In re Bakke's Will, 24033.

• Decision Date: 20 June 1924
• Docket Number: No. 24033.,24033.
• Citation: 199 N.W. 438,160 Minn. 56
• Parties: In re BAKKE'S WILL. Appeal of STENE.
• Court: Minnesota Supreme Court

160 Minn. 56

199 N.W. 438

In re BAKKE'S WILL.

Appeal of STENE.

No. 24033.

Supreme Court of Minnesota.

June 20, 1924.

Appeal from District Court, Goodhue County; Willard L. Converse, Judge.

In the matter of the appeal from the order of probate court allowing the will of Gunhild Bakke, deceased, to probate. From an order allowing the will, Christina Stene appeals. Affirmed.

Syllabus by the Court

The presumption is that the contents of a properly executed will were known to the testator. The wills of the blind are no exception. There being no proof of imposition by fraud or undue influence, a blind testatrix, in the full possession of her faculties otherwise, will not be presumed ignorant of the contents of her duly executed and attested will. F. M. Wilson, of Red Wing, and Edgerton & Dohs, of St. Paul, for appellant.

Mohn & Mohn, of Red Wing, and Andrew Finstuen, of Kenyon, for respondent.

STONE, J.

The will of Gunhild Bakke was admitted to probate in the probate court of Goodhue county. It was contested by Christina Stene, a daughter of the testatrix, and she appealed to the district court, where there have been two trials before the same judge. His first decision was that the will was not sufficiently proven. It was put upon the ground that because the testatrix was blind at the time of the execution of the will the burden was considered to be upon the proponents to prove affirmatively that its contents had been made known to her. Concluding that the decision was wrong, the learned trial judge ordered a new trial, on which he determined that the will was sufficiently proven and should be admitted to probate. The contestant moved for a new trial, and the appeal is from the order denying that motion.

The will was executed October 11, 1890. Mrs. Bakke was then about 53 years old, and had been a widow since 1885. In that year her husband died seized of 320 acres of land in Goodhue county. It was his farm, and 80 acres was the family homestead. He died intestate, so that his personal property and real estate descended to his heirs as provided by statute. His widow, the testatrix, took a life estate in the homestead and the fee in an undivided one-third of the other 240 acres. The remainder in the homestead and the fee in an undivided two-thirds of the rest of the farm vested in the seven sons and daughters. The contestant, Mrs. Stene, received her share.

The farm remained intact notwithstanding this division of ownership, and the testatrix continued it as her residence until her death. She devoted considerable attention to its management. There is no question as to her mental capacity, and there was no undue influence. The legal foundation upon which this contest is sought to be established is that for many years preceding her death Mrs. Bakke had suffered from a most distressing cancer of the face, which had almost destroyed her eyesight. For some time before her will was executed she had been nearly blind. In addition to that, her hearing was seriously impaired, but there is no question that one talking to her could make her understand by using sufficient voice.

In that situation it is contended that, in order to establish the will, the burden of proof resting upon the proponents was not satisfied by evidence of mental capacity and due execution of the will. It is urged that in such a case there must be in addition affirmative proof that the testatrix knew the contents of the will. In this case there was no such special proof.

The finding of fact is that ‘she was of sound mind and free from undue influence; of lawful age and under no restraint; and that said instrument was by her executed in all respects according to law.'

The trial judge stated that he found in the case ‘no circumstance suggesting imposition.’ On the other hand, he said, ‘everything pointed to a situation as wholly free from imposition as could well be imagined.'

One of the subscribing witnesses was dead. The other testified that Mrs. Bakke acknowledged that it was her last will, and ‘that he saw her make her mark.’ The testatrix had signed the will by proxy, her name having been signed for her by a Mr. Kyllo, who was named as the executor, but who predeceased the testatrix by several years. The same witness, Mr. Henkel, testified that he had observed how the testatrix acted; that he had known her well for a long time, and that, in his opinion, ‘she was a very keen woman and understood business matters.'

Preliminary to a discussion of the controlling point in the case it is well to say that we do not regard the fact that the will was submitted to the testatrix for execution by Mr. Kyllo, who was named as the executor, as casting any doubt upon the good faith of his participation in the matter. He got nothing by the will. It is not shown by whom or when the will was drawn. Presumably it was prepared at the direction of the testatrix. There is no suggestion that Mr. Kyllo was other than a trusted friend, selected by Mrs. Bakke as her executor. There is not a circumstance indicating that he had any ulterior motive in bringing about the execution of the will, or that he, rather than Mrs. Bakke, dictated its contents. There is nothing in his participation in the transaction even remotely suggesting that Mrs. Bakke was imposed upon.

One argument against the conclusion reached below that there was no imposition is the fact that the appellant, Mrs. Stene, was expressly cut off from participation in the estate. On that subject the will spoke as follows:

‘The reason why I do not leave any devise or bequest to my daughter, Christina Stene, is that she is married and that she and her husband have already received what I consider to be her full share of my estate.'

Mrs. Stene was married some 10 years before the date of the will. In the strict sense, neither she nor her husband ever received anything from the mother's estate. But there can be no truthful denial of the fact that, at or about the time of her marriage, her father, husband of the testatrix, conveyed to appellant's husband a quarter section of land in Swift county. It was a gift. It is claimed that it had but little value. But it had some value, and none of the other children ever received anything by way of an advancement from either of their parents. Therefore it is not for those who survive her to say that Mrs. Bakke's expressed opinion that Mrs. Stene and her husband had received what she considered to be ‘her full share of my estate’ was other than a fairly accurate interpretation of the situation. Mr. Stene had received a substantial donation from the family property of his wife's parents.

With people in the circumstances of the Bakkes, it is not the usual thing for a husband and wife, particularly the survivor of them, to make the technical distinction between their respective properties that is here sought to be made between the estate of Mrs. Bakke and that of her husband. The estate she had, which may have been built up as much by her efforts as his, came from him by operation of law on his death. The record puts beyond question the propriety of the conclusion reached by the learned trial judge that there were no circumstances indicating imposition.

The fact that the daughter who remained at home, caring for her mother, received a special legacy equivalent to $1.50 per week during the period of her services, is a circumstance strengthening that conclusion. The propriety of such a special provision in favor of that daughter is too obvious. There is nothing about it to suggest overreaching. The probability is that the allowance was altogether too small to compensate for the services referred to.

Too often the one child who remains to the last with an aged parent, rendering a service which only love can render, is not recompensed sufficiently or at all. That Mrs. Bakke's will did not overlook the claims of this daughter is substantial evidence of its genuineness.

This is not a case of an ‘inofficious, harsh, and unjust will’ nor of a ‘grossly unequal or unjust distribution of property.’ Compare Tyner v. Varien, 97 Minn. 181, 106 N. W. 898 and cases cited. On the contrary, Mrs. Bakke's will seems to have been entirely just to all concerned. If contestant could prevail, all she would get is an undivided one-seventh of 80 acres of land. It was no violent assumption, therefore, on the part of the testatrix, that contestant had already received the equivalent of her share of the family property. Obviously, that is what she meant by the declaration that Mrs. Stene and her husband had received their share of her estate.

Going now to the controlling question of law as to the amount and character of proof necessary for the admission to probate of the will of a blind testator, we start with our statute concerning the execution of wills (sections 7268-7271, G. S. 1913). Our attention has been invited to no decision of this court on the subject, other than Benrud v. Anderson, 144 Minn. 111, 174 N. W. 617. It is persuasive, but not controlling. The precise question...