Keller v. Reichert

Christianson, J. This is an appeal from a judgment of the district court of Ward county admitting a will to probate. The facts necessary to a proper understanding of the questions presented on the — 78 — appeal will be briefly stated: On February 24th, 1920, one Joseph Reichert died at St. Joseph’s Hospital in the city of Minot, in this state, leaving certain real and personal property. He also left two wills, one signed on February 23rd, 1920, and the other on February 21th, 1920. The will admitted to probate by the judgment appealed from is the second will. The deceased was an unmarried man and loft surviving him a brother and four sisters. The respondent in this case claims and the evidence adduced by her upon the trial is to the effect that she and the deceased were engaged to be married and that the date of the marriage had been fixed for some time in April, 1920. Under the first will Reichert left $100 to his priest for masses for his soul; $500 to St. Leo’s Church; $500 for the education of worthy catholics to the priesthood and $200 to the respondent, Mary Keller; the remainder of his property to be divided, equally among his brother and sisters. Under the second will he left $100 to his priest for masses for his soul and loft all of his real property to the respondent, Mary Keller. No provision was made for the distribution of the personal property, hence the same, according to the law of succession of this state, would be distributed among the brother and sisters. There is no question that Joseph Reichert was a very sick man both at the time he executed the first and the second will. He had received the last sacrament before he executed the first will. After he had made the first will be asked one of his attending physicians to write the respondent, and in compliance with this request, the physician, on February 23d, 1920, wrote her as follows: “Minot, N. D. Feb. 23, 1920. Miss Keller: Joe Reichert is very sick with pneumonia and he wants you to come on first train. He is in St. Joseph’s hospital in Minot, (signed) Dr. A. Carr.” Thereafter on February 24th, 1920, at his request the following telegram was sent to her: “Joseph Reichert seriously ill at St. Joseph’s hospital, Come at once. St. Joseph’s Hospital.” She received both the telegram and the letter on the morning of February 24th, 1920, and took the first train to Minot. The train was late and she did not arrive until about 4 o’clock in the afternoon. She at once went to Reichert’s room in the hospital. He informed her that he had made a will, and according to her testimony, stated that he wanted to change the will which he had made, and she, in accordance — 79 — with his request, went down town and had the second will prepared. The second will was prepared by the same attorney who prepared the first one. The execution of the second will is attested by the two attending physicians. There is square conflict in the evidence both as to the mental condition of the testator and the conditions surrounding the execution of the second will. There is no question, however, but that the signature attached to the will was written by the testator. The serious questions in this case are whether the will was executed us the result of fraud or undue influence practised or exercised by Mary Keller; and whether at the time he signed the will the testator had mental capacity to do so. These questions involve a consideration of the competency and probative force of the testimony of the respondent, Mary Keller. If her testimony was competent, and if the facts are as she purported to detail them, then the will in controversy here is valid, and the judgment appealed from here the correct one. It is contended, however, that her testimony was inadmissible under § 1811, Comp. Laws, 1913, which prohibits a party “in any civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may bo rendered for or against them from testifying as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party.” It is further contended that the testimony of the respondent was incompetent under § 5680, Comp. Laws, 1913, which provides that “all beneficial devices, legacies, or gifts whatever made or given in any will to a subscribing witness thereto are void unless there arc two other competent subscribing witnesses to the same.” It is further contended that the respondent failed to sustain the burden of proof; that this court should say as a matter of law that the testator was without mental capacity to make a will, 'and that there was no legal publication of the will. These propositions will be considered in the order stated. The first question presented for determination is whether § 7871, Comp. Laws, 1913, inhibited the respondent Mary Keller, from testifying with respect to the preparation, signing and publication of the will in question. That section so far as material here reads as follows : “No person offered as a witness in any action or proceeding in — 80 — any court, or before any officer or person having authority to examine witnesses or hear evidence, shall be excluded or excused by reason of such person’s interest in the event of the action or proceeding; or because such person is a party thereto, or because such person is the husband or wife of a party thereto, or of any person in whose behalf such action or proceeding is commenced, prosecuted, opposed, or defended, except as hereinafter provided. ... 