 N.D. testimony Nerison that Mrs. of Mrs. 101; Schmidt, N.W. Schmidt v. 47 Minn. intention to it to be her declared 598; Estate, Llewellyn’s N.W. In re of land to each of quarter deed a section ; Pa. 145 A. 66 A.L.R. 222 57 course, was, not in- her blood relatives Am.Juris., Wills, 91; Sec. 1 Underhill her knowl- consistent with the will or with Wills, the Law of Sec. 86. edge of the existence will. She that intention and out could have carried An exact rule or standard determin- had so desired with- testamentary capacity the land if she ing applicable deeded in all any way modifying the terms of the formulated, out cases cannot gener- well applicable have been The will would materially will. al statements that will assist property she owned at her evaluating to whatever testamentary evidence of ca- deeding pacity The idea of land out- death. or determining whether evidence right gifts during her was itself any probative lifetime has may value at all be stated. having Smith, supra rather inconsistent idea of Black v. N.D. [58 pass by will the lands either descent 920], N.W. this court said: have for a distribution. She capacity “The to execute a will has of making entertained the idea such deeds the, so often been defined being abil- rejected and then the idea and allowed the ity of the testator to know the extent pass provided lands to as she in the and character of his property, to be testimony According to the of will. objects mindful of the natural of his up Nerison testatrix had cleared bounty, appreciate and to the character 1947, yet debts the fall of she carried of engaged, the act in which he is lands, no to deed the out intention if such simple applied test as ele- an intention was ever entertained her. mentary and without the citation of testimony slightest This has not the bearing authority.” testamentary capacity of' Mrs. McIntyre at the time the will was executed. Page Wills, 1 Edition, In Lifetime Sec. 132, we find that: “Exposed to all the infirmities men- “The of testamentary capac- standard preceding in the tioned section and to ity finally agreed upon, has objection that it impossi- the further is substance, by great weight of au- cases, ble, in convict most the witness thority is as Testator follows: must testimony if his perjury willfully is strength have sufficient and clearness of false, testimony as to the oral state- memory, know, mind in general, persons ments deceased is therefore prompting, without the nature and ex- the weakest regarded as kind of evi- property tent of the of which he is subjected to dence and the closest dispose, about nature of the act C.J.S., scrutiny.” Evidence, 31 266. § perform, which he is about to and the See, also, Mockett, Cahill v. 143 Neb. identity persons names and who 730, N.W.2d 10 679. objects are to be the bounty, his of declarations his relation towards

“Evidence of a dece- them. He must though admitted have sufficientmind objec- memory dent without to un- tion, facts; is inconsiderable derstand all of these weight, and a

505 capacity bounty’ term form, objects of ‘natural as negative charge, wills, interpretation able is not is used lacking if testator is this, erroneous, therefore, facts, cases such is all of these know next collaterals capacity if he is unable where the of kin are since he lacks unprovided He for in any one them. and one or more are to understand appreciate pretermitted rela- in or- persons, able to also be must another, is der to establish instrument these factors to one that the tions of unnatural, affirmatively must the decision which show and to recollect peculiar superior or claims to they had has formed.” bounty; and, decedent’s if such work it And 133 of the same in Section adduced, claim is instrument can- stated that: not be held to be In re unnatural.” Estate, Cal.App. 367, Easton’s 35 140 actually “If remembers and testator 614, P.2d 619. is, who are his property knows what bounty, objects of his natural sisters, brothers, “Nephews, nieces, beneficiaries, and proposed who are the not, heirs, be- other collateral are them, he actu- his and if duties towards alone, relationship cause of such natur- ally of the act understands nature bounty.” objects re normal In al or capacity to performing, which he Estate, Cal.App.2d 78 Nolan’s established, least make will is P.2d an.insane delusion.” the absence of Page Phelps, But see v. 108 Conn. requirement statutory We have no A. 890. capacity than that make will other person eighteen must be a testator case, leading In In re McDevitt’s Es- 56-Ü201, years age or older. Section 101, 106, Supreme tate, 30 P. 95 Cal. NDRC 1943. Court California said: competent may dispose A testator course, juries against wills lean “Of regard as he wishes without unequal unjust. them seem or which to prospective to the desires of beneficiaries prop- dispose right to of one’s But the juries or long so views courts solemnly erty by will is most assured prohibited by terms will are not law, is a inci- most valuable public opposed policy. law re ownership, depend and does not dent Estate, Cal.App.2d Markham’s judicious benefici- upon its use. The 866; Estate, P.2d In re Benson’s 110 Mont. are entitled to of a will as much aries P.2d property own- protection as other argued It is will in this ers, and courts abdicate their functions (cid:127)case disposition makes an unnatural they permit prejudices of a when testator’s and is therefore of it upon merely a will sus- jury to set aside self incompetency. evidence of In this picion, because it not conform does n case the testatrix bestowed her estate just ideas to theirs what was preference husband niece in of a to her proper.” This is not an sisters. action so unnatural jury The trial court submitted to the as to warrant the inference she question: this incompetent make a testamentary dis position property. of her In this state the testatrix, “Was Ethol G. McIn- reciprocal duty support only arises mentally competent tyre, to make her relationship of husband and wife and the time when will at she executed the parent and child. ?” same “It is well heirs, jury settled that “No.” collateral To which The answered: sisters, such brothers are instructed the juiy: court any- questions pre- “Q. are say you, What did she if general “Two consideration, namely: Well, thing? A. your telling she was me sented testatrix, G. McIn- she wasn’t feeling good, Ethol to see (1) Was doctor, her will at and—

