Haack v. Tobin (In re Ludwig's Estate)

• Decision Date: 07 February 1900
• Citation: 81 N.W. 758,79 Minn. 101
• Parties: In re LUDWIG'S ESTATE. HAACK et al. v. TOBIN.
• Court: Minnesota Supreme Court

79 Minn. 101

81 N.W. 758

In re LUDWIG'S ESTATE.HAACK et al.

v.TOBIN.

Supreme Court of Minnesota.

Feb. 7, 1900.

Appeal from district court, Ramsey county; Olin B. Lewis, Judge.

In the matter of the estate of Kate Ludwig, deceased. Eliza Haack and Fannie Gessard filed objections to probate of will. From a judgment of the district court affirming an order denying a motion for a new trial, J. J. Tobin appeals. Affirmed.

Syllabus by the Court

1. A last will and testament, not executed in conformity with the requirements of section 4426, Gen. St. 1894, is invalid.

2. A last will and testament must be signed by the testator in the presence of the subscribing witnesses, or, if not so signed, the testator must acknowledge to such witnesses that the signature thereto attached is his, or in some other way clearly and unequivocally indicate to them that the will about to be signed by them as witnesses is his last will, and has been signed by him.

3. To ‘attest’ the execution of a will, within the meaning of section 4426, Gen. St. 1894, is to witness and observe the execution and signing thereof by the testator, or to be expressly and clearly informed by the testator, before signing as witness, that he has signed and executed it.

4. Evidence recited in the opinion held sufficient to justify a finding by the trial court that the will in question was not executed as required by statute. J. F. George, for appellant.

C. N. Bell and Geo. E. Budd, for respondents.

BROWN, J.