2. In any civil action or proceeding by or against executors, administrators, heirs at law ox next of kin in which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party; and where a corporation is a party in proceedings mentioned in this section, no agent, stockholder, officer, or manager of such corporation shall be permitted to testify to any transaction had with the testator or intestate.” After a careful consideration of this question, we are of the opinion that this statute did not render Miss Keller’s testimony inadmissible. The general policy of the statute is to make all persons competent witnesses in all actions and proceedings in any of the courts of this state. There are certain exceptions to this general policy which are enumerated in the statute. The only way in which we can ascertain the scope of the exceptions is to look beyond such language, and enlarge the exception which the lawmakers have prescribed, St. John v. Lolland, 5 N. D. 140, 143, 64 N. W. 930. The statute by its express terms applies only to a “civil action or proceeding by or against executors, administrators, heirs at law, or next of kin in which judgment may be rendered or ordered for or against them.” Mowry v. Gold Stabeek Co. 48 N. D. 764, 186 N. W. 865. The probate of a will clearly does not come within the terms of the statute; That is not a claim or demand which arose out of any transaction with the testator during his lifetime, existing at his death, and which might be enforced against him if living, and which his executors, administrators, heirs at law, or next of kin are compelled to prosecute or defend in his place. That is a judicial inquiry whether the instrument before the court is the last will and testament of the deceased, and en — 81 — titled to be admitted to probate as sueb. 40 Cyc. 2266; 28 R. C. L. p. 510; Re Veasey, Ann. Cas. 1914A, 982, note. Much of wbat bas been said with respect to § 7871, supra, is also applicable to § 5680, Comp. Laws, 1913. That section by its terms applies only to “a subscribing witness” to tbe will. Tbe respondent, 'Mary Keller, was not a subscribing witness. Hence, tbe section does not apply. Sellards v. Kirby, 82 Kan. 291, 28 L.R.A.(N.S.) 270, 136 Am. St. Rep. 110, 108 Pac. 73, 20 Ann. Cas. 214. See also Mackin v. Mackin, 37 N. J. Eq. 528. There is some conflict in tbe authorities as to tbe force of tbe implication resulting from tbe fact that one who is a beneficiary under tbe will is active in procuring tbe execution thereof. Tbe various authorities dealing with this question are collated in a note appended to Kirby v. Sellards, 28 L.R.A.(N.S.) 270. See also 28 R. C. L. 144. It is unnecessary to determine which line of authorities should be followed in this state, for tbe court in its instructions herein in effect stated that Mary Keller bad tbe burden of proving that tbe will was not executed by tbe testator as a result of fraud or undue influence on her part. Hence, tbe instructions given were as favorable to tbe appellants as they were entitled to under any of tbe legal theories ap* plicable where tbe beneficiary under a will is also active in the preparation thereof. Tbe jury guided by these instructions, in answer to specific questions, said that no fraud or undue influence bad been exercised. They, also, said that tbe will was prepared in accordance with instructions given by tbe testator on tbe afternoon of February 24th, 1920; that at tbe time be gave such instructions be fully understood wbat be was doing and knew wbat property be possessed and to whom be desired to leave it under bis will; that be knew and understood tbe nature of tbe business in which he was engaged; that the will in suit was prepared in accordance with and pursuant to tbe instructions be so gave; that it was read over, and tbe contents thereof fully' explained, to him an hour before be signed it; that at tbe time be signed it or immediately prior thereto or thereafter be declared to the two attesting witnesses that it was bis last will and testament, and be signed tbe same in the presence of such two subscribing witnesses, and that they thereupon in bis presence and in tbe presence of each other signed their names thereto as subscribing witnesses. — 82 — Under our law tbe parties, having demanded a trial by jury, were entitled to have the questions of fact in the ease submitted to and determined by a jury. Comp. Laws, 1913, § 8620. This, of course, included the questions of credibility of witnesses and weight of their testimony; and the court is not at liberty to review or revise the action of the jury, unless the verdict is without substantial support in the