tyre, competent to make ? question executed time “Q. anything Was there question pro- will in (2) and Was normal as far as her conversation influence?” undue cured you? was concerned that she had with Oh, were further jury pretty A. at felt tough. times she The members first they consider She couldn’t should visit like instructed that she used to. the testatrix was whether and determine “Q. you, But didn’t she talked the time she competent make at her will she? A. Yes. from a they if so found executed it and preponderance of the evidence fair “Q. ab- anything And there wasn’t in- question of undue should determine with normal about her conversation jury followed assume that fluence. We you, there at time.” ? A. Not and, having an- the court’s instructions question concerning the com- swered the testify that Clearly Mrs. did not Orvedal negative, testatrix in the petency of the carry Mrs. was unable accordingly gave its verdict rendered intelligent conversation. was: undue question of consideration to the con- intelligent on an “And did carry influence. you with at the time ?” “In other versation words, she conversed back and forth with question confronting us at you things, right?” and discussed is that In proponent having moved for point, the question actually such situation the resolved the case at the close of verdict directed thereof, namely, portion itself into last judgment having moved for later you with “she conversed back and forth verdict, notwithstanding the whether things, is Mrs. right?” and discussed the verdict as is sufficient sustain evidence Thereupon Orvedal answered: “No.” attack of against the those motions. McIntyre said generally relates what Mrs. any- and further testified that wasn’t there “ * ** liberty the court is not thing abnormal about conversation or revise the action to review Orvedal Mrs. time. the verdict is without sub- jury, unless support in Kel- the evidence.” stantial testimony made Reference also Reichert, 74, 189 49 N.D. N.W. ler v. Hart, and it is testi- said that such 690, 692. mony shows that Mrs. “did not the will” that is know of involved in this summary of tes- of evidence on lack proceeding. As has shown above Mrs. capacity respondents tamentary specify Hart testified that some after Mrs. Mc- “inability carry (of McIntyre) Intyre hospital came home from the she met days intelligent for 2 conversation before McIntyre on the street in Mrs. Wolford and hospital.” specification This trip to McIntyre that Mrs. asked her to come to- Hjel- predicated upon the of testimony Mrs. and have lunch house with That her. that she with Mc- mer Orvedal visited Mrs. accepted she the invitation and there while days Intyre three before went two or she they had a conversation wherein Mrs. questions and in hospital answer to to provision McIntyre asked what Mrs. Hart gave propounded answers follows: she had made her son event John “Q. carry And did she an intelli- That Hart death. Mrs. told her what you the provision with time ? gent conversation made and Mc- she had Mrs. that * * * words, Intyre In other she conversed agreed right. that was As to you forth with and discussed further conversation had back and what was Mrs. right? things, A. No. Hart testified: say “Q. you to a will asked did Mrs. Hart And then what made. When was, McIntyre paper you about Mrs. of a her? done what kind A. ‘What McIntyre question yours Mrs. ?’ did not answer changed subject of conversation. “Q. say in re- she And what did McIntyre up Mrs. got Hart said that Mrs. speak sponse to She didn’t that? A. and asked (Mrs. Hart) if she would have ‘Well, said, for a she minute and then some more coffee and then went into the I Stor- up papers fixed with some John kitchen. show testimony This does me mon that I take care of think will McIntyre Mrs. knowledge had and recollec- get until I a will made.’ paper tion of the execution John testimony had Stormon This does drawn. "Q. And was that all was said capac- any not tend show lack of mental particular at that time sub- about that ity part McIntyre on the either at Mrs. ject? No, her what A. I-asked kind n ofa the time the will was made or at the time paper. place. the conversation took It would “Q. Oh, up yes. got And she A. strange be if McIntyre did care to Mrs. and asked if would have some me I personal discuss her intimate matters with say more didn’t much coffee. She Hart, Mrs. disposal and her of the matter it, about then she answering went by changing topic of conversation in .the kitchen.” showed mental alertness and tact rather incapacity. than mental McIntyre Mrs. had considerable ex- had perience respondents knew that a will wills. She Reference is made specifically pro- could be revoked. It was McIntyre letter written Mrs. to the Col- 1.4,1942, vided she made 1931that all May will lector of Internal Revenue on according former above; wills were revoked letter which has been summarized testimony McIntyre Mrs. Nerison’s Mrs. it is said that this tends to estab- letter olographic made an testamentary incapacity part will 1935because of lish on the trip By an ocean about McIntyre. July she was to take. Mrs. made will that will all of which died she The letter in 1941. written . sister, May seized would given McIntyre Mrs. 1942. Mrs. was dis- Nerison, changed charged hospital and thus the distribution from the returned provided part in the will of 1931. That home olo- her at Wolford in the latter graphic testimony July August, according part will the first September, Mrs. Nerison was later returned first to Mrs. made she McIntyre emergency trip by Duluth, which caused auto to Minnesota, passed. it to be made McIn- Henry had Mrs. attend funeral of her friend tyre Middaugh. testimony could time According knew that' she change Nerison, revoke or which she execut- Mrs. had Mrs. July 15, during ed on was effec- fall the winter retarded changed recovery. only tive until her mind she in- changed provisions jured that will as she such fall or the extent of unquestioned right injuries had an are to do. Accord- not further described. This testimony, ing however, to Mrs. Hart’s Collector of Internal Rev- letter fully obviously bearing aware of the fact enue threw prepared light capacity Stormon had had no the mental John paper July which would take when executed care of matters, in event of her death “until she made the will. The letter does not in- capacity lack will.” This statement dicate of mental made a shows that lack memory quite but knowledge the reverse. It a she had instrument that of is income, gross statement Stormon had drawn that she as- succinct John that that would from it came and allow- sumed instrument take care sources whence not tend of matters deductions. It does concerning distribution of able death, testamentary lack of manner to establish case until 508 866; 294, 10 Waller, 126 Conn. on v. McIntyre part Mrs. capacity on Jackson 763; Estate, Iowa Hayer’s 230 A.2d In re 15, July 1941. Estate, 431; 880, re Kaiser’s 299 N.W. evi- reviewed forth We have set 366; 295, In re Get 34 N.W.2d 150 Neb. evidence, with All length. dence 360; Estate, chell’s 295 295 N.W. Mich. by contestants produced exception, one Estate, In re Inda’s 146 Neb. 19 N.W.2d frag- capacity is testamentary the issue of 37; Hargrove’s Will, In re 206 N.C. exception one mentary and remote. 577; 244 Estate, In re Kesich’s S.E. Nerison, stated who Mrs. testimony of is the Hayer’s 374, 12 N.W.2d In re Wis. administered medication saw supra Estate, 880, 299 N.W. Iowa [230 was executed day the will 433], it was said: then Counsel it was. know what didn’t “ give seem medication “Did the asked: important fact controlling ‘The And McIntyre?” any relief to Mrs. in the case is the condition of testatrix This very drowsy.” was reply “She was: very at the time the will was executed. that Mrs. testified witness further impeach It is not sufficient to the valid- interest. had no read and could see ity merely of the instrument to show depressed. despondent and very was She hemorrhage that testatrix had cerebral hospi- at the with her glasses did She the front of the brain on examin- On cross They bifocals.

tal. side; right mentality that her pre- Nerison testified ation Mrs. impaired; some extent weakened at the drawn a will had been sumed that memory; that she had defective “Well, and said: hospital by Mr. Stormon unable, occasions, lawyer what other business know I don’t acquaintances recognize was as low a woman have with would friends; she manifested some McIn- not ask Mrs. did she was.” She quiet change dignity from the cul- next when the witness tyre the will about formerly observed, ture altered to an Then follows talked to her. personality and an inclination toward and answer: and, extent, facetiousness in- to some difference to the character of her thought “You * * * speech and conversation. competent take care perfectly “ any assist- without business her own ‘Mental due to disease weakness you ?” suggestions ance or from deprive testamentary does not one of capacity progressed has until it to the “No, think she did not sir. I power intelligent extent that the ac- sick a woman was too competent. She destroyed. forget- tion has Mere a will.” make body fulness and enfeeblement disqualify are not alone sufficient to one on the a will contested Where disqualifies making a will. The testa did not have the testator ground that deprives testamentary tion which one of proof inquiry and mentary capacity, the capacity very must exist at the time of be directed capacity should such the execution the instrument The crit the will was executed. when time mental determining testator’s inquiry in ical Corpus Juris, says: 68 C.J.P. his will is directed to capacity to execute infirmities, disabilities, “Physical signed very at the mind condition of incapac- of themselves do not previous afflictions or sub and evidence making individual from itate an testa- only so far as admissible sequent conduct disposition property, of his mentary mental condition light on his may throw person make a valid a sick moment precise that, at the illness, Edition, in his last or when he is Wills, even Lifetime Page on signed. condition, unless the surround- 416, 1112; dying ; In re Du pp. 233-234 C.J. are such as circumstances show that Cal.App.2d ing 140 P.2d Estate, pont’s

509 testamentary- testimony of “The the witness possessed not of he was in a testatrix ‘was not condition capacity.” * * * legal to make a will’ states a Wills, Page Life- (1 on Page In Wills conclusion, and, although admitted Edition, p. is 312) it said: time objection, without not be can consid- support verdict, ered in of since it not, suffering it- “Physical does of entirely is probative without value. self, incompetent. One render testator * * * testimony ‘such ob- whether consump- cancer, or who suffers from jected not, it ac- or or whether was disease, tion, kidney in- Bright’s or or companied by his in support reasons pain inces- fection, or who suffers from opinion, such totally would be without santly, very is or one who old ” * * probative value, *.’ nevertheless, weak, may, a valid make will. Dr. testified Johnson given was small morphine at or dose of illness, or at who-is in his last “One shortly is, midnight, shortly after after point death, may capacity 12 o’clock July A.M. on That this 15th. make a will.” given medicine nausea, was because of a re dye given action from the that had been Estate, Jernberg’s In its In re decision taking photo her incident to X-ray 458, 990, 991, 153 Minn. 190 the Su N.W. graphs gall bladder. That was a preme Court of Minnesota said: dose, small and when asked whether very “Deceased ill. was She would in manner affect her mental operation surgical submitted to a alertness at the time the will was executed day, injection of fluid into her veins. he answered: “There was no effect remain n physical signify But does weakness ing signed.” time the will Dr. (Schmidt incapacity. mental Sch- v. further testified McIn Mrs.1 Johnson midt, 451, 598), Minn. 50 nor 47 N.W. tyre did not consult with him with refer Little, age. (Little does old v. 83 Minn. ailment, any mental ence to and that did 408). That 86 N.W. disre- will part not observe mental ailment on the gards family unjust, ties or is unwise or McIntyre in dealings of Mrs. with her. is, reasons, for other as the such at the will was executed approve, court signify does does not McIntyre carried on a conversation with that it is invalid.” Dr. and Mr. Adams and that it was Johnson perfectly normal intelligent conver testimony All Dr. sation. Johnson’s statement Mrs. Nerison uncontradicted and the witness was not im that Mrs. “was too sick a woman peached. will” obviously conjecture make a question The will in probative conclusion and had force identified ‘ as testamentary subscribing evidence of lack capac witnesses and offered and re- ity Gibson, in evidence testatrix. Scott ceived trial of this v. 194 Ga. 22 also, S.E.2d appeal. 51. See re Feh case and record on this renkamp’s Estate, 488, 496, 154 Neb. will has examined with 48 Such care 421, 427; Speer Speer, every N.W.2d signa- v. member of this Iowa Court compared N.W. L.R.A.,N.S., 294, of the testatrix thereto 140 ture Am.St.Rep. Gibson, many instruments, supra signature Scott v. other Ga. 52], signed signed S.E.2d a will con some before and some [194 question test. A subsequent arose to the case execution will probative effect testimony of which are to be genuine a witness all conceded that at the time signatures was made the signature testa testatrix. The “ * * * trix ‘was not in a condition to attached to the will is the normal char- opinion make a will’ ”. In the signature in the case of Mrs. acteristic Supreme Georgia Court of disposing to such other instruments attached of that said: steady made in a firm and hand.

