Edwardson v. Gerwien

• Decision Date: 05 February 1919
• Parties: EDWARDSON v. GERWIEN et al.
• Court: North Dakota Supreme Court

41 N.D. 506

171 N.W. 101

EDWARDSON

v.GERWIEN et al.

Supreme Court of North Dakota.

Feb. 5, 1919.

Syllabus by the Court.

Subdivision 3 of section 5649, Compiled Laws 1913, is as follows: “The testator must at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will.” Held, that the word “declare,” as therein used, does not mean that the testator must declare by spoken words that the instrument is his will, but such declaration may be made by other means than the use of spoken words, such as the use of signs, gestures, or any other means by which the testator can convey and make known to the witnesses that the instrument which he signed is his will. The word “declare,” as thus used, means to make known, to signify, to show in any manner either by words or acts.

Where one is contesting proof of a will on the ground that the testator at the time of making the will was possessed of certain insane delusions, it is not sufficient to introduce evidence which tends to prove the testator was possessed of such delusions. There should be further proof by the contestant to the effect that such alleged insane delusions have no foundation in fact or probability, in order to show that the delusion is wholly a product of the imagination. Held, in this case there is a failure of proof; there being no testimony introduced to show that the insane delusions alleged to have been possessed by the testator had no basis in fact or probability.

Additional Syllabus by Editorial Staff.

It must be presumed that a testator was sane when making his will until the contrary appears by competent proof.

That testator was filthy, and that he suffered from pulmonary tuberculosis and refused to eat, and for as much as two weeks at a time would lie in bed with his clothes on, would not be sufficient to show that he was insane when he made his will.

That testator's alleged insane delusions existed was not shown by the fact that he willed all his property to a sister and niece, particularly excluding all the other relatives, where such devise was valid.

Appeal from District Court, Mountrail County; Frank E. Fisk, Judge.

Action by K. E. Edwardson, executor, for the construction of the will of Herman Fred Gerwien, deceased, to which objections were filed by Lydia Gerwien, and others, and a cross-petition was interposed by Edward H. Gerwien, Fred W. Gerwien, and others. From a judgment on appeal admitting the will to probate, Fred Gerwien and others appeal. Affirmed.F. F. Wyckoff, of Stanley, for petitioner Edwardson.

Charles Loring and G. A. Youngquist, both of Crookston, Minn., for Lydia Gerwien and Ruth Gerwien.

E. R. Sinkler and M. O. Eide, both of Minot, for respondents and appellants.

GRACE, J.

The action is one which involves the construction of a will. A full statement of the facts will greatly aid in understanding the case. Herman Fred Gerwien, of Mountrail county, N. D., died the 24th day of February, 1916, at Powers Lake, N. D. He left a will in writing which was his last will and testament, in which he appointed K. E. Edwardson as executor. His heirs at law were his father, five sisters, two brothers, and a niece. The testator died seised of certain real and personal property. The testator by will divided and bequeathed all his real property to Ruth Gerwien, daughter of Lydia Gerwien, and Lydia Gerwien, by specific bequests as shown by the will, and all of the personal property to Ruth Gerwien. The petition shows the probable value of the real estate to be $3,500, and the yearly rents, profits, or income of the probable value of $100. It also shows the value of the personal estate to be about $1,600.

Objections were filed to the petition to prove the will by Lydia Gerwien, Fred W. Gerwien, Fred Gerwien, and Edward H. Gerwien. The cross-petition was interposed by Edward H. Gerwien, Lydia Gerwien, Fred W. Gerwien, and Fred Gerwien. The case was first tried in the county court, and decree entered therein. From that decree appeal was taken to the district court of Mountrail county by all the respondents excepting Lydia Gerwien and Ruth Gerwien. The trial was had in the district court and judgment was rendered admitting the will to probate and adjudging that the will was duly executed and published. From that judgment the appeal was taken to this court by certain of the legal heirs other than Lydia Gerwien and Ruth Gerwien.

The questions presented in this appeal are: First, whether the testator made sufficient publication of his will; second, whether he had sufficient mental capacity at the time of the execution and making of the will to make the same. As to the first question relating to the proper and legal publication of the will, we are fully convinced, after a thorough examination of the evidence and the law relative thereto, that there was a sufficient publication of the will. Subdivision 3 of section 5649, Compiled Laws 1913, reads as follows:

“The testator must at the time of subscribing or acknowledging the same declare to the attesting witnesses that the instrument is his will.”

[1] The will was properly executed. The testator properly signed it in the presence of two witnesses, each of whom witnessed the same in the testator's presence. What is the signification of the word “declare” as used in the above section? We are of the opinion that the word “declare,” as used there, signifies any act on the part of the testator which would show or make known to others, such as witnesses to the will or other persons present, that the instrument which the testator signed is his will, and that he understands and intends it as such. In declaring the same to be his will, the testator is not required to do so by words, but he may by other means than the use of words, such as the use of signs, gestures, or any other means by which the testator can convey and make known to the witnesses or others present that the instrument which he signs is his will. Lane v. Lane, 95 N. Y. 494. The word “declare,” as used in our statute, does not mean that one must speak. It means to make known, to signify, to show in any manner either by words or acts. This must be true, otherwise there would be many cases where the testator, having capacity to make a will, could not make one if the word “declare” in our statute means what appellant contends, which, in substance, is that the testator...