Ouren v. Friswold

*666 Birdzell, Ch. J. One L. O. Stai died in November, 1926. Thereafter a document purporting to be his will, dated November 5, 1925, was admitted to probate in the county court of Griggs county. Certain heirs joined in a petition for revocation of probate and for letters of administration. The petition was dismissed and an appeal taken to the district court, where the cause was tried before the court and a jury. At the conclusion of the trial the court granted the motion of the respondents to dismiss the appeal and ordered judgment in their favor. From the judgment of dismissal and for costs, the petitioners appeal to this court. The grounds for contesting the probate of the will as they appear in the petition are that the deceased did not subscribe the will in the presence of the subscribing witnesses nor acknowledge to them that the same had been signed by him or with his authority and that they did not sign their names at the request of the deceased and in his presence; also, that the execution of the will was secured by undue influence practiced upon the deceased by the legatees, consisting in persistent and urgent solicitation that he make his will in their favor and consisting further in unjust criticism of the petitioners directed to the deceased. The evidence on the issues presented by the petition is briefly as follows: Seval Friswold, an officer in the bank where the deceased did business, and who had been a business adviser of the deceased, drew the will upon the request of the deceased. He testified that the deceased told him that he desired to give his property to his .two sisters, the respondents, because while his family was sick *667 -(the illness resulting in the death of his wife and two daughters), they had come and helped him and had taken care of them; that he had stayed with Mrs. Nolen through the winters for several years and ■other relatives had not done anything for him. After the conversation in regard to making the will he went to the bank and wrote it and on the day the will was. executed he and one E. Gr. Iioel went to the place where deceased was staying, Max Wild’s house. Friswold and Hoel went into the room where the deceased was lying in bed. The deceased sat 'up in bed; Friswold told him what he had written and explained its contents, deceased saying that was the way he wanted it. Friswold obtained a piece of board about fourteen inches .square, placed it in front of the deceased on the bed, gave him an indelible pencil and told him “what to sign,?’ and he signed the will. He was pretty weak • at the time. Hoel was there and at the time .he arranged to have deceased sign the will. The kitchen door stood ■open about twelve or fourteen feet away and Friswold called Max Wild to come, the latter being in the kitchen. This was just about the time he was signing it. Wild signed just as soon after deceased •signed as he (the witness) could get the paper to him on the same board. Hoel signed and then Wild. Friswold didn’t remember how far Wild had come from the kitchen before deceased signed the will but “he was coming all the time into the room.” Deceased was trying to sign when Wild was called. He hadn’t finished signing. Deceased •asked Wild to witness his will “or words to that effect. I couldn’t say the exact words. Will you witness my will or will you sign my will.” Thought he said, “this is my will. I don’t think he used the word that he had signed it. Of course it was signed and Max Wild was there, that is, near enough to see him sign.” Witness testified “Yes, he (deceased) said, T signed it; will you witness my will?’” Was quite sure he said it was his will. “Yqs, he told him that he signed the will and wanted him to witness it.” He had to sign as a witness to his will. Hoel testified that he and Friswold went to Max Wild’s place where the deceased was ill and went into the room a short time before anybody else came in. Max Wild came into the room upon being called by Friswold. “He called him before Mr. Stai signed the will.-” Max Wild was in the room while Stai was signing the will. “He was called before Mr. Stai signed it.” Wild testified he signed *668 the will at Stai’s request. Friswold. called him and when he got into the room Stai asked him to sign his will. In response to the question as to whether he had seen Stai sign, he said, “Well I didn’t just exactly see it. Some transactions that were brought there, you see, left my mind, so I don’t remember it just right.” Friswold had the will when he ("Wild) came into the room. On being asked whether the will was handed to him (Wild) immediately after he came into the room, he said “I can’t remember that very close.” Friswold had the will in his hand but he didn’t hand it to the witness right 'away. They read the will to him (Wild) before he signed it. It was handed around to different ones. Tie thought the kitchen door was shut when he was called but didn’t remember whether it was