510 Wigmore, will. Auld to make a Ev.Sec. authority of argue Contestants difficulty the presenting 32 But the of to N.W. 461, 128 Cathro, 20 N.D. v. person jury of mind of a the condition 1913A, 90, that L.R.A.,N.S., 71, Ann.Cas. competency is is such on the whose assailed given capacity evidence the important, frequently be to the is it cannot done competent, is Nerison of Mrs. advantage permitting the best without consideration the proper for and was witness to the in terms capacity Mrs. state condition the determining jury in the this witness nec- conclusions. The must point out that They further McIntyre. essarily capacity state a conclusion of examination on cross testimony was elicited capacity expe- or lack of from his own no manner admissibility and its judgment rience and as to what consti- proponent. the by counsel for challenged capacity doing certain tutes acts. Cathro, supra, Auld In v. law has the The fact the defined iswho nonexpert witness capacity perform that a degree held the same court to to itself, will be allowed subscribing not, witness render the not acts should sanity of issue of express opinion altogether on the conclusion of witnesses the tes only witness has incompetent after the presented there is the testator where conversations, acts, case, conduct jury, tified to instant to in the sanity. After upon the issue of which bear the facts which the from conclusion synon necessarily sanity remains, nevertheless, is not It noting that is drawn. testamentary capacity to make ymous opinion to witness as the mental rule say that instance, would disposition, we For condition. there is much Cathro, supra, is gen testimony in in Auld v. record before to stated us Wills, Lifetime Edi Page effect that deceased slow eral one. Wills, ; Am.Juris., tion, Sec. recognize 784 57 his Sec. even most intimate friends; A.L.R. 281. 128; Annotation he at times seemed to he think that not have did sufficient Merrick, v. N.D. In Prescott property to for himself. care The nat- 693, this court N.W. said: ural inference be drawn such testimony would be that he com- did not incompe- “Upon an issue mental prehend property objects his will, tency make a contestants beneficence; from which it would witnesses who had observed the asked follow that not the had mental ca- whether condition deceased pacity questions make In a will. opinion in their he had sufficient not to, however, objected the legal defini- capacity make a to know mental capacity make a in- tion of will was disposition making he was of his inquiry corporated, and the limited thus property, and the beneficiaries. It ability compre- to the the deceased to inquiry held in this form does dispose hend his of it to to reversible error.” amount beneficiaries. In these circumstances arriving at that decision the court ob- opinion are of the we that it was not served : objections overrule the error to to the questions.” objection questions “The permit particularly were framed It be noted so as to the wit- is to from the above legal draw quotation legal capac- nesses conclusion definition of ity incorporated questions which must left to the jury under proper presents princi- instructions witness was thus the informed of the le- given ple gal meaning scope which has rise to capacity. some diffi- term application. culty principle in its In the situation now before us the conclu- appellants the witness were responsive for which sions of contend enough. It jury, question. They clear is f'or the entirely volun- witnesses, say tary nothing there is not for whether in the record to requisite capacity the deceased that the witness indicate informed as

511 scope meaning competent of the term legal to the to make contracts or trans capacity competency with reference to or act business. age Old of failure memory the execution of a will. do not of themselves necessa rily away take capacity a to testator’s upon, to The failure of the show record dispose of property. Perkins v. Per opinion this witness what of facts kins, 253, 116 Iowa 90 N.W. There comprehension based or the extent of her is nothing in this to bring case it with legal of the effect of the conclusion Wiltsey’s the case In Will, of re 135 only of volunteered is not the weakness 430, 776, ap Iowa 109 N.W. where it did The facts which she evidence. peared that relatives in attendance McIntyre’s relate with reference to testator at the time the will was exe justify physical the con condition do not took cuted advantage of his lack of expressed. The clusions which were testa capacity mental prac due to sickness to may drowsy trix have been sick tically disposition dictate him the to competent still to will. perfectly make a property. should make of his stronger In a for the contestants much case Duggan McBreen, 591, v. 78 Iowa somewhat evidence was held to be similar 547, 43 there N.W. was affirmative evi probative and insufficient to without force dence to show that testator was in con of the case warrant the submission to as persons fusion to objects Speer, 146 jury. quote Speer v. We which he would reasonably have 177, N.S., 6, 176, L.R.A., Iowa 123 N.W. attempt dispose mind to of his 268, Am.St.Rep. as follows: property. disposition Here the not complicated, and there is in nothing to “Only two of the witnesses saw him dicate that execution of the will day when the will executed. simply carrying not out aof present these (cid:127)Neither of witnesses plan previously definitely enter execution, attempt at the time of its tained, capacity so the only mental They speak physi of ed execution. his necessary to be exercised was of weakness, to recognize cal his failure determining whether or not he should them, apparent inability and his to con will in make a that form. We are satis or his verse as his condition affairs. the, fied that the evidence as admitted considering evidence which Without present court did not ¡was such a case as court, by the we excluded are un the submission justify jury to the anything record able find sub whether testator at stantially tending to show that testator time this instrument was executed was been in such not have condition incapable of making A valid will. will was in fact when the executed that n verdict setting probate aside the doing understand what he was he could would, think, (cid:127) will we have been without express purpose his deliberate proper support. Fothergill v. Fother disposition property. Mere gill, 129 Iowa 105 N.W. 377.” weakness, not to mental mental due dis ease, solely physical infirmity, It is clear that the facts related Mrs- constitute mental unsoundness. does not Nerison are such that justify do not O’Toole, 229, 117 v. 139 Iowa Hanrahan opinion the conclusion or as- witness hand, the other 675. On is well N.W. of fact a-matter as well a matter of law. bemay testamentary that there settled 'by The conclusions volunteered her were insanity without incapacity actual justified. They probative value Scott, Manatt unsoundness mind. v. unsupported Such whatever. conclusions- 76 N.W. 68 Am.St. nonexpert Iowa evidentiary add no support 293; Hubbard, Rep. Garretson v. jury’s ato verdict. fact that the con- ‘ But‘mere 81 N.W. 174. weak Iowa expressed clusions course power of mental render ness objection cross examination without or a incapable person executing a will. proba- motion strike nothing adds to the necessary that he It is not should be tive force of statements.

