In re Estate of Knutson
| Decision Date | 07 November 1919 |
| Docket Number | 21,455 |
| Parties | IN THE MATTER OF THE ESTATE OF HALVOR KNUTSON, DECEASED, GENA BENRUD AND OTHERS v. OLE O. ANDERSON AND OTHERS |
| Court | Minnesota Supreme Court |
From an order of the probate court for Goodhue county, Ericson J., refusing to admit to probate what purported to be the last will and testament of Halvor Knutson, deceased, Gena Benrud, Hans Knutson and Mrs. Edward Olson, three of the beneficiaries under the instrument, appealed to the district court for that county. The appeal was heard by Converse, J who affirmed the order of the probate court and ordered that the appeal be dismissed. Appellants' motion to vacate the order of affirmance and for findings of fact and conclusion of law was granted, findings of fact were made, and the judgment of the probate court affirmed. The appellants then moved for certain amendments to the findings of fact and conclusion of law, or for a new trial. From an order denying this motion, they appealed. Reversed.
Will -- attesting witness, though a legatee, may prove execution.
1. Since section 7254, G.S. 1913, annuls the interest of a devisee or legatee in a will where he is an attesting witness thereto and there is but one other attesting witness, such devisee or legatee is a competent witness to prove the will.
Declarations or admissions of legatees inadmissible, when.
2. Where there are several legatees in a will, declarations or admissions by one of them, tending to cast doubt on the instrument presented for probate are not admissible, where such legatee has not taken the stand to sustain the will, and such declarations are not part of the res gestae of its execution.
Cross-examination of legatees for impeachment not permitted.
3. The contestants may not call the legatee, who has made such admissions, for cross-examination under the statute to lay the foundation for impeachment, and thus indirectly introduce that which is inadmissible directly.
When will is written in English and testator has given instructions in another language.
4. Where a will has been drawn in the English language, but all the directions as to its preparation have been given by the testator in another tongue, it may nevertheless be found to be his last will and testament, if, prior to its execution, a substantially accurate translation or explanation of its provisions is given the testator, so that he understands their meaning. It is not necessary that he should correctly appreciate their legal effect.
Testator's knowledge of will, even if it fails in part to fulfil his intention.
5. If a testator comprehends and approves the instrument as written, it should not be refused probate because it fails to carry out the intention of the testator as to part of his property.
Albert Schaller and Mohn & Mohn, for appellants.
P. B. Green and O. J. Ostensoe, for respondents.
Halvor Knutson died late in the afternoon of June 25, 1917, a resident of Goodhue county, this state. He was a widower about 84 years of age. He left no blood relatives other than nieces and nephews. Five stepchildren survived. Four of these were the children of his first wife by his deceased brother. The other stepchild, Marne, generally known as Mary Olson, was the daughter of his last wife by her first husband. At the time of his death, Halvor Knutson owned a valuable farm of 200 acres in Goodhue county, some timber land in Wisconsin, and over $6,000 in bank certificates and personal property. For some time before his death, he had made his home with his niece and stepchild Gena Benrud. His stepson Nels Knutson frequently visited him there. It appears that toward the middle of June the deceased became painfully afflicted with a swelling of the feet and legs, and he realized that death was approaching. The swelling developed into gangrene, and during the last four days of his life he was mostly in a comatose condition, incapable of transacting any business.
In the forenoon of June 25, Kenneth G. Benrud, son of Gena Benrud, came to the office of the judge of probate and left an instrument purporting to be the last will and testament of Halvor Knutson. Kenneth had drawn and witnessed the will. The other attesting witness was Nels Knutson. When afterwards presented for probate it was rejected, on the ground that the instrument was not the last will and testament of the deceased. On appeal to the district court, that court simply affirmed the probate court, making no other findings, but stating in a memorandum that the decision was based solely upon the ground that Nels Knutson, being named as legatee in the will, was incompetent to testify. Hence, as the court undoubtedly concluded, there was no legal proof of the execution of the instrument after eliminating the testimony of Nels Knutson. The court also stated that the other objections to the probate of the instrument were not supported by the evidence. Thereafter the appellants moved the court to strike out the decision made and for findings upon all the issues litigated, and also proposed findings admitting the will to probate. The court vacated the prior decision and filed findings, but not the ones proposed. Thereupon appellants moved for amended findings or a new trial. From the order denying the motion in toto this appeal is taken.
The instrument, Exhibit A, reads:
Halvor Knutson, Per K. G. Benrud.
Nels Knutson.
Kenneth G. Benrud."
The district court found that deceased was competent to make a will until about June 17, 1917, and on the twenty-first or twenty-second he became wholly irrational; that, between the sixteenth and twenty-second, he was probably at times competent; that there was no evidence of undue influence; that either on the fifteenth or twenty-fifth of June the instrument offered for probate was wholly written by Kenneth G. Benrud, "except the signature 'Nels Knutson', the decedent never read it and did not sign it or make his mark to it, and the words used in it are not his words. The evidence as to whether or not he directed Kenneth G. Benrud to prepare a will for him; as to what, if anything, he directed should be put in said purported will; as to whether the purported will was read over to him at any time or correctly explained to him; as to whether the decedent directed Kenneth G. Benrud to sign his name to it; as to whether said purported will was executed prior to June 17th, if at all, is all so unsatisfactory and contradictory and is impeached by circumstances and by the appearance of the Exhibit 'A' itself, that I feel impelled to, and do find as facts:
The findings leave a fact of utmost importance in this case at large, namely, the date on which the instrument was attempted to be executed. The court finds in the alternative, that it was either on the fifteenth, or on the twenty-fifth of June. If it took place on the twenty-fifth, there can be no doubt upon this record that the instrument proffered is not the will of the deceased, for at that time he was practically dead to this world, and any attempt to propose for probate an instrument executed on that day by him would be but a bold attempt to pass a forgery. But if the instrument was drawn and signed on the fifteenth, and the findings leave that equally probable, then the evidence properly in the case, eliminating that which should not have been received, would seem clearly, if satisfactory to the trial court, to call for its probate as the last will and testament of Halvor Knutson.
The two attesting witnesses, Nels Knutson and Kenneth G. Benrud, were the only persons who had personal knowledge of the circumstances surrounding the drawing and execution of the will. The latter did not testify in the district court, being at the time in our army at France; but, by consent of the parties, the probate judge read on the trial in the district court the notes he had taken of Kenneth's testimony on the hearing in the probate court. This necessarily precluded explanations made desirable because of new matters advanced or developed on the trial in the district court that were not even suggested in the probate court. From the memorandum filed by the district judge when he first decided the appeal, it is clear that Nels Knutson's testimony, though received at the trial, was wholly excluded from consideration, because, on reflection he came to the conclusion that the rule stated in Bowler v. Fahey, 136 Minn. 408, 162 N.W. 515, forbade its admission. It is suggested by respondents that the subsequent findings render the ruling now a moot question. We are unable to accept that view. In order that proponents might be in a better position to secure their rights, if perchance his conclusions were wrong, the court took pains to make clear that the first decision resulted because of...
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