Gates v. Gates (In re Gates' Estate)

• Decision Date: 08 July 1921
• Docket Number: No. 22327.,22327.
• Citation: 183 N.W. 958,149 Minn. 391
• Parties: In re GATES' ESTATE. GATES v. GATES et al.
• Court: Minnesota Supreme Court

149 Minn. 391

183 N.W. 958

In re GATES' ESTATE.GATES

v.GATES et al.

No. 22327.

Supreme Court of Minnesota.

July 8, 1921.

Appeal from District Court, Winona County; Chas. E. Callaghan, Judge.

Proceeding by Lewis G. Gates and another to probate the will of George L. Gates, deceased, wherein Herbert S. Gates interposed objections. An order of the probate court disallowing the will was reversed on appeal to the district court, and the will admitted to probate, from which judgment contestant appeals. Affirmed.

Syllabus by the Court

It is not necessary under our statutes that witnesses to a will sign as such in the presence of each other, though each must sign at the instance, express or implied, of the testator, and in his conscious presence.

The evidence made the question whether there was a legal and sufficient attestation of the will here involved one of fact, and the findings of the court thereon are sufficiently supported by competent proof.

The record presents no error in the rulings on the admission or exclusion of evidence. Theo. Christenson, of Dawson, and Brown, Abbott & Somsen, of Winona, for appellant.

Webber, George & Owen, of Winona, for respondents.

BROWN, C. J.

George L. Gates, a physician and surgeon of Winona, this state, died on July 3, 1920, leaving what purported to be his last will and testament, by which he made specific disposition of his property and effects. The will was duly submitted to the probate court for allowance, to which Herbert S. Gates, a nephew of testator, interposed formal objections, on the ground, among others, that the will was not the last will and testament of decedent, because not executed in conformity with the requirements of the statutes in such case made and provided. After due hearing in the probate court it was held that the will was defectively executed, and it was disallowed, and probate refused. On appeal to the district court the order of the probate court was reversed, the court holding that the will had been properly executed. Judgment was so entered in the district court, from which contestant appealed.

The principal question presented is whether the evidence is sufficient to justify the conclusion that there was a legal attestation of the will. We answer it in the affirmative. The facts are not in dispute, and therefrom the trial court was fully warranted in upholding the will. The testator, Dr. Gates, was a physician and surgeon of many years' practice at Winona; his mental capacity is not challenged, nor is it suggested that the document in question, which purports to be his last will and testament, is not such in fact. It was prepared by an attorney at his office pursuant to directions given by the testator, and then taken by the testator to his own office, across the street from that of the attorney, for formal execution. It was there signed by him in the presence of his business associate, Dr. Muir, who subscribed the same as a witness. The parlor maid, Jennie Weir, who had been in the service of testator at his offices for several years, was then called in and requested to sign as the second witness, and she did so. The will then lay exposed on the office desk of Dr. Muir, the other witness. Testator stood at one end of the desk and Dr. Muir at the other. Miss Weir noticed the signatures of testator and Dr. Muir and testified that they were genuine; she knew the handwriting of each. The evidence taken as a whole justified the trial court in finding as a fact that Miss Weir knew that the document so signed by her was the will of Dr. Gates, and that she was joining Dr. Muir in its formal execution. Her testimony on the subject is a little uncertain, occasioned, no doubt, by the fault of memory in recalling a transaction which occurred several years before; but that she knew the document to be the will of Dr. Gates is clear enough. There was no showing of a direct request by the testator that Miss Weir sign as a witness. The request was made by Dr. Muir, but in the...