.512 respect re lengthy With the testimony After this somewhat the Nerison general the facts and we have rule discussion of discussed the view expressions but as opinion law, no other conclusion we can reach on the nonexpert substantial evidence witnesses to mental con was no there however, rule, jury that Ethol dition testator. That support finding competent apply does not mentally attesting witnesses not to was G. Brownlie, 117, it. will. executed Brownlie time she v. 357 Ill. will at the to make her 268, 1041, 191 N.E. 93 A.L.R. and annota upon error specified appellant The 1049; Estate, tion In re 176 Minn. Olson’s testimony of the sub- cerfain rejection of 360, 223 N.W. 677. error This witness, Dr. scribing Johnson. least, subsequent by cured,' at in was Wills, 2 Page In on Edi Lifetime reargu- on pressed testimony and was tion, 778, 522, p. Sec. it is said: necessity new for a of the In view ment. by “It is settled unanimous almost being one point trial, as discuss we weight of subscribing authority that the the case. retrial of upon a to arise likely may give opin- witnesses to a will their testify that to permitted was This witness sanity insanity ion as to of the subscribing witness a acted as he any testator without to their reference presence his McIntyre, in will; determining means of his mental ca- of the other subscrib- presence pacity, ability or their judge of his Adams, signed exe- witness, Mr. ing capacity with the means their dis- said the instrument will; cuted posal.” requested Dr. her will and was Johnson witnesses; subscribing to act Adams Mr. See, also, Wills, etc., 1 Schouler on 6th McIntyre was days later Mrs. and that two Ed., 232, p. 280; Wigmore Sec. 1 on Evi- doctor; that she first -operated on dence, Ed., 609, 2d 689; Sec. C.J. to her ailment on regard him with (cid:127)consulted 507; C.J.S., Evidence, Chamberlayne, § 13, days the execution July before two pp. The Modern Law of 2596- Evidence, sought to show appellant then The will. 1925, Sections 1927. proof offer of in by questions McIntyre, at opinion of the doctor Mrs. attending Had Dr. not been the Johnson executed, inwas all will was the time physician McIntyre, of Mrs. he could competent, full control of respects in expressed opinion respect his with laboring faculties, under mental competency at the time sub- mental influence, any way in unable or was undue presence. in scribed to the will his The comprehend the act that the nature of is: neat therefore Does the fact n performing. Objec- engaged in phy- that he at that time her attending proffered and this tes- sustained tions incompetent him testify sician render re- the'part of the doctor timony on pro- to her condition because of mental court, except as to evi- jected by the trial 31-0106, visions of Section NDRC 1943? rejection of undue influence. dence The trial court felt that it did sustained evidence was error. objection on that ground. contestants’ objections their based The contestants precise question passed This 1943, which, 31-0106, NDRC Section Supreme upon by Court California part, provides: a statute similar in under context and iden surgeon, withput physician meaning with It “A tical ours. was held patient, cannot be making exam- his attending physician testator consent acquired any information subscribing ined as witness his will waived the patient provided which was attending privilege neces- statute invited prescribe sary him to proper enable or act a full and examination of the wit * * patient; respect for the ness to matters and facts relation- have been The contestants assert that the lips would otherwise which his ship under attorney reached and client existed between same result was .sealed. Nier, 91 Wash. Mr. Stormon and Mrs. v. similar statutes Points Weis, being he 76 Ohio time the will was drawn and that v. 157 P. and Weis Wigmore beneficiary the sole the will which under App. 65 N.E.2d prepared, Ed., presumption arises that the Evidence, said: 3d Sec. execution the will was the result of attest request physician to “To proponent. undue influence exercised request implication to one’s will is by hand, proponent argues On the other on, testimony if bear called him to relationship attorney client validity affecting facts did not then exist and event is therefore a waiver.” by the terms of the will were determined upon entirely her own voli- where conclusion that We have reached the tion, by proponent. uninfluenced the requested by the physician is attending an will and in accord- testator to witness his determining sufficiency In the the request subscribe to ance with that does plaintiff’s the evidence under motion for thereby witness, the testator as a will judgment verdict, the the notwithstanding competency the restrictions on the waives light evidence must be considered in prescribed by physician as a witness most favorable to the In re contestants. 1943 and such Section 31-0106 NDRC Estate, Fehrenkamp’s 154 Neb. validity physician involving an action Although jury N.W.2d 421. has as a witness and of the will be called actually passed upon the issue of undue examined and cross-examined same approach influence we must now it under See, also, subscribing other witness. proponent’s challenge motion Estate, Bottger’s 14 Wash.2d In re though jury had determined that issue 518; 129 P.2d Underhill on the Law adversely validity of the will. Wills, Sec. 208. evidence, already We have set forth the point to this we have deter Up testimony including the of Mr. Stormon. on the issue of in mined that the evidence upon further, Without it it clear dwelling capacity is to sustain the ver insufficient us that the evidence is insufficient to jury trial dict of the and that the court support by a determination a jury that at erroneously testimony restricted the the time the will was executed relation- witness, respect Johnson, Dr. with to the ship attorney and client did exist between capacity mental of the testatrix at the time proponent and the testatrix. the will was executed. The next issue is influence, point undue the exact suspicion A court will look with whether being the evidence sufficient to substantial, bequest attorney a to an jury, that issue to the in which take event will subject who drafted the and should trial, there must be a new or whether the scrutiny. the transaction to close Page In appellant’s judgment motion for notwith Edition, Wills, Lifetime Sec. it is standing granted. the verdict be Un should stated: der the instructions the trial court the attorney “If an draws a will under jury never reached of undue benefit, he takes a substantial a stands, influence. As the now if the record presumption of influence undue arises.” supported evidence is sufficient to have a ground verdict for contestants on the Am.Juris., Law, Attorneys 5In Sec. will that the was executed under undue in we find that: fluence, a new trial must had. If the ' insufficient, lawyer, drawing “if evidence on that issue is bequest, judgment appellant is entitled notwith drafts himself a he must ex- plain standing the the circumstances and show verdict. made; willingly freely testatrix. gift Defendant insists must, words, that he proof show there is advantage in other ob- opportunity tained embrace the him fact did not reason of the tes- over the undue influence will was a fair exerting the result of equitable himself tator.” contract between and the decedent whereby agreed Edition, Evidence, Sec. 3d Wigmore on will him of her property in return said: it is agreement for an by him to see she should not during her lifetime be benefi- other grantee “Where Conceding this, want. merely person who is a ciary of a or will deed purpose argument, suffice intimate relations has maintained say that the evidence adduced testator, drafted or has grantor or that, instrument, contestant shows in mind having the terms of or advised health, the condition of Mrs. Witt’s Mr. or of influence presumption undue (cid:127) gain Lantz stood to more the con- beneficiary has on the fraud tract than prima Mrs. Witt. The facie possi- applied. it is not But often been showing of particular contestant in this say any single circumstance ble to was, therefore, show sufficient to mark invariable group of facts is the advantage by by attorney obtained the there is presumption, such a virtue of his relationship. confidential application capable of rule uniform case.” apart the facts of each from “Moreover, the will drafted and was Lantz, drawn in the office of Mr. case, Witt’s re In leading In a California signed by was employees two of his as 202, 197, Estate, 407, heir an Cal. 245 P. 198 witnesses. Mr. Lantz testified that attorney who by an challenged a will drawn prepared by was principally office beneficiary grounds the was sole the himself. Also one subscribing said: influence. The court fraud and undue witnesses testified that Mr. Lantz was proof to establish “The burden of the room and talked to Mrs. Witt in elements fraud undue- about the will signed before she Ait. not, case, presumption in the instant fluence was of undue influence arises contestant, upon proof is usual the the of the existence of a con- upon of will. situation. the contest fidential relation between the testatrix defendant, by upon The the beneficiary, the ‘coupled burden with ac- attorney relationship tivity of his reason of the latter in the ” Witt, presump preparation overcome of the will.’ est tion can be overcome lation only closely scrutinized, ^[*] ings protection constructive influence to which the .confidential tion sumptively invalid, automatically ^[*] between ^[*] naturally gives rise. All deal fraud benefit of the most fraud, a client an satisfactory raised attorney unfair and such on the against only by former are dealing but are by ground of presump his client evidence. law as a strong clear pre re court Estate, defendant had not sustained the burden of jury was warranted in determining that the proof overcome the the court reached the a will In the an After a further “The record attorney says: that rested 201 of his subsequent Cal. is the presumption. client, presents 185, upon review of the evidence sole case of In re Butts’ 256 P. drawn conclusion that beneficiary him and had not a case wherein by 200, 201, himself. under presents advantage “The fact was ob- It case where there is a con- by by presumption between the attorney is evidenced flict that the tained raises, growing the will the terms of itself wherein law out of such rela- bequeathed tionship, testimony and the all of of witnesses

