In re Boese's Estate
| Decision Date | 24 December 1942 |
| Docket Number | No. 33138.,33138. |
| Citation | 7 N.W.2d 355,213 Minn. 440 |
| Parties | In re BOESE'S ESTATE. BOESE v. LANGLEY. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.
Proceeding in the matter of the estate of Fred Boese, deceased. From an order of the probate court allowing probate of the will, Otto Boese appealed to the district court, which vacated the order of the probate court allowing the will. From an order denying her motion for a new trial, Mabel Langley (substituted by order of the Supreme Court as appellant in place of T. Wesley McMahon), appeals.
Affirmed.
Samuel P. Halpern and Max Shapiro, both of Minneapolis, for appellant.
Thomson & Williams, of Minneapolis, for respondent.
The will of Fred Boese, a resident of Hennepin county, was allowed by the probate court of that county on December 11, 1940, over the written objections of Otto Boese, a brother, respondent here, (1) that testator lacked testamentary capacity; (2) that the will was executed as the result of undue influence and fraud; and (3) that it was not duly and legally executed. The contestant appealed to the district court and there filed written propositions of law and fact setting forth the same objections to the will as in probate court.
Before trial in the district court, contestant made a motion that the issues of mental capacity and undue influence be submitted to a jury. The motion was denied May 19, 1941, by order of the Honorable Paul S. Carroll, district judge, but "without prejudice * * * to renew said motion before the Trial Court." The case was reached for trial before the Honorable Winfield W. Bardwell on June 9, 1941, at which time contestant moved to amend his propositions of law and fact by adding the allegation "that the signature on said will purporting to be his [decedent's] is a forgery," at the same time making a motion to have this issue submitted to a jury in addition to the issues of testamentary capacity and undue influence. The court allowed the amendment and, after being advised by proponent's counsel that she was not prejudiced and did not desire a continuance, ordered immediate trial of the three issues by a jury.
Three special interrogatories were submitted to the jury in the following form and order and answered as follows:
In its instructions the trial court had carefully outlined the procedure to be adopted by the jury in its deliberations, explaining that in case interrogatory No. I was answered affirmatively "it would be unnecessary to go any further"; also, if after answering interrogatory No. I in the negative the jury answered interrogatory No. II in the negative, "it would be unnecessary to go any further" to the consideration of the issue of undue influence.
After rendition of the special verdict, the trial court made and filed its findings of fact and conclusions of law reciting the fact of trial, the contents of the verdict, and adopting "the decision of the jury that the testator, Fred Boese, at the time of the execution of the alleged will, which said will the proponent Mable Langley seeks to uphold, did not have testamentary capacity." As a conclusion of law the court ordered judgment vacating the order of the probate court admitting the will to probate. The appeal here is from an order denying defendant's blended motion for amended findings or a new trial.
1. The proponent, appellant here, asserts error in the order permitting an amendment to contestant's grounds of objection to the will so as to include specifically the objection that the will was forged. She urges that such issue was not presented to the probate court and therefore could not be tried out in the district court on appeal. Clearly, however, the objection made in the probate court that the will "was not duly and legally executed" was broad enough to include forgery as an objection, for it is obvious that a will which is forged has not been duly executed by the purported testator. See Barksdale v. Davis, 114 Ala. 623, 22 So. 17; Wenning v. Teeple, 144 Ind. 189, 41 N.E. 600, and cases cited; 68 C.J., Wills, p. 974, § 739.
If proponent had asserted surprise by reason of what she calls the injection of a new issue when the case was reached for trial in district court, the court would unquestionably have granted her a reasonable continuance. This is definitely indicated by the trial court's inquiry as to whether proponent claimed prejudice by the court's ruling and whether she desired a continuance, to both of which questions counsel for proponent answered "no." Having claimed no prejudice then, proponent is hardly in a position to claim it now.
2. The jury's division on the question of forgery was equivalent to a finding against contestant, who had the burden of proof, Nichols, Shepard & Co. v. Wadsworth, 40 Minn. 547, 42 N.W. 541; Wanke v. Kreul, 225 Wis. 618, 275 N.W. 361; but a finding in favor of proponent on that issue was not conclusive as to the validity of the will. The court therefore properly received the special verdict on the issue of testamentary capacity. Schneider v. Chicago, B. & N. R. Co., 42 Minn. 68, 43 N.W. 783; Ermentraut v. Providence Washington Ins. Co., 67 Minn. 451, 70 N.W. 572. The fact that the jury divided on the first issue did not require a new trial, neither an affirmative nor a negative answer being essential to its decision on the other issues, as in the case of Tober v. Pere Marquette R. Co., 210 Mich. 129, 177 N.W. 385, relied upon by proponent.
3. But appellant now urges that by permitting the issue of forgery to be presented to the jury along with the issues of mental capacity and undue influence the jury were necessarily prejudiced against the scrivener who prepared the will and who appeared as a witness in support thereof, on the theory that such witness was thereby labeled a forger.
It has been the uniform practice in this state to dispose of all grounds of contesting a will in one proceeding, notwithstanding the grounds asserted may not be entirely consistent with each other. As an unavoidable consequence, it is not unusual to have testimony entirely irrelevant to the issue of mental capacity received and considered on the issue of due execution. The offering of such evidence in good faith should not be at the risk of having a favorable verdict on the issue of mental capacity set aside in the event the jury fails to decide the issue of due execution of the will or actually finds against the offeror of the evidence on the latter issue. Here three issues were submitted independently under instructions to consider them separately, and it must be assumed that, being unable to agree upon the issue of forgery, the jurors approached the issue of mental capacity with open minds, uninfluenced by the testimony of witnesses and their own conclusions on the issue of forgery. We cannot speculate as to whether their judgment on that issue was in any degree affected by the forgery issue.
Most law suits start out with multiple issues, some of which are in good faith withdrawn or otherwise eliminated during the course of the trial; yet that circumstance has never, so far as we know, been successfully urged as a ground for setting aside the final determination of the jury upon the issues which are left for it to determine. Such rule would subject a high percentage of verdicts to attack. Here the trial court, after hearing all the...
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