Johnson's Estate, In re

• Decision Date: 17 February 1956
• Docket Number: W,No. 7568,No. 15,15,7568
• Citation: 75 N.W.2d 313
• Parties: . JOHNSON, Deceased. William H. HUTCHINSON, Petitioner, v. Clementine CHARLES, Mary Charles, Ernest M. Charles, Graham C. Charles, Lil Johnson, First Congregational Church of Wahpeton, North Dakota, and Masonic Lodgeof Wahpeton, North Dakota, also known and referred to as A. F. & A. M.ahpeton, North Dakota, Respondents, Mary Charles, Clementine Charles, and Graham C. Charles, Appellants. Supreme Court of North Dakota
• Court: North Dakota Supreme Court

Page 313

75 N.W.2d 313

55 A.L.R.2d 1049

In the Matter of the Appeal from the County Court of

Richland County in the ESTATE of Helen C. JOHNSON,

Deceased.

William H. HUTCHINSON, Petitioner, v. Clementine CHARLES, Mary Charles, Ernest M. Charles, Graham

C. Charles, Lil Johnson, First Congregational Church of

Wahpeton, North Dakota, and Masonic Lodge No. 15 of

Wahpeton, North Dakota, also known and referred to as A. F.

& A. M. No. 15, Wahpeton, North Dakota, Respondents,

Mary Charles, Clementine Charles, and Graham C. Charles, Appellants.

No. 7568.

Supreme Court of North Dakota.

Feb. 17, 1956.

Syllabus by the Court.

Conmy & Conmy, Fargo, for appellants.

Clifford Schneller, Wahpeton, for respondents.

MORRIS, Judge.

On January 21, 1955, William H. Hutchinson petitioned the County Court of Richland County for the admission to probate of the will of Helen C. Johnson, deceased, and for the appointment of the petitioner as executor under the terms of the will. Among the respondents in that proceeding were Clementine Charles, Mary Charles, and Graham C. Charles, two sisters and a half brother of the deceased, who are the appellants in this court and will be referred to hereinafter as the appellants. They filed an answer and objection to the probate of the will on the ground that the will was void and of no effect because one of the witnesses thereto did not write with his name his place of residence as provided by Section 56-0302, NDRC 1943.

The county court held the will to be valid and admitted it to probate. The appellants appealed to the District Court of Richland County and now appeal to this court from the judgment of the district court affirming an order of the county court admitting the will to probate.

The sole question before us is whether the will was void because one of the subscribing witnesses did not write with his name his place of residence. It arises because in the process of revising and recodifying our statutory law sections of the 1913 Compiled Laws were rearranged and combined in the 1943 Code. The changes can best be understood by paralleling the old and new sections.

Compiled Laws 1913

'Every will, other than a nuncupapative will, must be in writing; and every will, other than an olographic will and a nuncupative will, must be executed and attested as follows:

'1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto.

'2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority.

'3. The testator must at the time of subscribing or acknowledging the same declare to the attesting witnesses that the instrument is his will; and,

'4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator's request and in his presence.' Section 5649.

'A witness to a written will must write with his name his place of residence; and a person who subscribes a testator's name by his direction must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will.' Section 5651.

NDRC 1943

'Every will, other than a nuncupative will, must be in writing.' Section 56-0301.

'Every will, other than an olographic will and a nuncupative will, must be executed and attested as follows:

'1. It must be subscribed at the end thereof by the testator himself, or some person, in his presence, and by his direction, must subscribe his name thereto;

'2. It must be subscribed in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority;

'3. The testator, at the time of subscribing or acknowledging the same, must declare to the attesting witnesses that the instrument is his will;

'4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator's request, and in his presence;

'5. A witness to a written will must write, with his name, his place of residence; and

'6. A person who subscribes a testator's name by his direction must write his own name as a witness to the will. A violation of this subsection does not affect the validity of the will.' Section 56-0302.

The reviser's note which follows Section 56-0302, supra, in the report of the code revision committee to the twenty-eighth session of the legislative assembly states:

'This section consists of a part only of C.L.1913, s. 5649 and of C.L.1913, s. 5651 because these provisions relate to cognate matter. Subs. 5 consists of the first clause of C.L.1913, s. 5651 which has not been revised in form. Subs. 6 is the second clause of the first sentence of C.L.1913, s. 5651 and has been made such subsection without a revision of its language in any respect. The last sentence of C.L.1913, s. 5651 has been made a part to subs. 6 of this section so as to leave the meaning of the language identical with its meaning in its present form.'

In Schmutzler v. North Dakota Workmen's Compensation Bureau, 78 N.D. 377, 49 N.W.2d 649, 651, after stating the general rule that ordinarily the court must interpret a statute as it reads, we said:

'In this instance, however, other principles will also have to be taken into consideration. This statute, Sec. 65-0513 is a recodification rather than a new enactment. It must be construed as a continuation of the existing statute, Sec. 1-0225, NDRC 1943. In such cases the presumption obtains that the codifiers did not intend to change the law as it formerly existed. State ex rel. Kositzky v. Prater, 48 N.D. 1240, 189 N.W. 334; Braun v. State, 40 Tex.Cr.R. 236, 49 S.W. 620, 622; United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 201, 28 L.Ed. 308. In State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 852, the court held: 'The rearrangement of sections or parts of a statute, or the placing of portions of what formerly was a single section in separate sections, does not operate to change the operation, effect or meaning of the statute unless the changes are of such nature as to manifest clearly and unmistakably a legislative intent to change the former law.'' See also State v. Tjaden, N.D., 69 N.W.2d 272.

The question here is whether the legislature in adopting Section 56-0302, NDRC 1943 intended to change not only the form of the statute but the substance of the law providing for the attestation of wills as it had existed from...