In re Estate of McKee

• Decision Date: 22 July 1937
• Docket Number: 6451
• Citation: 274 N.W. 601,67 N.D. 504
• Court: North Dakota Supreme Court

274 N.W. 601

67 N.D. 504

IN THE MATTER OF THE ESTATE OF ROBERT J. McKEE, Deceased. WILLIAM McKEE, JR., Durell McKee, Robert McKee, Jr., John McKee, Thomas McKee, Louis Rhodes, as Guardian of the Person and Estate of Sam McKee, an Incompetent Person, George McKee, Elsie McKee, et al., Appellants, v. C. S. BUCK, JR., as Acting Executor of the Alleged Last Will and Testament of Robert J. McKee, Deceased, and Anna J. McKee, Respondents

No. 6451

Supreme Court of North Dakota

July 22, 1937

Syllabus by the Court.

1. In the instant proceeding to contest a will after probate, the petition is examined, and it is held, for reasons stated in the opinion, that it states facts sufficient to constitute a cause for contest under section 8649, Comp.Laws 1913, providing that:

" When a will has been admitted to probate, any person interested therein may at any time, within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved, a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth shows:

1. That a will of later date than the one proved by the decedent revoking or changing the former will, has been discovered and is offered; or,

2. That some jurisdictional fact was wanting in the former probate or,

3. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or,

4. That the former will was not duly executed and attested. * * *"

2. On appeal from an order sustaining a demurrer to a petition for a contest of a will after probate, pursuant to section 8649, Comp.Laws 1913, on the ground that such petition fails to state facts sufficient to constitute a cause for contest, the court will not take judicial notice of matters of fact determined in the original probate proceeding.

3. Though a decree of distribution in a probate proceeding is a final determination in the proceeding in which it is entered, nevertheless the will on which it is based is subject to contest pursuant to the provisions of section 8649, Comp.Laws 1913.

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Proceeding by William McKee, Jr., and others against C. S. Buck, Jr., as acting executor of the alleged last will and testament of Robert J. McKee, and another, to contest deceased's will after probate thereof. From an order affirming an order of the county court for proponents, petitioners appeal.

Reversed and remanded.

Fredricks & Fredricks, for appellant.

If subsequent to distribution of an estate, as that of an intestate, a will is filed for probate, the will, if proper, must be admitted to probate. 3 Bancroft, Prob. Pr. pp. 1918, 1919; 18 Cyc. 636.

Where the maker of a will cannot write his name to the paper, its execution is effected by his setting his mark against his name as written for him, and by the attestation by a witness who can and does write his name. Ballow v. Collins, 36 So. 718; Houston v. State, 21 So. 813; Trust Co. v. Greenman, 63 Neb. 268, 88 N.W. 518.

A will must be executed in accordance with the statutory requirements, otherwise it is utterly void. 40 Cyc. 1097; Re Taylor, 39 S.D. 608, 165 N.W. 1079.

The rule that the testator's intention governs, applying to the interpretation of wills, does not apply to their execution. Re Taylor, 39 S.D. 608, 1079; Sears v. Sears, 11 Ann. Cas. 1008; Re Walker, 30 L.R.A. 463; Blackshere v. Northrop, 42 L.R.A.(N.S.) 454; Re McCoy, 64 Neb. 150, 89 N.W. 665.

A party writing the testator's name must state that he subscribed such name at the testator's request, and sign his own name. McGee v. Porter, 55 Am. Dec. 129.

A will which shows on its face that it was not executed according to law and which was admitted to probate is subject to collateral attack, and does not confer jurisdiction on the court to act, and its admission to probate was coram non judici. Blackshere v. Northrop, 42 L.R.A.(N.S.) 454; Re Manchester (Cal.) 163 P. 368; 40 Cyc. 1102.

Where the name of the maker it written by one person and different persons write their names as witnesses, such does not constitute a signature within the meaning of the statute. Citizens Bank v. Strickland (Okla.) 175 P. 506.

Buck & Buck and Russell D. Chase, for respondents.