This is an appeal by J. J. Tobin from a judgment of the district court of Ramsey county affirming an order of the probate court of the same county refusing the probate of the will of Kate Ludwig, and also from an order denying his motion for a new trial. It appears from the record that Kate Ludwig, at the time of her death, in July, 1898, was a widow without children, leaving surviving her, as next of kin, three sisters and the children of a deceased brother. She owned certain real and personal property at the time of her death, and attempted, at least, to dispose of it by her last will and testament. Some time after her death the appellant, J. J. Tobin, who is in no way related to the deceased, filed with the probate court what purports to be her last will and testament, and petitioned that it be allowed and probated. Due notice of his petition was given, and at the time set for hearing the next of kin of deceased above named appeared, and opposed the will; claiming that it had not been executed in conformity to law, and for other reasons not necessary to be stated. The probate court rejected the will, on the ground that it was not shown to have been executed in accordance with the requirements of the statute on the subject. The district court, on appeal, came to the same conclusion, and this appeal is the result. To prove the execution of the will, appellant called one Shire, who testified that some time in February, 1897, the deceased requested him to draw a will for her to execute; that he did so, drawing and preparing it in accordance with her directions, and delivered it to her for execution. The subscribing witnesses were then called, and testified as follows, omitting portions of the evidence not material, to wit: Mrs. Clara Eggert: ‘Did you know Kate Ludwig? A. Yes, sir. Q. Did she ever speak to you about making a will? A. One time she spoke to me about making a will. Q. About when was that? A. A short time before she asked us to sign the will,-asked us into her house to sign the will. A short time before that she spoke to us about making a will, and asked us if we would be willing- my husband and I-to sign it, and I said, ‘I guess so.’ Q. To sign it as witnesses, do you mean? A. Yes, sir. Q. When did she next speak to you about it? A. The next time she spoke to us about it was the day that she came in, and said she was ready for us to sign. Q. Her will? A. I don't remember. I can't say positively whether she mentioned the word ‘will’ or not, but she spoke to us before about her will; yes. Q. She came in, and asked you-- What did she say the second time? A. She gave me to understand that she was ready for us to sign, but whether she used the word ‘my will’ I don't remember that, but I understood that it was her will, because before she had asked us to sign her will. Q. You went into her house with your husband then, did you? A. Went into her house with my husband. Q. Do you remember how you went in there? A. We went from the little hall through the parlor, into the dining room, and she had on her dining-room table a pen and ink stand, and paper covered over, as she said, her will, and she sat down to the table, took the pen and ink, and sat down to the table; but I couldn't see what she was doing, whether she was writing, or what she did; I can't say. Q. Did you see her do anything? A. I saw her hand move, but I didn't know what she was doing. Q. Why didn't you know? A. Well, it didn't impress me that she was writing. Q. Where were you sitting from her? A. I was sitting-- Well, just as though I sat a little further back from this gentleman, right here. Q. You sat behind her? You could see the pen in her hand? A. I could see the pen in her hand. Q. And did you see her make any motion? A. I saw her go through motions, yes, as though she were writing, but it didn't impress me that she was writing at the time. Q. What did she then do, if anything? A. She then got up, and handed the pen to my husband, and he sat down, and wrote his name, and then I sat down, and wrote mine beneath it. Q. Is the paper presented to you now, the will proposed in this case, the paper which was on the table that you refer to? A. I can't say whether it is the paper, as I didn't see the paper. It was all covered up, excepting the two lines, where we wrote our names. Q. Is that your signature on that paper? A. Yes, sir; that is my signature. Q. Did you observe any other writing on the paper at that time? A. No, sir; I did not; it was all covered up with a sheet of paper. * * * The only thing I saw was my husband's name. Q. There was nothing visible to you on that paper except your husband's name? A. That was all I could see.' Cross-examined: ‘Q. With the exception of your husband's name and your own name, did you see any writing then on the paper that you and your husband signed in Mrs. Ludwig's house? A. No, sir; none that I can think of,-none whatever. Q. Is there any writing on the paper except what you and your husband wrote, so far as you know? A. I don't know, because it was covered up. Q. If there was any, you didn't see it? If there was any writing on the paper, except your husband's name and your name, you didn't see it? A. No, sir. Q. Now, Mrs. Eggert, you have no interest in this one way or the other? A. None whatever. Q. Did Mrs. Ludwig say anything to you after you got into the house? A. All she said after we had signed the will was, ‘Well, you both know that I am not crazy.’ That is all she said. Q. Well, after she had finished at the table, * * * did she say anything to you? A She just handed the pen to my husband. I don't know that she said anything. I didn't pay any particular attention to it. Q. She made no remark whether she was signing her will? A. No, sir. Q. After she got up, didn't she say that, ‘I have signed this instrument; this is my will; I want you to witness it’? A. No, sir.' Fred C. Eggert, the other subscribing witness, testified: ‘Q. What did you observe when you went into the house? A. Went into the house in the hall, and the front room, through the archway, and on the dining-room table, I guess it was, I seen this instrument there,-paper, and the pen and ink. She stepped forward, picked up the pen, went across the paper, and motioned on the paper, as I understood, to show me where to sign. Then I stepped forward to sign my name, and I then handed the pen to my wife, and she signed. Q. Did she ask you then to sign? A. Not in her house; she asked that in my house. Q. She took up the pen, and motioned over the paper, and she got up, and handed you the pen, did she? A. Yes. Q. Did you see whether she was signing or writing or not? A. No. I see, as soon as I went towards the table, I see that it was blank, and covered up,-saw it was covered up, to keep it secret,-and I stepped back, and she motioned, and I stepped forward, and I signed it. Q. You thought she didn't want you to see? A. I saw it was a secret; therefore I didn't read anything; wouldn't question to sign anything, but I trusted to Mrs. Ludwig's honesty. I trusted to her honesty that that was what she wanted us to sign. Q. What was? A. The will. Q. What makes you think it was the will she wanted you to sign? A. Because she asked us previous. Q. Did she say anything else to you about that, why she wanted you to sign a will or anything? A. Not to me. My wife,-she mentioned something to my wife, and she told me. Q. When you came to sign, did you have to open the will to sign it? A. No, sir. Q. Was there anything else visible there? A. No. Q. Didn't you see any writing at all? A. No, sir. Q. Upon the paper? A. No, sir. Q. Was the bracket and the word ‘Witnesses' there afterwards? A. Not to the best of my memory. I didn't see any writing. Q. Of any kind whatever? A. No, sir. Q. Except your own signature and your wife's signature. You say that, after you and your wife got into the house there, you found the paper on the table. Did she prepare it there before you came in, apparently? A. It was all prepared. It was that way-found...