515 actively question attorney “An who draws or by proponent. offered participates disputable in the his client’s making of as to whether or benefits, by substantially by evi- which he presumption was overcome has the him estab- burden cast by proponent dence introduced lishing of un- that it was' not the result by jury.” one to determined be due influence.” 434, 91 Appeal, Conn. Leger’s In 34 St. Will, In the case of In 735, rela- re Putnam’s when the it is held that Am.Dec. 112, that, Misc. N.Y.S. it was held between attorney and client subsists tion of attorney where the testatrix’s legatee testator draftsman her will and a substantial latter, influence will drawn undue thereunder, beneficiary presumption is one of presumed whether in procured the will was undue by proper evi- may be rebutted fact which fluence jury. was for the jury. dence that satisfies the Vivian, Tarr v. 272 Mass. Ill. Buerger, 287 In Wunderlich v. N.E. the contestant a sister 827, 829, attorney the testator’s N.E. sole heir at of the deceased testa- law residuary prepared will was made who framing tor. She filed a motion for the benefit. court legatee his substantial two issues jury. for trial The motion said: was denied. The first issue was that of fiduciary relation existence of “The unsoundness of mind. It was held that legatee does testator and a between a submitting this issue was not ground ,of in- presumption undue not raise expected sustained the statement of a will in the case of fluence proof submitted on the second motion. The * * * presump- The a deed. of case issue was that of undue the influence on only the out of in this case arises tion part beneficiary of the chief who drafted pre- in error fact the defendant present the will at its execution. pared by which he benefited. In the reversing ordering decree and a trial presumption strength The of the by jury on the issue undue of influence the required proof to over- of the amount court said: depend upon the circum- come it must years, person “When a of advanced stances of each case.” children, having kindred near but no circuit appellate attorney court held that the through The an at law with whom justified personally impor- under the evidence court was he is intimate and has presumption of undue holding legal that the relations tant and confidential business kinsman, in admit- been overcome and an influence had but who is not a executes probate. independ- ting the will to instrument a will without advice, whereby a ent and disinterested Jersey we cases involv- In New find two given fraction is small of his estate In facts under discussion. ing general the charity next kin and to the his of .and Will, Cooper’s N.J.Eq. 75 of In re the case attorney residue of to the at law and 676, 177, pre- a will and codicil were A. 71 family, law his the views the transac- attorney appointed by who was pared an jealousy. Slight with tion considerable executor, specific legacy and received indicating circumstances sus- additional substantially residuary legatee. benefited ceptibility part to influence on the of legacy. received a The at- also His son testator, alleged or dominating the super- procured the witnesses and torney power attorney, on the the the execution of will. It was held vised support finding of in- would undue attorney pre- must overcome the attorney The of fluence. relation by sumption undue influence raised these highly client is in event confidential by he benefit before could will. facts fiduciary, dealings and business be- Will, Bishop’s N.J.Eq. 595, discouraged by re 125 In tween them are 384, 385, policy it was held: of the law.” A. pri- prima facie Such ref- case so made. with is silent court Massachusetts The strength- ma in this facie case action presumption of a the existence erence to opposed ened other It is evidence. influence. undue Being appellant. the denials of 403, Estate, 240 N.W. Daly’s 59 S.D. In re party, testimony is an interested attorney 342, drawn a will involved not binding in deter- the court bequeathed five-sixths about mining facts.” trust, with attorney’s son estate court made The attorney as trustee. dealing there is a line of cases Iowa al- held that presumption but ato reference validity with for their drawn wills conflict- somewhat evidence was though the by attorneys clients are also substan who the inference sustain sufficient to ing it was say tial beneficiaries. These cases do not undue trial court fact made presumption arises from rela attorney was part influence on the tionship parties and conduct executed. operative when will was they hold that the facts circumstances require are such as to the submission of 120, Estate, Keeley’s 167 Minn. In re ju of undue influence to 535, 536, these basic discloses 208 N.W. ry. Ankeny’s The latest case is In re Es age at The testator died facts: tate, 238 Iowa N.W .2d $58,000. an estate seventy-six, leaving previous which the It cases are cited. made December On particular interest to us because litigation which involved in will facts similar are to those before us his brother who handwriting issue. There was no evidence that was named execu- lawyer. The brother testator was of unsound mind. He was says: court tor. eighty-five years age the time the a confidential “The mere fact years was made and lived more. two existed, op- fiduciary relation He was a widower living in a house on a influence, does portunity to exercise farm that he had owned for a number of Here influence. undue not establish years. $31,- appraised The estate was situation, as well as have such a we Bequests amounting were made beneficiary activity part of the on the $19,000. about left residue its execution drawing the attorney drew who The con the will. jinder no such circumstances testant was the sister testator’s who lived beneficiary person knew living but three,, on a farm about from him. miles knew the contents whether testator There were other relatives. There was no will.” of the that he unfriendly evidence was on terms with his relatives. After the will ex finding of undue court made a The trial ecuted, it was taken in charge the at decision the affirming In influence. torney placed lock box. There appellate court said: was no evidence that the testator ever saw the will after its execution. The trial involved, law, here “Such facts as eleven, court found that item being the command, finding a permit, but do not clause, residuary by the executed tes They pri- make a of undue influence. tator under undue influence but rest trier which the of fact ma facie case judgment ap the will was not. The accept reject. Such facts call may pealed probate from denied to item eleven explanation ques- but still remain for pro and admitted the rest of the will to fact, preponder- whether tions Upon appeal, chiefly bate. the court was propo- with the proof is ance of question concerned with the of whether or explanation if even nent proof support not there sufficient to explain Failure to satisfac- made. is jury. of the case may additional the submission to a It torily be an fact of the conclusion that weight. evi- reached there was or less Defendant’s more judgment. destroy affirmed be sufficient dence two during court com- decision the the interval of reaching its years Graham v. is that the quotes strong from evidence ments expressed N.W. desire Iowa testator’s own Courtright, 180 another, rather than the influence follows: large cites a number of authori- held that “In the Graham case we n ties. We think in- this circumstance attorney drawing a will an little, very dicates one but it was relation to acts in a confidential might be considered testator, be- specially called being court which take con- would also into friendship long testator’s cause sideration that the in actual will was long him. It there held that as possession lawyer and benefi- from a as the inferences be drawn ciary under the will.” equipoise, of facts are in given state question undue influence validity Few challenges jury. case does not hold wills ground on the of undue influence arises, presumption necessarily a have reached this court. We have never rela- existence a confidential ‘the considered presumption whether a of un tion, guardian and such as that of due influence arises the fact that an ward, client, attorney religious attorney draws will under which he like, layman, af- adviser and takes a substantial We benefit. have no opportunities peculiar fords for undu- statutory presumption applicable to this mind, ly exercising influence over the situation. Our study careful of the cases party, in and where the dominant such dealing texts with this leads relation, preparation initiates the us to the conclusion that we should gives the will or as to its directions judicial precedent establish a rule that a contents the scrivener or writes it presumption invariably of undue influence words, himself, in other is active ei- arises from the fact that a iswill drawn execution, preparation in its ther client an attorney who becomes thereunder, beneficiary and is made a major beneficiary under the will. The suspicion arises that the benefaction conditions under which such wills might may have resulted from the exertion conceivably be drawn could differ great so testator, of undue influence over the ly presumption that such a in one case rather than from his free volition. would justice serve the ends of but in an suspicion strength neces- other would impelling force in the sarily depends circumstances of injustice. creation ” particular each case.’ Coffin, In Coffin v. 23 N.Y. 80 Am. The court further remarks: Dec. it is said: “Ordinarily, attorney a situa- observed, no I have there “As is this, knowing that he was tion such prevents person rule law a of which beneficiary large of a of the de- prepares a will from taking who property, would have taken cedent’s legacy In language under it. the steps least secure the taking Parke, Barry, in Butlin v. 1 Baron an- and the consultation advice with 637, truly that Curt.Ecc. can right, attorney. The /all other court had is, person, said that if a whether an circumstances, these to feel that under attorney not, prepare or a will with a least there was at some indication himself, legacy to is at most it a sus- gain for had overcome that desire not picious circumstance of more or less only attorney’s ideas, ethical the according the weight, facts of each prudence.” his sense of case; some, particular weight of no again says: the court And all, vary- suggested, as in the case circumstances; “Proponent argues according to ing that the fact that quantum instance, sought the of the change legacy, never testator 518 proper- nesses afford the under circumstances proportion

the it bears testimony indication is of, other ty disposed and numerous ” product of mistake or inadvertence contingencies.’ wholly proved when the irrecon fact so is in con exists Whether undue influence oth presumption. cilable with On the a will nection execution hand, Co., 31 Taylor er Hill v. B. J. credibility testimo of witnesses whose 373, 258, Cal.2d 189 it was held P.2d validity of the execu ny bears trial court was not bound testi questions the trier primarily are tion mony against of interested witnesses as v. facts, jury. Keller in this case the inferences which were deductible 690; 74, Hult Reichert, 49 N.D. 189 N.W. contrary other facts case thereto. 761, 193 N.W. Hultberg, N.D. berg v. 49 163, Morrissey, Cal.App. 6 In Keating v. . 605 677, 679, succinctly it 91 P. is stated that: testimony argued It is that the John “A not jury court or is bound be- surround- as to the circumstances Stormon against lieve an interested witness as preparation ing the details presumption, if the latter satisfies undisput- hospital by him is at the its mind.” presumption in- negatives ed Cal.App. Hewlett, And in 102 McDonald v. un- the will was the result of ference that 1281, 680, 83, 88, 228 24 A.L.R.2d 2d P.2d influence, is despite the fact due stated: it is -party plaintiff party interested validity sustaining the of the will under “Obviously, the trial court where beneficiary. sole In Am. which he is 20 reasonably does believe the rebut- not Evidence, 1180, Jur., Section it is said: testimony is ting presümption un- impaired.” cases as illus- “Many be cited Wright, Pierce same effect are v. To principle trating the testimo- Cal.App.2d 718, 256 P.2d witness, though ny interested of an Fargo v. Bank and Union Freer Wells uncontradicted, is for the triers of Co., Cal.App.2d P.2d Trust facts, jury, whether court who are Washington we In find two cases 491. cases, In bound other not thereby. jury might held where was disre however, it is held triers gard the of an interested witness evidence facts, jury, whether are court or contrary presumption. give effect to a justified disregarding the uncontra- Company They are Finance v. Ham State testimony of an interested wit- dicted acher, 17 P.2d and Bar 171 Wash. ness.” Empire Telephone v. Island and Tele ach testimony See annotation “Uncontradicted Co., Wash. 275 P. 713. graph witnesses,” 8 A.L.R. of interested general support proposi judge trier facts divergence facts tion that the great A in va credibility given rise witness applica has rious cases accept the required uncontradicted evi facts tion of different rules. Under the case, however, party interested of an uncorroborated we have no doubt dence in this Ratley Commission, v. Industrial apply cite proper general it the rule we is 997; 347, Employ Texas credibility plaintiff’s 74 Ariz. 248 P.2d the of the testi Lee, Tex.Civ.App., Insurance Ass’n jury determine, ers’ mony although is the for v. 902; Dolan, Berard v. 118 is, 254 S.W.2d and under the circumstances could there 581; 116, Nunes, A.2d 100 Gammill v. be, In Vt. no direct contradiction. Mar Shee 86; 185, 1, Cal.App.2d 231 re 104 P.2d In Maryland Corp., Assurance 190 Cal. v. Estate, 407, 198 Cal. 245 P. 269, by plaintiff, 197. cited it is held that Witt’s P. 210 Cornwell, 226, v. Piwowarski 273 N.Y. presumption In disputable weight has no 112, 111, N.E.2d it is said proved by fact the 7 of uncontra- interested against party testimony witnesses: of a or of his wit- dicted

