Kittleson Estate v. Kittleson

SMITH, P. J. Appeal from an order denying probate of an alleged will and from an order denying motion for new trial. The trial court found that the testator, Ole Kittleson, at the time of his death, was aged and infirm and about 94 years of age; [128] was born in Norwa) and came to this country about r86i; that he was not able to read, write, or speak, or transact business in the English language; that on the 1st day'of December, 1909, when he was about 90 years old, the deceased signed an instrument which, on the fact thereof, purported to >be his last will and testament, and that by terms of said instrument six-elevenths of his property was willed to his own children, and five-elevenths thereof was willed to certain stepchildren who were not related to him, being children of his third wife by a former marriage; that the deceased, at the time of the making of said alleged will, did not publish or declare to the witnesses Cooney and Daigle, witnesses to the will, either in form or substance, that it was his last will and testament; that the witness Daigle went to the house of deceased at the request of Holver Kittleson, a son of the deceased; that after Daigle reached the house all the conversation between Ole Kittleson, deceased, and every other person was in the Norwegian language, and no part thereof was understood by the said Daigle; and that said Daigle signed the will at the request of Cooney, the person who drew said will. [1, 2] In the entire record there is not a scintilla of. evidence tending to show that the testator, when he signed the paper, by wordi, sign, or gesture, stated, or in any manner indicated to the witness Daigle, that he, the testator,- knew or understood that he had signed a will, or knew the contents of the paper he signed. The witness Cooney; who drew the will, testified that he read the will in the hearing of the deceased Kittleson, but the evidence shows quite conclusively that Kittleson did not understand the English language, and could have obtained no knowledge of the contents of the writing from such reading. It is also clear that the witness D'aigle was not present when the will was readi, and did not know the contents of the instrument, though he understood it to be a will. It is undisputed also that the attestation clause to the will was not read by Daigle or in his hearing. The attestation, therefore, was without probative force or effect. Ross v. Taylor, 39 S. D. 608, 165 N. W. 1079. So far as the record discloses every word that was written in the will by Cooney was dictated by Holver Kittleson, the son, and he does not testify that he received instructions from his father concerning the matters to be put into the will, or even that he [129] communicated to his father the things he had instructed Cooney to -write into the will. [3] This court in Ross v. Taylor, supra, held that: “A will must he executed- in .accordance with the statutory requirements or it is entirely void. Courts cannot supply defects, nor can they hold statutory requirements to be mere formalities which may be waived. The rule that the intention must govern, which rule applies to the interpretation of wills, does not apply to their execution. * * * Where publication or declaration by the testator that the ‘instrument is his will’ is lequired by statute, there must be some declaration.by the testator that the instrument is his will, which -declaration must be made -to each of die witnesses, though the declaration need not be by word, but can be by any act or sign by which such communication can fairly be made. * * * It is a duty imposed upon a testator by the laws of this state to see that his witnesses are advised that they are not mere witnesses to his signature, -but that the instrument he executes is his will. * * * The purpose of this statutory provision is clear; it is to require proof, not -only that a testator executes the writing, but, what is even far more important, that he understands the -nature of the same.” In this case there is no evidence-whatever, either ¡by statement of the testator himself to the subscribing witness, or otherwise, that the testator knew he was signing a will, or had any knowledge of the contents of the instrument he signed. The'subscribing witness, -Daigle, was not acquainted with' and had never seen the decedent prior to that occasion; could not speak or write the -Norwegian language, and had no communication with him- concerning- the instrument he saw him sign. [4] The statute specifically requires a declaration -by the testator to the subscribing witnesses, in some form, either in- -language or by signs or other means, that the instrument he has executed is his will. In the absence of such- declaration, a direct relqjuest that the witness sign the instrument attesting its execution would 'be insufficient under the statute. Rinding no error in the record, the order and judgment of the trial court are affirmed.