evidence. And in our opinion it cannot be said that these findings of the jury are without substantial support in the evidence. There is nothing to indicate that the disposition of the testator’s property as made by the will was an unnatural one. The evidence clearly shows that Miss Keller was the one person that was uppermost in his mind. Reference has already been made to the letter which he caused his physician to write and the telegram which he caused the hospital to send her. The undisputed evidence further shows that on February 24th, 1920, he wrote here a letter which, according to the post-office mark was mailed at Minot, N. D., at 2:30 o’clock p. m., on February 24th, 1920. The letter is in his own handwriting and reads as follows: “Minot, N. D. Feb. 24, 1920. My dear Mary: Will write you a line to let you know that I am considered to be quite low. I got a private room now. Well, Mary, I wish you could come up and spend a few days. I have got all the sacraments. Well must close. Tour true love. Joseph Reichert. Room 1 on 2 Floor.” The evidence further shows that during the night preceding the execution of the will, that is during the night intervening February 23d and February 24th, 1920, he caused his nurse to telephone the various hotels to ascertain if Mary Keller had arrived. And the Mother Superior, whose testimony otherwise was not favorable to Mary Keller, stated that when she was in Reichert’s room on February 24th, 1920, he told her that he was waiting for Miss Keller and expected her to arrive. The evidence further shows that at the time he executed the first will he stated to the attorney who prepared it that he might want to change the will and that he particularly indicated that he might want to eliminate one of the sisters entirely as she had not written to him for a long time. The evidence shows that after Miss Keller arrived he suggested to her that they get married at once and that this plan was abandoned because it was found that — 83 — the priest was out of the city; that he informed hex of the will which he had made the day before; that she obtained this will and that they went over and discussed the provisions' thereof; that he expressed a desire to make a new will and directed her to go to see the attorney who had prepared the first will and have him prepare a new will making such disposition of the property as is made in the will in suit. In addition to these serious matters, they talked about many other things; he asked her how the wrist watch, which she was then wearing which he had sent her as a Christmas present the preceding Christmas was keeping time; he told her about having accompanied her father to a local eye specialist a short time before, and described the condition of her father’s eye; he referred to certain horses belonging to her father, and stated that he expected to buy one of these horses in the spring. The attending nurse testified that after the will was signed and as she was picking up Miss Keller’s hat which was lying on a chair in the room, Reichert called her attention to the fact that the hat belonged to Miss Keller by saying “That is Mary’s hat.” So far as the publication of the will is concerned, there is, in our opinion, no reason whatever to justify this court in saying, as a matter of law, that the will was not published. The two physicians who signed the will as subscribing witnesses, both testified they so signed it in the presence of the testator and in the presence of each other. They also testified that the testator signed it in their presence. The attestation clause is in due form and reads as follows: “This instrument was on the day of the date thereof, signed, published and declared by said testator Joseph H'. Reichert to be his last will and testament in our presence, who at his request have subscribed our names thereto as witnesses in his presence and in the presence of each other. A. Carr, of Minot, N. D. Frank E. Wheelon, of Minot, N. D.” In short there is no dispute in the evidence but that the testator signed the will himself, holding the pen in his own hand, without any assistance except on the part of the nurse who held a magazine or some other hard substance under the document when he signed it. According to the testimony of Mary Keller, there was a specific declaration by the testator that this was his last will and testament and a request by him that the two physicians sign the same as subscribing — 84 — witnesses. This testimony, of course, is strictly in accord with the attestation clause to which the physicians affixed their signatures; and when the testimony is considered as a whole, we are of the opinion that the questions of mental capacity, fraud and undue influence were all questions of fact for the jury, and that the findings of the jury on these questions are binding upon this court. What has been said disposes of all the controlling questions presented on this appeal and it follow's that the judgment appealed from must be affirmed and it is so ordered. Birdell, Ch. J., concurs.