519 credibility, undue though through their obtained the exercise of “Their even uncontradicted, Kohler, 247, influence. testimony when con- 71 N.D. be v. Janssen impossible truth- and its 299 N.W. 900. tradiction is open accuracy fulness rea- (cid:127) doubt, proof of exclusively burden sonable proponent the to establish execution jury.” the the of prescribed by the will manner in the appears that the it Dakota South our 56-0302, statute. Section NDRC accept are not the state- courts bound to by 1943. This burden was met the testi have an interest ments of witnesses who mony subscribing of the witnesses. The Jorgensen v. question at issue.' challenge validity contestants the of the 632; 239, S.D. 51 N.W.2d Jorgensen, 74 upon ground the of undue influence. Morris, Crilly 70 S.D. 19 N.W.2d v. Theirs was the burden sustain this Estate, Tjarks’ 55 S.D. 836. In re challenge, they attempted which to do this statement: 227 contains N.W. showing that the will under which the proponent beneficiary, was the sole person only who could “Where the testatrix, exclusion of sisters dead, directly dispute a witness proponent, drawn attorney an testimony that witness should be who over period various times scrutinized, prob clearly reasonable its years legal advised the testatrix on mat considered, ability carefully be should ters who was the husband and, purpose, attention should niece; testatrix’s that the terms of the given be to the circumstances sur will were not disclosed until after any rounding transaction which the testatrix, death pro of the when it was narrate, may his testimony witness proponent, duced posés in whose compared all with inferences derivable sion it had from remained the time of its the established facts. from Re execution. These facts and circumstances App.Div. 909, Bailey, 98 N.Y.S. proponent cast the burden of accept testimony ap To going forward with the evidence over conclusive, pellants’ witnesses as we come the inference of undue influence to obliged to find would the testi they gave which rise. improbable, mony was not that none proven of the circumstances of fact proponent, On behalf evi to discredit tend or raise substantial produced tending dence was to show testa verity doubts as to same. In trix, although sixty-four years age may short, we consider that testi suffering from an illness required mony by appellants di offered is not operation recovered, from which she later rectly or denied contradicted competent mentally to make a testa respondent, yet we witness mentary disposition of her property and would to consider whether there years lived seven after making the will any permissible deductions, by way are it, without changing during which she inference, be drawn managed own business affairs with of the evidence to raise a proponent considerable success. The testi ap as to the truth of substantial doubt fied testatrix dictated the terms of pellants’ Quoted ap showing.” with towill him. read She it and was proval Hill, in Hills v. S.D. left with her for twenty some minutes N.W. 769. while he summoned subscribing wit credibility ness, hand, uncontradicted Adams. other On the testimony plain- presence uncorroborated not discussed trier subscribing execution, tiff is for the of facts determine witnesses. Its while light conformity statute, of other facts and circum- was rather support perfunctory. which tend infer- Under pre stances record thus jury execution of the permitted that was sented the be ence should to con- 520 any objection circumstances valid under The basis facts and sider all of the provision relationship of undue influence this must be the

bearing upon the issue presumption, attorney The show- weighted by client. burden of being without always relationship is existed is on ing of which that such effect the nature and McWilliams, explain objector. Booren 26 court to v. difficult for undue, 1916A, influence 145 question N.W. Ann.Cas. jury. The N.D. 388; to determine. fact Iowa clearly Kendall, triers of Stoddard for the v. say matter lawof as a cannot This court N.W. by jury that determination “The privileged character of will under undue executed executrix appear; communication the mere must The trial be sustained. not influence could person fact that the wit- offered as a ap- determining err not court did ness an law not attorney at does judgment notwith- pellant’s motion improper render it relate for him to be should denied. standing verdict statements or communications made another; by himto nor is the fact that specification of error re Another person sought statements are whose witness, The comment. quires further our proven par- to be was the client of a Kehoe, judge, a district testified Hon. J. J. lawyer ticular at the the com- prac he was a or 1938 when made, munication it- was sufficient his came to office lawyer testatrix ticing testimony self to exclude the conversation with hour in spent an about concerning latter it.” Thornton on consulted him That she never him. Law, Attorneys at Sec. 96. time; years attorney that about six any question he had prior conversation to the relationship attorney against claimant the estate represented a upon client rests con contract. The paid husband. never She deceased express may tract be either or it attorney fees. She asked witness implied parties. from the conduct of the did some information. He witness 10; Zitek, Moe v. N.D. 27 N.W.2d It legal advice. was consider Attorneys Law, Thornton Sec. 134. necessarily would be information which sustained, objection After contestants’ lawyer’s Anybody office. sought only in a proponent proof: this offer made might know what he told her. It attorney concerning a matter which petitioner prove by “the offers to qualified to answer. It was especially Kehoe, the witness J. J. a matter statute and witness' covered already occasion to which he has re- acquainted pre It was it. testimony, ferred in his Mc- up liminary question might lead Intyre told him that she intended to question further. did not something leave her to the Stormon interpretation of relate to the statutes. It family.” disposition prop matter of was not a erroneously This evidence was excluded. variety erty. They discussed a of non- appear It does not that at the time of the objection matters. An business communication in the relation- testimony of the witness his regarding ship attorney and client existed be- conversation with ithe testatrix on that tween the witness and the testatrix or ground was sustained. The occasion that the communication was made in the objection paragraph 1 of Section professional employment. course of 31-0106, provides: N.D.R.C attorney, “An without the consent The verdict cannot stand because it is client, cannot be examined as to on a finding incompetency based that is made communication client not sustained the evidence af- and is him, as to his advice given nor errors in the fected exclusion of evi- professional the course of heretofore thereon in dence discussed. On the other * * employment; hand, for reasons that we have stated n procured undue in- in- of undue will was issue reference to the fluence, find that you fluence, is not entitled to should proponent question the will of Ethol in notwithstanding the verdict. will judgment you .find, do therefore, McIntyre, if so decision, judg- is that G. Our preponderance of the evi- reversed and from a fair appealed a new ment from is dence, then and there that she was on all the issues. granted trial will, you also, competent to make will general verdict signing in addition to

BURKE, J., concurs. effect, special ques- sign to that question you tions on the submitted to sup- competency.” (Italics of her (concurring). JOHNSON, Judge plied.) this in case have The facts Under the instructions as above set in set detail and the forth and discussed entirely it possible forth jury applicable fully issues has been law in its deliberations rendered its verdict completely agree I with the stated. without considering ever whether the will opinion syllabus main and the thereof. question in was executed under in- undue present jury There are circumstances The fluence. court told give jury evidence in this case rise to could do so. It also told the that if presumption in- incompetent inference or of undue to make jury appraise It will fluence. is for the and a “in to signing general addition determine jury whether on basis of these verdict to that effect” should sign pre- special question circumstances and evidence submitted as to her sented competency. undue influence entered into the execution of the of Ethol McIn- will G. jury its rendering verdict an-

tyre. special swered question, “Was the tes- McIntyre mentally tatrix Ethol G. compe- The trial court submitted case to tent to make a will at the time when she the jury theory on the that there were two executed the same? A. No.” Then fol- general questions presented for its con- “We, general jury, lowed a verdict: sideration. The said: court duly empanelled try and sworn to the above questions action, general present- “Two are entitled find that in do your consideration, question ed for namely: in evidence is not the offered testatrix, (1) Was the McIntyre, Ethol Mc- will of Ethol G. G. deceased.” Intyre, competent to make her will at special this case in is author- finding question the time the will in was exe- ized our statute Section 28-1502 of. cuted? (2) Was the will Supp. to the North Dakota Revised question procured undue influence ?” says: Code of 1943. This statute consider “You should first and de- “and the jury shall make their an- question termine the of whether testa- questions swers thereto [referring to trix Ethol competent G. writing. The court submitted] to make her time she exe- jury, also direct if render a cuted the same.” verdict, general to find writing any particular fact, question of to be stated you prepon- “If believe from fair * * * spec- as aforesaid. When the derance of the evidence that testa- findings ial are fact inconsistent trix Ethol McIntyre, at the G. time of verdict, general with the the former making her which has been re- controls the latter and the court must evidence, ceived in did not have testa- give judgment accordingly.” go mentary capacity, you need then your general no deliberations to an- verdict the case at bar further swer the second as to whether inconsistent with way the answer 522 special finding at tion of undue an question or influence arises where special to the finding torney a question or takes substantial under special benefit a