How erroneous the decree to sell real estate may have been, if the court had jurisdiction of the subject matter and the parties it cannot be assailed collaterally. Shane v. Peoples, 25 N.D. 188, 141 N.W. 737; Ostlund v. Ecklund, 45 N.D. 76.

Probate is conclusive in all states and under all circumstances if there is no contest within the time limited by statute. 1 Bancroft, Prob. Pr. 306.

In probating a will, and in giving notice of such proceedings, the service is usually constructive. Re Kelly, 103 Neb. 513, 172 N.W. 758.

The probating of a will is not final as to its validity and a construction of the instrument; and such matters may be discussed and adjudicated within a year from the probate of the will or until final distribution. Lowery v. Hawker, 22 N.D. 318, 133 N.W. 918; Knight v. Harrison, 43 N.D. 76, 174 N.W. 632.

When a decree of distribution has been made, the probate court has no longer jurisdiction of the property distributed, and the distributee thenceforth has an action to recover his estate or, in proper cases, its value. Sjoli v. Hogenson, 19 N.D. 82, 122 N.W. 1008.

Nuessle, J. Christianson, Ch. J., and Burr and Morris, JJ., concur.

OPINION

NUESSLE

This proceeding to contest a will after probate was begun in the county court of Stutsman county. The respondents demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action for a will contest. The demurrer was sustained by the county court. Thereupon the petitioners appealed to the district court of Stutsman county where the order of the county court sustaining the demurrer was affirmed. The petitioners then perfected the instant appeal from the order of the district court.

The petitioners bring this proceeding under the statute, § 8649, Comp. Laws 1913, which provides:

"When a will has been admitted to probate, any person interested therein may at any time, within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved, a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth, shows:

. . .

"2. That some jurisdictional fact was wanting in the former probate; or

"3. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or

"4. That the former will was not duly executed and attested.

. . .

They challenge the probate and the validity of the will on the second, third and fourth grounds set forth in the statute. Their petition in that behalf, liberally construed, may fairly be said to set forth the following facts.

Robert J. McKee, a resident of Stutsman county, died on April 28, 1934. He left a considerable estate. He was never married and had no direct descendants. The petitioners are the surviving natural heirs at law and next of kin. None of them are residents of the state of North Dakota. Shortly after the death of the said Robert J. McKee, the respondents filed an instrument purporting to be his last will in the county court of Stutsman county, and presented a petition for its probate. Thereafter such proceedings were had that on December 24, 1934, the said will was admitted to probate and the respondent Buck duly qualified as executor therein. On the 4th day of October, 1935, a final decree was rendered and entered under which the estate of Robert J. McKee was vested in the respondent Anna J. McKee as legatee after paying the expenses incident to the probating of the estate. None of the petitioners was made a party to the probate proceeding and it is alleged that "no notice or citation of any kind was served upon any of them." The whereabouts, condition and existence of the petitioners were well known to the respondents Buck and McKee, or by the exercise of ordinary diligence should and could have been known at the time of the presentation of the will for probate and during the proceedings thereafter had. Evidence discovered since the probate of the will shows that some time prior to the making of the will and continuously thereafter to the time of his death, Robert J. McKee was incompetent and of unsound mind and memory and so feeble and sick physically and mentally that he was not able to reason and will intelligently. The will was not subscribed at the end thereof by Robert J. McKee. His purported signature appearing there was not placed thereon in his presence and by his direction by another but affixed thereto by the respondent Buck of his own motion. Buck made a cross mark thereon and wrote the words "his mark" of his own motion and not at the request of McKee. The names of the witnesses appearing in the attestation clause at the bottom of the will were not placed there at the request of McKee. At the time they were written McKee had no conception of what was being done and was incapable of directing the witnesses to attest the same. A copy of the challenged will is attached to and made a part of the petition.

A proceeding for the probate of a will is in the nature of a proceeding in rem. State v. Nieuwenhuis, 43 S.D 198, 178 N.W. 976; Carter v. Frahm, 31 S.D. 379, 141 N.W. 370; Tracy v. Muir, 151 Cal. 363, 90 P. 832, 121 Am. St. Rep. 117; Re Sieker, 89 Neb. 216, 131 N.W. 204, 35 L.R.A.(N.S.) 1058; ...