open or shut. Stai heard the reading of the will. Witness signed it after it was read to him. Tie is sure that it was read to him by Friswold. Didn’t know whether lie was the last one to sign it. Didn’t remember. Didn’t remember what they had done with it. “I kind of lost track of it.” Didn’t remember whether Stai had asked him to sign the will. They handed him the board and he thought he signed the will on the table. He was sixty-three years of age and testified that his memory was failing quite a bit. After he got into the room Mr. Stai asked him first whether he wouldn’t sign his will. Friswold, upon being recalled, testified that the will was read but once. He didn’t read it separately to Mr. Wild. He read the will to Stai and Wild must have been near enough to hear it. On the issue of undue influence the record shows that Mrs. Ouren, one of the heirs, and a sister of the deceased, was called as a witness on her own behalf. The deceased visited her for the last time in July, 1925, staying one week. He was sickly at the time. She next saw him at the hospital in Cooperstown (this was Max Wild’s place) shortly after he was taken there. She realized that something had happened. Mrs. Nolen and Mrs. Gullickson, the respondents, were there. Objection was sustained to a question as to whether or not the change spoken of related to his friendliness or unfriendliness to the witness; also, as to whether the witness had found out that something had been said to the deceased in regard to her or her folks which caused him to take offense at her. ¡She couldn’t say how many times she talked with the deceased while he was at the hospital. Objection was sus *669 tainecl to a question as to who was there all the time with the deceased when she (the witness) went to the hospital. She had no talk with the deceased when he was in the hospital. Objection was sustained to a question as to why she had no talk with him. Petitioners and appellants offered to prove that the witness attempted to converse with the deceased but that Mrs. Gullickson and Mrs. Nolen were present and prevented her from having any conversation with him and further that the witness had learned that parties had gone to deceased with stories that caused him to feel offended towards her and that she had desired to explain these matters to the deceased but was unable to do so on account of Mrs. Gullickson and Mrs. Nolen. The court indicated that the petitioners might prove that they had been prevented from seeing or speaking to the deceased at the hospital if such were the fact. The witness testified that Mrs. Gullickson was there so that she couldn’t speak with the deceased alone. The deceased told her something and Mrs. Gullickson came in and said “shut up.” She had no opportunity to talk with the deceased alone. There was no offer to prove what had been said to the deceased that would tend to influence him adversely to the contestants, nor who had said it. All of the testimony above abstracted was offered by the contestants. The defendants and respondents introduced no evidence upon the trial. On this record we are convinced that the evidence would not support a finding that the will was not executed in the manner required by § 5649, Comp. Laws 1913, which reads: “The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority” and provides that the testator “must at the time of subscribing or acknowledging the same declare to the attesting witnesses that the instrument is his will” and that they must sign “at the testator’s request and in his presence.” We are also of the opinion that the evidence, both that which was received and that which was offered and excluded, does not tend substantially to prove that at the time of the execution of the will the testator was under the domination or influence of the respondents to the point where his act in executing the document could be said not to be his free and voluntary act. It is not enough that the evidence might tend to prove that the deceased had been unjustly prejudiced *670 against tbe petitioners or tbat circumstances account for an unequal ■distribution of the affections of tbe deceased towards relatives of the same degree; it must appear tbat bis volition was interfered with. 1 Underbill, Wills, § 125. Error is also predicated upon tbe action of tbe trial court in dismissing tbe proceeding upon the motion of tbe defendants’ attorney. It is contended that, under tbe statute, chapter 133, Laws of 1921, § 7643, .Supplement to tbe Compiled Laws of 1913, it was tbe duty of tbe court to deny tbe motion and submit tbe issues to tbe jury. We are of tbe opinion tbat tbe error, if any, was without prejudice (Rattie v. Minneapolis, St. P. & S. Ste. M. R. Co. post, 686, 215 N. W. 158, decided at tbe present term) and tbat we would not be warranted in ordering another trial, which could but result in a judgment for tbe defendants. Judgment affirmed. Burr, Christianson, Nuessle, and Burke, JJ., concur.