of fact. The by client; Mc- under Ethol G. will drawn him for a that the testatrix fact that stated competent mentally up ex such circumstances it is Intyre to him not plain freely and gift the time she executed show that the a at the make will ascertained, voluntarily given em be that he not same, that can did and for in by jury opportunity the exerting rendered brace the undue the'general verdict fluence; the overcoming that question was the burden of that the will in to the effect pos presumption Ethol could of undue influence G. not the will by as a by dealing the sible unfair raised law considerations the same involve the question. protection possible special against client the to the a as the answer jury by strong may an It, therefore, appears entirely is influence that be exerted that it relationship attorney in confidential jury did reach the the possible the never that be existing him and his can presented this case. It is between client second issue only by overcome and most impossible the clearest court to determine satisfactory evidence; disputable that by the the verdict rendered the general at did, not, presumption by undue or consider influence an jury it did whether torney a client presented of undue who-has drawn will for a the second in- issue is beneficiary in which he a substantial jury assume that the fluence. We must pre- that in not, one must be overcome evidence of the instructions did in view sented, proponent him as the will question troduced of undue in- consider question by the and is to be determined a fluence. jury; presump that strength of such that many held times This court has required tion and amount of evidence judgment notwithstanding verdict dependent upon it overcome must be granted moving should not be unless case; circumstances of that where each party judgment merits entitled here, facts, they per such as are involved City of as a matter of law. Westerso v. a finding mit but do command of undue not Williston, 42 N.D. N.W.2d influence, prima at least make a judgment A motion for cases cited. therein jury jury which facie case for the the verdict be notwithstanding accept reject; either or some of there is issue for granted where suspicion indicate that inference cases jury pass upon under the evidence as requires undue influence under the evi- go weight does facts and circumstances the case the Scherling, dence. v. N.D. Nelson presented question jury. page In passing 804. 300 N.W. con- presumption such matter evidence is There was an inference or light present most favorable to sidered in the the of undue influence in the case at party against jury the motion is made. and the whom bar instructed on the basis undue ex Brazerol v. Cab Com- issue of influence was State rel. Yellow 733, 736, pany, 245 N.W. of fact for their determination. N.D. grants judg- -court If this motion for which an at- circumstances under verdict, notwithstanding the ment such de- torney will for a client draws a as a termination would matter of law be beneficiary and retains he is the sole pos-, there was inference a declaration necessarily raises session of involved, presumption of 'undue influence influence. The authorities issue of undue event, it would amount to a dec- or in support opinion amply main cited there was an laration if inference or the determination proposition influence, presumption of undue that it was influence is for was undue there whether presented by the evidence overcome facts. triers ques- proponent the will. is also a fact one that be deter- main tion of should cited in the and authorities The cases by jury. why It is the basic mined reason presump rule that a support opinion appear that new or notwithstanding it should at a new trial judgment the motion for pres- additional evidence is available granted. be the verdict should not upon question. jury entation to a be as might No matter our views what stated, as well as in- reasons here For the undue the evidence of of the weight opinion, the forth the main fluence, upon that those set jury pass it is for the notwithstanding judgment the motion for question. properly verdict was denied. ques- upon pass It is for jury fact, tions of since the determination SATHRE, Judge (dissenting). is a whether there undue influence question fact, whether an inference or or agreed prop- will We are all by evi- presumption thereof overcome erly legal executed due and form and dence, fact, court is this question also a testamentary capacity that the testatrix had case, instance, jury in a initial will., majority opinion execute The pass question. upon upon concludes however that the record presented question of is undue influence granted If a new trial this case is question of fact and should be submitted newly no other or evi- evidence discovered jury. agree The is writer unable bearing dence is the mental presented on with this conclusion. capacity McIntyre, ap- of Ethol it would G. opinion amply pear main would upon issue undue is based influence support the of testa- theory that issue will, proponent the fact that the of the mentary competency de- capacity or lawyer, drew the will that he is determined, ceased to make a will-has been terms, beneficiary under the of the will. It only that the in this remaining issue undisputed proponent is that the who was in- case whether not there undue beneficiary drew the will. His testi- fluence in the execution exerted mony is that was called the testatrix of the deceased. will; will; draw her that he drew the typed typewriter it on that he accord- liberty This court has held that it is not at ance terms dictated the testa- jury review or revise action of the any trix without suggestions from him. unlesb the verdict is without substantial thereupon He left the -will with the testa- Reichert, support in the evidence. Keller v. trix twenty about minutes while he went 49 N.D. 189 N.W. Neither should out procured the attendance of a doc- court, fact, jury question on a in a lawyer tor and a attesting as case, witnesses. substitute determination such its Both of them signed testified that A jury. of fact for that of the request will as witnesses at the ot judgment notwithstanding motion for ver presence presence testatrix in her dict will not sustained where is an there of each other and that she declared to Grondahl, them issue for the Nelson jury. v. it was her last will and 299; testament. N.D. N.W. Olstad v. Stock So far writer has been able to dis- Corporation, 66 N.D. growers Credit reading transcript cover from there is 266 N.W. 109. Likewise a motion for ver no direct evidence nor any are there cir- notwithstanding judgment dict will not be cumstances would indicate that granted jury. where there an issue for the testatrix after the execution of the will at any It can not be in this time indicated either by said case that the word or act that she had judgment notwithstanding subjected motion for to undue in- granted should be as a fluence or that she was verdict matter dissatisfied with the appealed provisions judgment law. the will. should The will was exe- shortly granted new operation be reversed and a trial the cuted before on she had an gall undue influence and of her issue of also removal bladder. She re- testamentary capacity operation issue of com- covered from the and she lived petency years of the deceased to for seven make a if thereafter without any with taking expressing action or reference to undue influence is stated change intent to or revoke the will. Earli- follows: er in her life had executed two wills “ ‘In a will ground contest on the both of which revoked. One she afterwards undue influence the burden is shortly prepared by her of these wills was prove contestant by preponderance trip. planned before she to take an ocean (1) the evidence the testator property to her In this will she left person was subject who would be sister, return After her Mrs. Nerison. influence, such op- (2) that there was trip returned to from her the will was portunity influence, to exercise (3) such destroyed. During and it the seven was disposition there was a to exer- will, years after the execution the influence, cise such (4) re- the regularly traveled between North Dakota sult was effect the of such influence.’ bought property in Florida Florida. She Farr, 615, In re Estate 150 Neb. 35 During all of considerable value. of- that 489, Proponent N.W.2d 490. directs at- affairs, her own business time she conducted tention to elements (1) (4) of the if influence she had felt undue rule. above executed had been on her when she exerted “ its dissatisfied with will was ‘In order to invalidate a undue ample oppor- provisions, time and she had influence must be of such a character experi- tunity change She had had it. destroy agency the free of the for, previously matters ence such testator person’s and substitute another pointed out, prior wills drawn two she had will for his own.’ In re Estate of revoked. In Heineman, each of which she afterwards 442, 13 Neb. N.W.2d case, Fehrenkamp’s re In See, also, the Nebraska Goist, In re 569. Estate of 488, 421, cited Estate, 1, 48 N.W.2d 154 Neb. 146 Neb. 18 N.W.2d 513”. opinion, proceedings were majority in the And in the case In re Heineman’s brought contest will of the testator. the Estate, Neb. 13 N.W.2d the jury. and a The issue tried to the court was Supreme Court of Nebraska said: testimony proponent At the close of the verdict was moved for directed “Undue influence cannot be infer- appealed will proponent The denied. red from opportunity. alone motive or supreme The court re- from the order. evidence, There must be some direct of the trial court and judgment versed the circumstantial, show that undue trial court with remanded the case only existed, influence not but that pro- judgment for the to enter directions very was at the time the will exercised upon ponent for a directed ver- the motion was In re Estate executed.” of Heine- was a brother dict. The contestant man, supra. in the case There is evidence testatrix. majority opinion cites case the Iowa The the execution and after that both before Ankeny’s Estate, In 238 Iowa 754, re told the contest- testatrix had of the will N.W.2d others, ant, that she left her brother including her home to A close examination of the facts in that n contended that (The contestant him. materially case differ from show that the nature of did understand testatrix in the at facts case testator bar. upon will and relied making her act living case was a widower Iowa a- non-expert who testimony of a witness lone in a house on a farm that he had owned testify objection ap- years. over number of His estate was permitted for a was $31,000. praised The will drawn opinion the testatrix did not attorney beneficiary by an who was doing she made when what she know one third of value of the estate. The will. daughter was the administratrix Estate, attorney Thompson who drew will. The will re of In In the case 814, 818, May 27, executed 1943. The testa- the rule was 44 N.W.2d 153 Neb. ordeal, mind being than two vive of sound April 1945 less tor died on memory certainly wish to At would will had been executed. years after the the will he ascertain of her will. execution of the contents time of respect surrounding dictated and this years The will was the circumstances was 85 old. attorney and under Ethel Mc- Meeker, execution of will of G. prepared by Intyre case, long relation- There the testatrix in the instant his was a direction. between the ship attorney materially and client different from facts Ankeny relation- attorney and testator and this circumstances case. ship decedent’s testimony was in existence the time of Mr. Stormon is con- testimony retained prepared. or cir- The will tradicted and there is no lock box and attorney legitimately his cumstances which it can any way under the of himself and members control he in be inferred that exerted family after the death of the testa- until influence undue the testatrix. pro- contrary, opinion, the will filed for tor after which was On the in the writer’s relationship bate. With reference to the the the conduct of the testa- evidence as to attorney the and the who years between testator the exe- during trix the seven after quote prepared conclusively dictated and the will we cution of the will shows opinion: from the entirely her she was free to exercise own any influence judgment without undue when consider, right ‘The had a court the will was executed. facts, in with the connection above what question The of influence was might undue vigorous campaign be termed a by recent case In family considered in the Nebraska the Meeker in effort to an Estate, Neb., 64 re O’Donnell’s N.W.2d maintain intimate relations the in which After the 123. This was will contest decedent. death of Mrs. validity Ankeny family purporting of an instrument the Meeker commenced the visiting the last will and of one entertaining testator and him be testament Nellie holiday They occasions. were con- O’Donnell was involved. The contestants sending postal him stantly cards and were children of deceased brother of the may appeal visiting This been an him. have the testatrix. The is from order in directing propon- natural kindness toward old the man a verdict favor of alone, who lived or it of the will and ordering arisen ents ad- reasons, gave from probate. other added to The but it and mitted to will stronger relationship made the proponents of the and members of their family major existed between the decedent and the estate his of the attorney.” They were testatrix. not related to the tes- old neighbors tatrix but were friends and There instant evidence in the case testatrix, them, and two of husband proponent such overtures wife, were nominated as executor and family the will or his towards the testatrix. respectively. mentality executrix As to the With reference to the in manner in In of the testatrix re O’Donnell’s Estate prepared the will was Ankeny case opinion quote from we Court: opinion states evidence shows that the will prepared appears was “It dictated and record testatrix, childhood, under school, the direction during attorney drew daughter who it Sunday periods was school in Saunders nominated as 'County, executrix thereof. The will of was described learn, slow testa- as backward, trix in the instant having case short had much diffi- easily could during culty have read it twenty comprehending lessons. minutes possession years she alone had it in One witness described in later while minded,’ Mr. Stormon gone procure ‘simple as and another wit- attesting possessed witnesses ness her as to the will. She described was about operation to submit major understanding intelligence. to a normal or possibility with a functions, might that she When not sur- she attended social or

526 is not “It be stated here that it accompanied should otherwise,

' the function of this court determine family to .from member question in- sisters whether or not undue same, her brothers while only established, She respect. fluence has not restricted 'was question or not there whether until she country school attended justify submission attended sufficient evidence and then years age or17 See, a'jury. In re Lincoln for a boarding school Kerr, 630, 222 N.W. attend- Estate of 117 Neb. and sisters Her year. brothers Fremont, Noren, 63; re Neb. Estate of and later college normal ed engaged gainful 230 N.W. 495”. taught school stayed the testatrix occupations, while opinion The -continues: described house work did home and outside addition, proposi- She had no ‘menial’ work. as “In there are other other members applicable as did tions of law to a determina- friends respect in such family. appeal condition it un- Her tion of this relates to least, as shown improve, influence, did not due A testator follows: up the time of her testimony, may dispose pleas- of his as he she was when require death that he father’s es. law does years age.” therein, does recognize his relatives nor put way obstacle appeal wheth- question on main making disposition infirm of aged or erred not sub- the court trial er or by will; provided, only, their undue in- the issue of jury mitting to the mentality their to the ac- conforms exerted on alleged have to fluence cepted tests at the time execu- of the Adolph ToppM. and by testatrix Clara the testamentary of instrument. tion such de- Topp, neighbors and friends the J. Bose, In re See, Estate of Neb. of the the executors who were and ceased Goist, 319; N.W. In re Estate to the elements With reference will. 146 Neb. 18 N.W.2d 513”. the to warrant necessary to established be grounds the of un- on In the instant case the of the will record shows that rejection will, stated the rule which her court after the execution of from and due influence re the case of In testatrix quoted bought from 1943to U.S. have bonds we Estate, supra. maturity $6,500 fur- The court of which Thompson’s value and burden is on contes- contained name “the bonds Stormon’s ther stated that prove joint payee,- . or produce tending payable to as evidence either were to tants to above, as elements stated in case her death. The cashier the four him each right to have the is- Bank at testified prerequisite Rugby of their the Merchants for jury to a determination. testatrix been a customer of his bank submitted sues * * * years; purchased ele- fifteen that she any If one of essential U.S. supported directly evi- by is not bonds from bank and that some enumerated ments came in from the inference drawn from bonds several bond or reasonable dence established, drives; that the record of otherwise the bank showed or facts fact directly must be re- bonds were of undue influence that some issued contention testatrix, large must tend to but that a show to number of jected. evidence directly payable payable in reference to were were influence them and undue question, and be of nature her death to A. such Stormon. These the will John by bought herself, will of the control the testator and bonds own something can not him to that he and it do did not initiative said cause supposition Suspicion Stormon bought or of undue influenced when she intend. require This same witness sufficient the sub- testified that the is not them. influence personally question jury conducted to testatrix her business mission A, quote We further a verdict.” from with bank Stormon sustain John Estate, supra: her in the re was with opinion In O'Donnell’s never bank. Reference testimony Every person Mr. Lutz. memory to tlie is also made of sound mind n has the anof attesting witnesses He was one of the constitutional legal right He dispose the testatrix. property by earlier will executed any will in man- testatrix known the ner that right that he had testified choose. It is a sacred Grpnvold 1931; duty respect that he was with which courts are in since bound to testatrix Rugby protect. that the Motor Co. instant case the con- business wholly testants any considerable produce had done a failed to amount bright evidence, company; that she was circumstantial, with that direct .either carrying prove on . necessary and in the four intelligent woman which are elements prerequisites she exercised transactions have the issue her business of undue independent influence judgment jury seemed submitted to the own for deter- True, very capable. opportunity mination. there was exertion of undue influence but there is not predicated majority opinion slightest evidence that such influence may be drawn naked inference that Furthermore, exerted Mr. Stormon. proponent fact herein, pointed out there evidence beneficiary there- was the drew testatrix, subsequent that the record Standing alone without evi- under. to the execution ever intimated inference the negativing dence such subjected that she had been to undue influ- might properly be sub- of undue influence ence Stormon; Mr. nor is there fairly jury. But when we mitted competent that the will of the tes- evidence testimony in the record as consider tatrix was the result of undue It influence. testatrix, ability the business seems clear to'the writer that the contest- wills, experience with and other business by any ants have failed to establish credi- matters after the death of her husband and testatrix, ble evidence that Ethol G. years particularly during the seven after McIntyre was induced to execute the will question, it seems she executed question through undue influence. inference, presump- that or even clear It would therefore unjust be unfair and tion, completely of influence has been undue testatrix to question submit the of un- removed, leaving no issue overcome jury due influence to a might that be more jury. for submission to the of fact As disposed to base a upon ques- verdict opinion: majority in the stated tion whether testatrix in disposing of her property was fair to her relatives rather “We have never considered whether upon than right fundamental presumption undue to make a influence arises disposition thereof as attorney she saw fit that an and as from the fact draws directed her will. The motion which he a substan- for a under takes judgment notwithstanding statutory verdict pre- benefit. We have tial granted. should have been sumption applicable to this situation. study careful cases texts Our say I am authorized to that Hon. GEO. dealing with this leads us to THOM, Jr., Judge, sitting District that we the conclusion should not GRIMSON, J., stead concurs in the judicial precedent establish a rule that expressed. views herein presumption undue influence in- a variably arises from the fact a that will Petitions Rehearing. On for attorney for a client an

is drawn major beneficiary who becomes a under

the will. The under which conditions MORRIS, Judge. Chief drawn might wills could con- such be ceivably presented greatly petition differ so that The have such a contestants presumption points in one would rehearing case serve discusses no justice carefully the ends of but another would or law that were not fact consider- impelling force court and pre- be creation ed this covered injustice.” opinion. vailing influence, appellant has issue of petitioner and undue unless con asking rehearing present newly testants are able to dis petition for filed a also scope competency covered evidence only relating insofar rehearing for a misinterpreta pointed is It testatrix.” This is a is concerned. our mandate special which, tion of a new trial that concurrence determination out that our effect, is indefinite advises the trial court that our deter issues” on all the “granted is controversy insufficiency to mination the evi to a might give rise presented respect compe with pleaded dence but not issue of issues whether tency upon is might conclusive the trial un abandoned court and therefore at the trial appear “it em less at a trial on new As we should new presented trial. be opinion new or additional throughout there were evidence is available phasized presentation upon jury question.” to a presented in the trial questions two statement is in urged argued This accordance case questions com They long established rule of this court were the appeal. holding new decision the evidence to be in influence. The petency and undue the sufficient sustain the ordered will be verdict becomes which we have trial- It the law of the on the merits. case will control trial of this case third appeal new trial or second where the that issues abandoned facts not our intention substantially are the same. Minot trial should he resurrected Flour on the second Auslander, Mill upon Co. v. the third. Insofar as N.D. presented 750; Asbury subject Hospital might N.W. Coun to the inter v. Cass language our ty, 523; 73 N.D. 16 N.W.2d include Desautel pretation that would issues abandoned, Compensation pleaded v. North Dakota Workmen’s 378; Bureau, interpreted 75 N.D. and’ N.W.2d hereby restricted to pertaining Ringo, those issues Huus v. 77 N.D. new trial 47 N.W.2d competency and undue influ questions of See also Dubs v. Northern 216. Pac. R. Co., ence. peti 51 N.D. 199 N.W. rehearing tions for are denied. argued It further Judge special concurrence of “holds Johnson only JOHNSON, JJ., there should be a retrial BURKE and concur.

Case Details

Case Name: Stormon v. Weiss

Court Name: North Dakota Supreme Court

Date Published: Jul 1, 1954

Citation: 65 N.W.2d 475

Docket Number: 7285

Court Abbreviation: N.D.